San Diego DUI criminal defense lawyers at www.SanDiegoDUI.com and San Diego Drunk Driving criminal defense attorneys at www.SanDiegoDUIhelp.com report a new California DUI case:

Filed 10/31/08 P. v. Watkins CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

PATRICIA ANN WATKINS,

Defendant and Appellant.


E044737

(Super.Ct.No. INF056638)

OPINION


APPEAL from the Superior Court of Riverside County. Thomas N. Douglass, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed with directions.
Marylou Hillberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Patricia Ann Watkins was charged with vehicular manslaughter with gross negligence (Pen. Code, § 191.5, subd. (a); Veh. Code, §§ 23152, 23153), driving under the influence of alcohol and drugs (Veh. Code, § 23153, subd. (a)), driving while having a blood alcohol level of .15 percent, causing death or bodily injury (Veh. Code, §§ 23153, subd. (b), 23558, 23578), and driving without a valid driver’s license (Veh. Code, § 12500, subd. (a)). Defendant entered a plea agreement, pled guilty to all charges and enhancements, and was later sentenced to a total of 12 years in state prison. On appeal, defendant claims she could not be sentenced to more than eight years four months, as stated in the plea agreement. The People correctly concede. Accordingly, we will modify defendant’s sentence and affirm the judgment as modified.
FACTUAL BACKGROUND
On November 29, 2006, defendant drove her car after she had been drinking alcohol. She was driving at speeds from 60 to 80 miles per hour when she rear-ended a car and caused a chain reaction and five-car pileup. One victim was killed and two were injured. Defendant had a blood alcohol level of .20 percent, and she was driving without a valid license.
DISCUSSION
The Maximum Term of Confinement Was Eight Years Four Months
Defendant argues that her sentence must be reduced to the maximum term of eight years four months in prison, as specified in the plea agreement. The People concede and we agree.
A. Background
The second page of defendant’s plea agreement stated that the maximum possible custody commitment for the admitted charges and enhancements was eight years four months. Defendant pled guilty in open court pursuant to the terms of the plea agreement. Defendant also agreed that a different judge could conduct the subsequent sentencing hearing.
At sentencing, the court imposed the upper term for the manslaughter conviction, plus two 1-year enhancements, for a total of 12 years in state prison.
B. The Sentence Should Be Modified
Penal Code section 1192.5 provides, in relevant part, that where a guilty plea “is accepted by the prosecuting attorney in open court and is approved by the court, the defendant, except as otherwise provided in this section, cannot be sentenced on the plea to a punishment more severe than that specified in the plea and the court may not proceed as to the plea other than as specified in the plea.” (Italics added.) In other words, “[w]hen a guilty plea is entered in exchange for specified benefits such as . . . an agreed maximum punishment, both parties, including the state, must abide by the terms of the agreement. The punishment may not significantly exceed that which the parties agreed upon.” (People v. Walker (1991) 54 Cal.3d 1013, 1024.)
Here, the plea was made to the court and was impliedly accepted by the prosecution. The prosecution provided the factual basis for the plea, and did not object to the plea. The agreed upon maximum term in the plea agreement was eight years four months. Thus, the court erred in imposing a 12-year term. The sentence must be changed to conform to the plea agreement.
DISPOSITION
Defendant’s sentence is modified by reducing it to eight years four months. The trial court is directed to prepare an amended abstract of judgment that reflects the modified sentence and to forward copies of that amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST
J.

We concur:

RAMIREZ
P.J.

MILLER
J.

San Diego California DUI criminal defense lawyers at www.SanDiegoDUI.com and www.SanDiegoDrunkDrivingAttorney.net warn Upland police to conduct DUI patrols this weekend

Upland police will have extra California DUI officers on the roads Friday and Saturday between the hours of 9 p.m. and 3 a.m.

California DUI Officers will look for motorists who have had too much alcohol, according to California DUI criminal defense attorneys at www.SanDiegoduilawyer.com.

