Thursday, July 31, 2008

 

Help California DMV by writing your representative

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.

Wednesday, July 30, 2008

 

Man Charged With California DUI While Trying to Fill Car With Jet Fuel

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.

Have you been charged with CA DUI? Immediate California DUI Help at www.SanDiegoDrunkDrivingAttorney.net

Monday, July 28, 2008

 

Republican Rep pleads guilty DUI

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.

Sunday, July 27, 2008

 

California DUI Checkpoint news

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


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Forum: Police seize weapons in DUI sting
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.

Saturday, July 26, 2008

 

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Highway Patrol Sergeant smokes marijuana, causes fatal DUI accident

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.


www.SanDiegoDUIhelp.com

Thursday, July 24, 2008

 

best dui cop in california

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.

Wednesday, July 23, 2008

 

San Diego DUI carport crash

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.

www.SanDiegoDUIlawyer.com/blog

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Tuesday, July 22, 2008

 

DUI? Renting a car? Read this

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.

Monday, July 21, 2008

 

DUI Breath test (EC-IR) challenged

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.

 

Man misses drive-through at Jack in the Box, arrested for San Diego DUI

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.

www.sandiegoduilawyer.com/blog

Sunday, July 20, 2008

 

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Saturday, July 19, 2008

 

Unfortunate Suicide Defense in DUI case

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.

www.SanDiegoDUIlawyer.com/blog

Friday, July 18, 2008

 

Facebook and MySpace can get DUI probationers into trouble if they are unrepentant and flaunt it

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

 

DUI breathalyzer tests thrown out

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

 

Cops caught cheating on DUI test in Ohio

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

Thursday, July 17, 2008

 

California DUI celebrity gossip

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

Wednesday, July 16, 2008

 

Lindsay Lohan right on track in California DUI sentence compliance

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.

Monday, July 14, 2008

 

Top DUI lawyer goes after Intoxilyzer 8000

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.

 

Another day on the mountain - careful of California drunk drivers

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 Attorney - Hearing re: DMV action

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


Sunday, July 13, 2008

 

Minor California DUI penalites

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.

 

DUI coverup for cop?

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

Saturday, July 12, 2008

 

California Laws & Rumors

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

 

California DUI checkpoint info by San Diego DUI lawyers.

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

Friday, July 11, 2008

 

DMV may grant itself a continuance of the administrative hearing in California

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

Monday, July 07, 2008

 

NFL Star settles suit vs. Coronado for 5.5 million dollars

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.

 

MADD mad about its California DUI ignition interlock bill

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.

 

Top California Attorney involved in Ventura legal battle

Four days before the one-year statute of limitations was going to run out, the Ventura County district attorney filed a misdemeanor charge of driving while intoxicated against Ashley Jennifer Newell of Huntington Beach.

She was surprised.

Almost nine months earlier, a judge had discharged her case because the district attorney had not charged her with a crime, even after Newell, 26, showed up at the Ventura courthouse three months in a row as she was told to do.

Far from being a unique case, however, defense attorneys, including Newell's lawyer Ronald Jackson, say it is an example of how prosecutors are exercising their ability to file charges up to one year later in a disturbing number of misdemeanor cases in Ventura County.

"This is the only county that I know that has this problem, and I do these things all over the state," Jackson said.

The Ventura-based attorney said 20 of the 32 DUI cases he is working on in the county involve waits of several months or longer for prosecutors to file complaints.

Precise figures are unavailable on how many cases are delayed and for how long, but other defense attorneys confirm the long waits and call the situation unfair.

"To require people to wait three months to 11 months to find out the answer to the basic question of whether the district attorney believes there is enough evidence to file a charge is grossly inefficient," Ventura defense attorney Brian Vogel said. "And it denies the defendant a speedy resolution of their misdemeanor matter."

A top official in the District Attorney's Office said there are various reasons for delays, including police officers not submitting paperwork in a timely manner, increases in the workload and late laboratory DUI test results.

"We file thousands of cases. We are very busy filing and reviewing cases," Special Assistant District Attorney Michael Schwartz said.

He said the District Attorney's Office is understaffed and has requested additional clerks and lawyers from the Board of Supervisors to handle cases.