The goal of the extra California DUI patrols is to both educate the public on the dangers of drunken driving and get inebriated motorists off the streets.

Funding for the California DUI patrols is provided by a grant from the California Office of Traffic Safety through the National Highway Safety Administration.

San Diego California DUI criminal defense lawyers at www.SanDiegoDUI.com report a brain injured auto accident victim has $10.5 million reasons to be thankful after receiving a large monetary award in court.

The sum of $10.5 million was awarded to brain injury victim M. Lopez and her family in a Fresno courtroom. This was one of the largest monetary judgments ever assigned in Fresno County case of drunken driving.

June 9, 2007 was the day J. C. Ramirez, an employee of the Disabled American Veterans (DAV) Charities of Central California, chose to drive drunk. He was driving a dump truck used by the organization when he ran a stop sign at the corner of Church and Valentine. The truck, weighing 20,000 pounds, was traveling at 25 to 30 miles per hour when it struck and broadsided the brain injury victim.

Ramirez plead guilty, in an earlier court appearance, to charges of driving drunk. Ramirez was evidently drunk when he arrived at work on June 9th. He was allowed to operate the truck regardless of alcohol consumption.

A word of caution to employers: Make sure your workers ar not driving drunk or operating machinery while intoxicated. There is a good chance that the employer can and will be held liable. Take a close look at today's jury verdict.

The jury assigned the employer, DAV Charities the responsibility of $4 million in medical expenses covering past as well as future events. They awarded an additional $6.5 million to the family for pain and suffering equated with the injuries Lopez will live with for the rest of her life.

The brain injury victim in this case is a 57-year-old minimum wage earner . Since June 9th, she has been in hospitals and injured in the accident. She has been in hospitals and nursing homes. .

The size of the award is a first for the Fresno area. Large sums in cases of such severe brain injury have long been recognized as appropriate in other areas of California, according to San Diego DUI criminal defense attorneys at www.SanDiegoDUIhelp.com and www.SanDiegoduilawyer.com .

Fudged Breathalyzer Tests Questions DUI Arrests

Inspector Turned Machines Off When They Appeared About To Fail Throwing Into Doubt Thousands Of Drunk Driving Citations

MIAMI (another leading CBS4 story) ― Defense attorneys were in a Miami courtroom on Thursday seeking a judge's order to inspect the hard drives every breathalyzer machine used in Miami-Dade county.

Before Judge Jose L. Fernandez, attorney Michael Catalano said, "We're interested to find why she was unplugging breath machines so that she could cover up mistakes and not tell anybody."

This comes after the Florida Department of Law Enforcement fired the examiner who was responsible for testing all the DUI machines, alleging she failed to follow protocol with the inspections.

Defense attorneys contend it is a scandal that puts suspicion over thousands of DUI cases in Monroe, Broward and Miami Dade.

"The number of cases involved could be as many as 10,000 here in Miami-Dade County," attorney Richard Hersch explained to CBS4 reporter Gary Nelson. "The inspector who has been discharged here was on duty for about 18 months before she was discharged."

In a "notice of dismissal", the FDLE accuses analyst Sandra Veiga of having encouraged police agencies to abort tests on Intoxilyzer 8000 machines that were giving questionable results.

"What the inspector was doing," Hersch said, "was unplugging the machine if the inspection was failing, then plugging it back in; that prevented the machines from reporting the malfunctions to Tallahassee."

FDLE documents revealed that Miami-Dade and Miami Beach police apparently blew the whistle on the state's testing supervisor.

Miami-Dade's state attorney believes the breath test scandal can be overcome, that the machines in question have passed subsequent inspections and have been shown to be operating properly. The devices run on a computerized system.

Outside the courtroom on Thursday, assistant state prosecutor Pat Trese said, "We have every belief they're working accurately and in a responsible way."

The Intoxilyzer 8000 is the only breath test machine approved for use in Florida, there are more than 300 in use statewide (30 in South Florida).

Defense attorney Justin Beckham told CBS4, "We're going to try to get the judges to open up these machines and see what the truth is - the truth is supposed to come out, that's our job."

Late Wednesday, an FDLE spokesperson said the case was "closed" and there would be no criminal charges pursued against Veiga.

The FDLE's Heather Smith added that the inspector "didn't follow proper procedures."

"She failed to follow the correct testing protocol and would pull the plug on the machine, rather than let it finish the test and record her errors," Smith said.

"It was not machine failure, but operator failure," Smith said.

In his letter firing Veiga, FDLE Commissioner Gerald Bailey wrote that she had "brought discredit" to the department and it's breath alcohol testing program.

Veiga did not want to give an on-camera statement to CBS4 but did say she will be appealing her termination.

http://cbs4.com/local/Miami.FDLE.Tester.2.841421.html. For more info & great writers, visit http://cbs4.com .

San Diego DUI Criminal Defense Lawyers at www.SanDiegoDUIlawyer.com and San Diego Drunk Driving / DWI Criminal Defense Attorneys at www.SanDiegoDrunkDrivingAttorney.net report that thousands of drunk driving cases in the Houston area could be dismissed because of an inspector of alcohol breath test machines who didn't conduct the examinations she claimed to have completed.

The Texas Department of Public Safety announced Friday that it suspended the certification for a woman who contracted to keep the breath test machines accurate for the Clute, Friendswood, Galveston, League City, Pearland, Seabrook, South Houston and Webster police departments.

DPS said she altered electronic records to make it appear she'd tested and adjusted the calibrations of machines when she had not.

DPS officials said the woman, an independent contractor with each of the municipalities, had been falsifying records for up to a year and that would affect at least 2,600 DWI charges. The Texas Rangers are conducting the criminal investigation.

She has not been charged with any crime.

The inspector has been a breath test supervisor since the mid-1990s, according to DPS.

Drunk Driving / DWI Criminal Defense lawyers said they would expect any charges filed in cases in which she testified or monitored going back years to be challenged.

"These are serious allegations, and we will not tolerate any activities that call into question the integrity of the breath test system. I want to emphasize that DPS discovered these irregularities and took immediate action," said Col. Stan Clark, interim director of the DPS, in a news release.

DPS spokeswoman Tela Mange said the problem was discovered in a routine audit last week; the inspector was suspended on Thursday; and DPS met with the prosecutors in Harris, Galveston and Brazoria counties Friday to discuss the next steps.

The news was troubling for the police departments whose work might be undone.

"It's sickening," said Clute Police Chief Mark Wicker. "It's very disturbing."

He said the woman was hired in his city in mid-2006. "I didn't see her a whole lot, but she had a key and could have come in at night," Wicker said.

He said 46 DWI cases in Clute and the cities of Freeport and Richwood, which also used Clute's machine, could be in trouble.

South Houston Police Chief Herbert Gilbert said his city paid her $8,500 a year to take care of their machine. Now, he said, about 330 cases his officers worked hard to make could be in jeopardy.

"It could make all the officers did on the streets be for naught," Gilbert said.

DWI Criminal Defense attorneys who handle DWI cases were outraged for different reasons.

"We shouldn't be going around giving people criminal records that will last the rest of their lives based on this woman's violation of the public trust," said Mark Bennett, who said the inspector was a witness in a DWI case he handled.

Troy McKinney, a Houston lawyer who specializes in DWI appeals, said this is especially tragic given that there are already questions about the science of these tests and a DWI conviction can be career changing for people.

He said he expects many people convicted or accused of DWI in these eight municipalities will hire lawyers to try to reverse convictions or get current cases dismissed. But McKinney cautioned that when there is other evidence, such as field sobriety tests or videos of the defendants, the cases may not go away just because of the breath test. If the woman testified in a trial, it might just be retried, he said.

Filing false government documents or perjury for testimony about the machines could both be possible charges against the inspector, drunk driving criminal defense attorneys said.