"We did receive a couple of positions in the last budget cycle," Schwartz said. "We are doing the best we can with the resources we have."

Schwartz said he "sympathizes" with defendants who have had to return to court to find out if complaints have been filed.

DUI results done in a few weeks

For its part, the sheriff's Forensics Sciences Laboratory says DUI test results are done as quickly as possible. DUI test results involving alcohol usually take two to three weeks to complete, and those involving drugs usually take two to four weeks, according to Renee Artman, forensics sciences laboratory manager.

"We are trying to turn them out as quickly as possible," Artman said. "I think we are doing relatively good."

Vincent Tucci, president of the 300-member California DUI Lawyers Association, said he doesn't know whether there are delays in DUI filings by prosecutors in Ventura County, but he has defended DUI suspects in Los Angeles, Orange, Riverside and San Bernardino counties, where such charges typically are filed within two to four months.

Tucci said timely filing ensures that a defendant's memory is fresh and that crucial evidence such as witnesses and police-dispatch tape recordings are still available.

Some police departments destroy dispatch recordings after six months. Those tapes record when DUI stops were made and other crucial evidence involving DUI arrests, Tucci said.

Defense attorney Jay Leiderman, president of the Ventura County Criminal Defense Bar Association, said he has been in courthouses in at least 10 other counties and, for the most part, misdemeanors elsewhere are filed in a less time.

"No other county is this disorganized," Leiderman said. "In other counties, if they aren't going to charge you, they don't charge you. They don't play this game."

He attributed the situation in Ventura County to "just laziness and bad management" by the District Attorney's Office.

Jackson, the Ventura lawyer representing Newell, is immediate past president of the California DUI Lawyers Association. He said other counties struggle with budget and manpower constraints and manage to file charges within a few weeks or months after an arrest.

He said people suffer "anxiety and anguish" if they have to wait nearly a year to find out if criminal charges are going to be filed.

Jackson and other defense attorneys say that when no criminal charges are filed quickly and a case is delayed, the accused person has to return to the courthouse — or pay his lawyer to do that — which runs up costs for travel, legal fees, time off from work and more. Until a criminal complaint is filed, a defendant can't enter a plea.

Motion to dismiss rejected

Jackson, so far, has been unsuccessful in getting judges to toss out some of the delayed convictions on constitutional grounds, based on the right to a speedy trial.

On May 8, he argued before Ventura County Superior Court Judge Rebecca Riley, who denied Jackson's legal motion to dismiss Newell's DUI charges.

Next, Jackson asked the county Superior Court's Appellate Division to revoke Riley's decision. On June 19, without a hearing or comment, the county's Appellate Division — Judge Barry Klopfer along with Judges Harry Walsh and Kent Kellegrew — denied it.

Jackson said state law doesn't allow him to take this case to a higher appellate court.

In a similar case, Jackson filed a writ of mandate with the county's Appellate Division for another client, Christoper Reimers, who was arrested on suspicion of DUI on Jan. 19, 2007. Prosecutors filed the criminal complaint against Reimers more than eight months later, on Sept. 5.

Reimers pleaded guilty to DUI on Feb. 28, according to court records.

Jackson appealed the Reimers case based on his right to a speedy trial. That case is scheduled to be heard by the Appellate Division on Aug. 8.

To determine whether the Speedy Trial Act was violated, judges consider such things as reasons for the delays and whether those delays were prejudicial against the defendant, said Schwartz, the special assistant district attorney. "For example, have witnesses disappeared?" Schwartz said.

The judge can, in the interest of justice, dismiss the case if a violation has occurred, Schwartz said.

Leiderman said that never happens, adding that judges share the responsibility for the situation in the county by allowing prosecutors frequently to submit late criminal charges.

Presiding Superior Court Judge Colleen Toy White declined to comment for this report, citing judicial ethical concerns and pending litigation.

Leiderman noted that sometimes judges "discharge" defendants if charges have not been filed. A defendant who is discharged may then incorrectly believe that he or she isn't going to be prosecuted, he said. But prosecutors still can file complaints before the one-year statute of limitations runs out.

Being discharged simply means that a person is no longer under the court's control or under a bail, Leiderman said. If a charge is filed by the district attorney, people are notified by mail, defense attorneys say. But in some cases, they've moved away, don't get the letters and are unaware that charges have been filed, Leiderman said.

Did not act in bad faith

In the Newell case, Jackson said his client was arrested on suspicion of driving while intoxicated Nov. 19, 2006.

She was issued a Notice to Appear on Dec. 20, Jan. 21 and Feb. 21, at which time she was "discharged" by a judge. The district attorney filed a criminal complaint Nov. 15, 2007.

Schwartz said that he understands how delays can burden defendants, but that misdemeanor charges are serious and are going to be filed once the evidence is gathered.

In a petition opposing the motion to dismiss, submitted to Riley in the Newell case, the district attorney said that prosecutors did not act in bad faith, and that the filing of a complaint within a year didn't constitute a trial delay.

Sunday, July 06, 2008

 

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Saturday, July 05, 2008

 

Now 100 Intoxilyzer DUI cases thrown out by Arizona Court

TUCSON CITY COURT

103 E ALAMEDA • P.O. Box 27210 • Tucson, Arizona 85725-7210 • Phone (520) 791-4216

State of Arizona
Vs.

JASON MATTHEW

PRESTINARIO, et al.

Defendant
Docket Number
TR-07011490
Citation Number
6664477
Agency Number

COURT’S RULING RE: INTOXILIZER 8000 SOURCE CODE
Consolidate Defendants have all been charged with violations of A.R.S. §28-1381 A(2) and/or §28-1382. All were tested for their blood alcohol content using the Intoxilizer 8000, manufactured by CMI, inc. This Court has previously ruled that defendants have a due process right under the Sixth Amendment of the United State Constitution and Art. 2, Sec 24 of the Arizona Constitution to examine the source code1 for the Intoxilizer 8000 in those cases where the State intends to use the reading from the machine as evidence against the defendant at trial. The Sixth Amendment to the United States Constitution and Art. 2, sec 24 of the Arizona Constitution guarantee a defendant in a criminal case the right to confront his accusers and to effective assistance of counsel. The cross-examiner has traditionally been allowed to impeach, i.e., discredit, the evidence and witnesses against him. Davis v. Alaska, 415 U.S. 308, (1974). Inherent in the right of confrontation is the right of meaningful cross-examination of adverse witness, and includes the right to examine all relevant documents. Davis v. Alaska, 415 U.S. 308, (1974); State ex. Rel. Romley v. Superior Court, 172 Ariz 232, 836 P.2d 445 (App 1992); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400 (1959) (holding that where governmental action has the potential to seriously injure an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.)

CMI, inc. agreed to disclose a print version of the source code if the Defendants agreed to enter into a non-disclosure agreement and pay for production of the documents (the “Minnesota Agreement”). The Court found that on balance disclosure of the printed version of the source code was sufficient and ordered that a printed version of the source code be disclosed by April 25, 2008. To date neither the State nor CMI has disclosed the source code in any format. CMI has withdrawn the Minnesota Agreement and proposes a new agreement with more onerous terms. The Defendants assert that CMI will not turn over the source code under any condition. The Intoxilizer 8000 is used by agencies in at least 17 states, and the State concedes that it knows of no instance where CMI, inc. has disclosed its source code in any format.

The Defendants filed a Motion to Dismiss and Request for Additional Remedies. The Defendants request the Court impose the following remedies and sanctions: 1) dismiss the cases in their entirety, or 2) suppress the results of the breath tests and 3) assess monetary sanctions against CMI, inc.