Harris County District Attorney Kenneth Magidson said in a news release that his office "has not announced" any charges.

"Our first and foremost goal is to ensure that justice is done. We are working closely with DPS to determine which, if any, cases may have been tainted by flawed or unreliable evidence," Magidson said in the release.

Richard Magness, Brazoria County first assistant district attorney, said authorities will get the names of the cases in question from DPS, notify the attorneys involved and review each case. Magness said it is not yet determined whether any charges will be filed against the inspector. www.SanDiegoDUI.com

San Diego DUI attorneys at www.SAnDiegoduihelp.com & www.SanDiegoduilawyer.com/blog report On Thursday, October 23, 2008, the Escondido Police Department’s Special Investigations Unit (SIU), in conjunction with the State of California Alcohol Beverage Control (ABC), conducted a shoulder tap operation. During these operations, decoys under the age of twenty-one approached adults outside several ABC licensed establishments in the City of Escondido. The decoys in this operation contacted several adults and asked if they would purchase alcohol for them.

During this operation, four locations were visited and approximately nineteen adults were approached and asked to purchase alcohol. As a result, two adult men agreed to make purchases for the decoys.

The SIU/ABC team issued a citation to Nathan Nguyen, 35, of Escondido CA. for furnishing alcohol to a minor, a violation of B&P 22658 (a).

Brandon Smith, 32, of El Cajon CA. was placed under arrest when it was discovered that he had three outstanding felony warrants for his arrest. Additionally, detectives discovered an unloaded shotgun in his vehicle. Smith was charged with furnishing alcohol to a minor, a violation of B&P 22658 (a), and PC 12021 (a), felon in possession of a firearm.

These types of checks, as well as other types of ABC operations, are being conducted throughout the year with funding from a recent ABC grant awarded to the Escondido Police Department.

California Drunk Driving Laws, Penalties & Fines
The DUI Calculator

California Teen Driving Laws & Insurance Requirements
California Text Messaging Ban
California Teen Cell Phone Ban
California Hands-Free Driving Laws

San Diego DUI criminal defense lawyers at www.SanDiegoDUIlawyer.com and www.SanDiegoDrunkDrivingAttorney.net report Traffic Sgt R King explains that the San Bernardino Police Department conducted a California DUI sobriety checkpoint near the intersection of East Highland Avenue and North Guthrie Street in San Bernardino during the evening hours on Friday, October 24, 2008.

This California DUI operation is part of the Police Department’s ongoing effort to addressn California DUI - drunk driving and reduce alcohol-related injuries and fatalities. The State of California’s Office of Traffic Safety provided funding for this checkpoint.

A total of 782 vehicles were screened. The 8-hour program netted 4 arrests (3 were for California DUI and one for grand theft auto), 22 vehicles were impounded, and 30 citations issued.

California Drunk Driving Laws, Penalties & Fines

California DUI drunk driving Calculator

California Teen Driving Laws & Insurance Requirements
California Text Messaging Ban
California Teen Cell Phone Ban
California Hands-Free Driving Laws
www.SanDiegoDUI.com

San Diego California DUI criminal defense lawyers at www.SanDiegoDUI.com hear three Redding California residents were arrested Thursday on suspicion of being out of compliance with their probation terms in a check of habitual DUI offenders.

The 4 Redding residents - 29, 33, 47 and 62 years old, respectively, were arrested Thursday on suspicion of being out of compliance with their probation terms in a check of habitual DUI offenders. In addition, one was arrested and released with a notice to appear on two outstanding warrants.

Redding police and the Shasta County Probation Department routinely check habitual DUI offenders to make sure they are complying with terms and conditions of their probation, Smyrnos said. Funding for the program is provided by a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration.

San Diego DUI Lawyers:

San Diego DUI Lawyer

San Diego DUI

California DUI Attorney

San Diego DUI Help

San Diego California DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net and www.SanDiegoDUIlawyer.com report that Sobriety Checkpoints Are Not the Answer.