The State argues that dismissal of the charges or suppression of breath tests results is an impermissibly sanction against the State. The State asserts that it has met the requirements of Rule 15 of the Arizona Rules of Criminal Procedure because it has disclosed all relevant information in its possession and that it has no access to the source code, which is proprietary with CMI. This begs the question. Arizona Rules of Criminal Procedure, Rule 15.1 (f) (3) requires the prosecutor to disclose material and information in the possession or control of person who has participated in the investigation or evaluation of the case and who is under the prosecutor’s direction or control. Our Courts have held that an agency participating in a criminal investigation operates as an arm of the prosecutor in matters of discovery. State v. Meza, 203 Ariz. 50, 50 P.3d 407 Ariz App, 2002). When such an agency is recalcitrant and withholds discovery its conduct is the State's conduct, even if the State has acted in good faith. State v. Meza, id. The State is the party that uses the Intoxilizer 8000 in the field. In almost every DUI trial the State is the party that seeks to introduce evidence of an intoxilizer reading. The State is the party that contracted with CMI, inc. to purchase the Intoxilizer 8000. Yet the State has made no attempt to obtain the source code from CMI.2 The State cannot abrogate its Rule 15 disclosure obligations merely by contracting them away or feigning disassociation from CMI.

The State argues that suppression is precluded by A.R.S. 28-1323 (C), which provides for the admissibility of breath testing results despite the “inability of any person to obtain manufacturers’ schematics and software.” However, our Courts have consistently held that state laws providing for non-disclosure of information to criminal defendants must, in some situations, yield to the constitutional confrontation rights of the accuse. State ex. Rel. Romley v. Superior Court, supra; State v. Morales, 129 Ariz. 283, 630 P.2d 1015 (1981) (holding that statutes prohibiting discovery of juvenile court records and Department of Corrections records could not be used to prevent discovery when the information sought was necessary to a criminal defendant's right to confront witnesses against him.); see also, Hospital Corp. of America v. Superior Court of Pima, 157 Ariz. 210, 755 P.2d 1198 (1988). Testimony from the defense expert credibly established anomalies and inaccuracies in the Intoxilizer 8000 that could be explained by a review of the source code. Just as a defendant has a right through cross-examination to impeach and discredit an adverse witness so too does the defendant have a right to dispute his blood alcohol reading and to discredit, if possible, the machine used to obtain that reading. To deny the defendant the right to fully examine and, if appropriate, discredit the Intoxilizer 8000 denies the defendant his right to due process. The right to examine the Intoxilizer 8000 must include the right to review the machine’s source code.

The Court concurs with the State that dismissal is not a proper remedy. See A.R. Crim. P. 16.6(b); Mejak v. Granville, 212 Ariz 555, 136 P.3d 874 (2006). The Court denies the motion to dismiss. CMI was not served with process in this case - as such, the Court does not have the authority to assess monetary sanctions against CMI, inc. The Court denies the motion for monetary sanctions against CMI, inc. at this time. The Court finds that an appropriate remedy for non-disclosure of the Intoxilizer 8000 source code is preclusion of any breath tests results done on the Intoxilizer 8000 where the “source code” and any related “Arizona software” has not been disclosed. The Court grants the defendants’ motion to suppress the breath test readings in the instant cases.

July 3, 2008 S.Q. Shetter

Date Magistrate, Tucson City Court

X File X Attorney X Defendant X Prosecutor Probation Other

COPIES TO:

DEFENDANT DOCKET NUMBER ATTORNEY
BALL, CHARITY LOUISE TR-07032561 Dina Dieglio
BLAIR, JAMES DALE TR-07041058 PD
BLANK, DANIELLE W TR-07079069 DAN COOPER
BOLES, SARA TR-07105827 PD
BORBON, CARLOS A CR-07078834 PD
CAYLOR, CHRISTOPHER TR-07047670 JEFF SIRTOLA
CONTRERAS, JOSE R TR-07025041 JEFFREY JACOBSON
COTA, GASPER A TR-07124968
CR-07040341

TR-08036085
PD
DIXON, DAVID BRUCE TR-07047165 MICHAEL ROTH
FLETCHER, JOHN RICHARD TR-08008000 PD
FLYNN, MICHAEL SHANNON TR-07122518
TR-08012237
DINA DIEGLIO
GODINEZ, JOHNNY LEE TR-07061039 PD
GONGORA, SUSAN FRANCO TR-07037439 PD
GONZALES, JACQUELINE M TR-08016691 PD
GONZALEZ, RICARDO TR-07034715 STEPHANIE BOND
GRAVES, STEPHEN HOUSTON TR-07071286 PETE GUTIERREZ
GREGORY, STEVEN MICHAEL TR-07095973 DAN MONTGOMERY
GROEN, ALAN DUANE TR-07040565 ALEC HANUS
HERNANDEZ, EDDIE J TR-07056148 PD
HILDEBRAND, TRENT TR-08028855 PD
KAY, LUCAS EDWARD TR-07001409
TR-07040448
PD
LEWIS, EDGAR ALFRED TR-06004718 MARK RESNICK
LISTER, MEGAN J TR-08039375 JAMES STUEHRINGER
MACK, PATRICK ALAN TR-06091755
MARSHALL, HEATH MICHAEL TR-07085963 STEPHEN P BARNARD
MARTINEZ, APRIL ANNMARIE TR-07053912 PD
MEDINA, JESUS ANDRES TR-07076271 RICARDO BRACAMONTE
MILLER, LAUREN ELIZABETH TR-07124177 JAMES WADLEIGH
MORSE, TRISTA K TR-07056149 PD
OGORMAN, SCOTT THOMAS TR-08041510 PD
PRESTINARIO, JASON MATTHEW TR-07011490 JAMES NESCI
RAMAZANOGLU, KUDDUSI TR-07081589 JAMES CHARNESKY
RAMIREZ, JESSE JOHN TR-07084530 PD
RIDGE, JAMES DAVID TR-07124341 STEPHEN P BARNARD
SALDANA, RAUL S TR-08035936 PD
SOSSOUDOSSOU, KOKOU TR-07073436 PD
STASZAK, AMANDA ROSE TR-07057214
TR-07114170
PD
STOVER, JAMES HARLAN TR-07036963 PD
TACKETT, JESSIE LEEANN TR-08002041 LARRY LINGEMAN
THOMAS, PILAR MARIA TR-07119359 JEFFREY BARTOLINO
THOMAS, WAYNE MICHAEL TR-07090337 PD
TRESTIK, DYLAN ELY TR-08039128 PD
ULIBARRI, MANUEL ANTHONY TR-07045761 PD
WILLIE, GARY TR-08018708 PD
KENNEDY, JEREMY TR-7117276
FRICKE, GRACE TR-7127492
TOWNS, CHRISTOPHER TR-7040437 PETER A GUTIERREZ
GORECKI, KRISTOPHER TR-8009450
PERRYMAN, DUTCH
BASIL, TRAVIS
LOPEZ, ROBERT MICHAEL



1 A source code is a computer code written in a recognized programming language that can be converted into machine code.



2 In contrast, the State of Minnesota has sued CMI alleging its failure to disclose the source code impedes it ability to prosecute DUI/BAC cases. See, Browning, “State sues make of breath testers used in DWI arrests”, Minnesota Star Tribune, April 18, 2008.


sandiegodrunkdrivingattorney.net/articles

 

Premier San Diego DUI Lawyers / San Diego Drunk Driving Attorneys


San Diego DUI lawyer Fourth of July arrest update

San Diego Drunk Driving attorneys report that the California Highway Patrol officers made 85 arrests for drunken driving within San Diego County during the first day and a half of the holiday weekend, San Diego DUI lawyers affirmed.

Statewide, 13 people have died in crashes and 971 people were arrested for suspected DUIs, according to San Diego DUI attorneys.

There are no comparable numbers for last year since July 4 did not fall next to a weekend, according to San Diego DUI criminal defense lawyers.

San Diego DUI criminal defense attorneys that in the last similar July 4 weekend, in 2003, there were zero fatalities in San Diego County and 59 San Diego DUI arrests.

The San Diego DUI statistics are compiled during each holiday period as part of a CHP maximum enforcement program. The fatality statistics cover all jurisdictions in California. The DUI figures are only arrests by CHP officers.


Premier San Diego DUI Lawyers / San Diego Drunk Driving Attorneys:

San Diego DUI Lawyer


San Diego DUI


California DUI Attorney


San Diego DUI Help


 

DUI FAQ

Drunk Driving / California DUI FAQ

Answers to your California DUI questions on legal limits, chemical tests and hiring a lawyer in the event you're charged with driving under the influence.

How drunk or high does someone have to be before he can be convicted of California DUI - driving under the influence?

In most states, it's illegal to drive a car while "impaired" by the effects of alcohol or drugs (including prescription drugs). This means that there must be enough alcohol or drugs in the driver's body to prevent him from thinking clearly or driving safely. Many people reach this level well before they'd be considered "drunk" or "stoned."

How can the California DUI police find out whether a driver is under the influence?

California DUI Police typically use three methods of determining whether a driver has had too much to be driving:

California DUI Observation.

A police officer will pull you over if he notices that you are driving erratically -- swerving, speeding, failing to stop or even driving too slowly. Of course, you may have a good explanation for your driving (tiredness, for example), but an officer is unlikely to buy your story if he smells alcohol on your breath or notices slurred words or unsteady movements.

California DUI Sobriety tests.

If an officer suspects that you are under the influence, he will probably ask you to get out of the car and perform a series of balance and speech tests, such as standing on one leg, walking a straight line heel-to-toe or reciting a line of letters or numbers. The officer will look closely at your eyes, checking for pupil enlargement or constriction, which can be evidence of intoxication. If you fail these tests, the officer may arrest you or ask you to take a chemical test.
Blood-alcohol level. The amount of alcohol in your body is understood by measuring the amount of alcohol in your blood. This measurement can be taken directly, by drawing a sample of your blood, or it can be calculated by applying a mathematical formula to the amount of alcohol in your breath or urine. Some states give you a choice of whether to take a breath, blood or urine test -- others do not. If you test at or above the level of intoxication for your state (.08 to .10 % blood-alcohol concentration, depending on the state), you are presumed to be driving under the influence unless you can convince a judge or jury that your judgment was not impaired and you were not driving dangerously. Defense attorneys often question the validity of the conversion formula when driver's alcohol levels are based on breath or urine tests.

Do I have to take a blood, breath or urine test if asked to do so by the police?

No, but it may be in your best interests to take the test. Many states will automatically suspend your license for a year if you refuse to take a chemical test. And if your drunk driving case goes to trial, the California DUI prosecutor can tell the jury that you wouldn't take the test, which may lead the jury members to conclude that you refused because you were, in fact, drunk or stoned.

If I'm stopping for driving under the influence, am I entitled to talk to an
attorney before I decide which chemical test to take?

The answer depends on where you live. In California, for example, you don't have the right to speak with a California DUI attorney first. But many other states, including Arizona and Kansas, allow you to talk to your lawyer before you take a chemical test.

If I'm taken in for driving under the influence, can a police officer ask me questions on the way to the station without reading me my rights?

Yes, they can. In most situations, this type of questioning would be a violation of your constitutional rights. But the U.S. Supreme Court has held that drunk driving cases are different from most, and that officers may ask you questions while you're riding in the back of the police car -- without reading you your rights (including the right to remain silent, the warning that anything you say may be used against you at trial and the right to have a lawyer).

I've been charged with drunk driving. Should I get a California DUI lawyer?

Defending against a charge of drunk driving is a tricky business. Defenders need to understand scientific and medical concepts, and must be able to question tough witnesses, including scientists and police officers. If you want to fight your drunk driving charge, you're well advised to hire a California DUI attorney who specializes in these types of cases.

sandiegoduilawyer.com

Friday, July 04, 2008

 

.000 BAC / Drug -free DUI arrestee threatens to sue

A good number for those charged in DUI cases: a 0.000 on the blood-alcohol breath test.

Gary Shuchat hit quadruple zeros, but that was not enough to win his freedom after a traffic stop in May.

A Manatee County sheriff's deputy said Shuchat failed field sobriety tests, even though Shuchat showed no obvious signs of impairment. He was not slurring words. His eyes were fine. There was no odor of alcohol.

Shuchat said the deputy thought he was on cocaine.

Authorities got a urine sample from Shuchat, which came back clean a few weeks ago. No drugs. No alcohol. A state prosecutor dropped the case.

"Actual innocence," said Shuchat's attorney, Mark Lipinski, who called the 0.000 on the breath test a rarity in drunken-driving cases.

Florida drivers are considered intoxicated at 0.08 and above.

Shuchat, 54, an executive at a lumber company in Canada, will not let his arrest slide as a mere inconvenience or a story to tell about American police. He wants to sue the Sheriff's Office, calling his arrest in Bradenton a terrifying experience.

"This was the most degrading and dehumanizing thing I have ever been through," Shuchat said. "This was crazy. I was not drunk."

Last year, out of the 1,008 breath tests given by Manatee deputies, 23 people had results of 0.000.

DUI cases are inherently problematic because each driver is different. Some faces are naturally red. Some speech is naturally slurred.

A bigger person may have a harder time doing field-sobriety tests, such as walking a straight line, than a person who is slender.

In the legal defense community, field sobriety tests are dubbed "abnormal" exercises used to test "normal" abilities.

Authorities who are challenged in lawsuits routinely say that police act in good faith, that a stop and a detention were performed within the scope of the officer's duties.

Deputies ask drivers about any physical problems that may prevent them from completing field-sobriety exercises. Shuchat weighs more than 250 pounds and is 6 feet, 1 inch tall.

He said he did not have any physical or medical ailments.

If a person is arrested after field-sobriety tests, deputies are not going to free the person based on 0.000 on the breath test, Capt. William Dixon of the Manatee County Sheriff's Office said. The driver is detained, and presumed impaired, before the breath test is given.

Deputies have discretion in using a portable breath test in cases in which the deputy thinks the person may be impaired, but not enough to support a criminal DUI case. The driver will not be arrested. The results are not allowed in court. The portable breath test is meant to compel the person to find another way home.

It was not immediately known why Deputy Lee Harrington did not use a portable breath test on Shuchat. Whether Harrington had one that night, or could not get one, has not been determined.

Dixon said it was in Harrington's discretion to arrest Shuchat on suspicion of DUI.

Another deputy, Michael Lesselroth, said Shuchat was weaving in a lane in the 2300 block of 53rd Avenue West at about 11 p.m. the night he was arrested.

"How do you weave in a lane? I've never heard of that before," Shuchat said in an interview.

Lesselroth said he swerved in his patrol car to avoid a collision with Shuchat, who was driving a rented Dodge Durango. Shuchat, the deputy said, "swayed" in the driver's seat of his car.

The deputy called Harrington to conduct a DUI examination.

Shuchat said he had a glass of wine during dinner at a Sarasota steakhouse, a statement that Harrington reported in his write-up.

Harrington asked Shuchat to walk on a piece of tape, heel to toe. Shuchat had trouble with his balance and stepped off the line, according to a report.

Shuchat was told to use his eyes to follow a light in front of him. Deputies said he moved his head to track the light.

Shuchat was arrested. At a sheriff's station, he breath came came up 0.000. Harrington thought it was a mistake, Shuchat recalled, and told him to blow harder.

"I'm blowing my brains out," Shuchat said. Shuchat again blew 0.000.

Shuchat told Harrington to free him.

But the deputy said he could not leave. Shuchat was ordered to give urine for analysis.

Authorities say a person who is under the influence of a drug and who has not been drinking will register 0.000 on the breath test.

Shuchat spent several hours in jail before he posted $500 bail. A prosecutor last month said there was insufficient evidence against Shuchat.

"Charlie Chan used to say, 'Never hunt rabbit with a dead dog,'" Lipinski said. "That's what they are doing here: a DUI case with triple zeros and clean urine."

sandiegodui.com

 

California Highway Patrol officers will be on high alert today as motorists make their way through the Santa Clarita Valley during the Fourth of July

San Diego DUI lawyers are told that California Highway Patrol officers will be on high alert today as motorists make their way through the Santa Clarita Valley during the Fourth of July weekend.

“The summer is in full swing and everyone wants to squeeze in as much fun as possible,” said Lt. Ralph Elvira, acting commander of the CHP Newhall area office. “Traffic volumes may be high, and unfortunately, so is the potential for collisions.”

Statewide there were 568 drunk-driving arrests and 18 people died in vehicle-related crashes last year, according to a CHP report.

This year, the CHP will be patrolling local highways during a “Maximum Enforcement Period” that began at 6:01 p.m. Thursday and ends at midnight on Sunday.

The safe driving recommendations made by the CHP include: designating a non-drinking driver, wearing seat belts, maintaining safe speeds for conditions and obeying all traffic laws.


SanDiegoDuihelp.com

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