The Milwaukee Journal Sentinel has a continuing series called "Wasted in Wisconsin" which is looking at the culture of drinking in the state, as well as the problem of drunk driving. Today's article is focusing on "sobriety checkpoints" as a possible solution. The article points out that Wisconsin is one of only 12 states that legally forbids the use of sobriety checkpoints. Governor Doyle, as well as various groups like MADD would like to see this changed:

Gov. Jim Doyle called Thursday for tougher laws to fight drunken driving - including legalizing roadside sobriety checkpoints in Wisconsin.

"Most of us are in much more danger from a drunk driver than we are from a person that is going to break into our house," he said. "I don't think we should have a ban (on checkpoints)... I think it can be a useful tool, used appropriately and in a limited way."

The Democratic governor said courts have set criteria for the constitutionality of checkpoints. Any new Wisconsin law would have to follow those guidelines, ensuring stops are not made in a discriminatory fashion, he said.
...
Milwaukee County sheriff's deputies have been hampered by the checkpoint ban, said Sheriff David A. Clarke Jr. Politicians should "stop dancing around the issue" and rescind the ban, he said.
This idea will do absolutely nothing to curb drunk driving in this state, and will hamper the rights of citizens to be free from unreasonable searches as guaranteed by the Constitution. I'll cover both of these issues in more detail.

First, to their effectiveness. While groups like MADD tout the effectiveness of DUI checkpoints, the fact is that drunk driving related deaths went down significantly year over year from about 1982 to 1993. Much of that credit should go to groups like MADD which created large national education campaigns on the dangers of drunk driving. In 1982, 3/5ths of all traffic deaths were alcohol related. The first year in which they didn't go down was 1993, which is not long after the United States Supreme Court ruled that sobriety check points were legal. They have leveled off since then (with minor up and down ticks every year). It should be noted that these statistics are sometimes disputed because "alcohol related" does not mean "alcohol caused". If anyone, even a passenger, had alcohol in their system, then it is used in that statistic depending on the state.

In fact, when comparing states that do have checkpoints with their counterparts that don't, and relating them to traffic deaths, there is little statistical difference in their effectiveness. It should also be noted that Michigan, which originated the US Supreme Court case in question, is one of the 12 states that outlaw sobriety checkpoints, because after being remanded to the State Court, they ruled that they did not pass Constitutional muster in that state. There is even some evidence that suggests that sobriety checkpoints have far lower effectiveness than roving patrols. The manager for traffic safety of the Pennsylvania Department of Transportation testified in their State Supreme Court to their ineffectiveness:

Mr. Rader testified that, based upon statistics available for several Pennsylvania counties during the years 1999-2001, approximately 0.71 percent of all drivers stopped at sobriety checkpoints were charged with DUI; he noted additionally that this is relatively close to the national average of 1.0 percent. Furthermore, Mr. Rader confirmed that, during the 1999-2001 period, the total number of law enforcement manpower-hours expended per DUI arrest at sobriety checkpoints was 22.84, and the total number of manpower-hours per arrest -- including both law enforcement and administrative personnel -- was 28.77. By comparison, 18.82 manpower-hours were required for each DUI arrest stemming from a roving patrol, and 7.69 percent of all drivers stopped by such patrols were charged with DUI.
In Pennsylvania, roving patrols are ten times more effective at stopping drunk drivers! In Arizona, they had no effectiveness when reinstated after 10 years of not being used. Supporters still touted them as being "educational" for people since everyone stopped was handed a pamphlet on drunk driving. One Sherriff had the audacity to say that it was "good they were arresting so few people." It's the perfect catch 22. When a state doesn't have sobriety check points, we need them to catch drunk drivers. When drunk drivers aren't caught at sobriety checkpoints, then that is a show of their effectiveness. Under what conditions then would they not be found useful? It's totally bogus.

In fact, there is evidence that traffic deaths may increase due to these checkpoints because the worst of the drunk drivers (those who are seriously impaired with high BAC levels) avoid the checkpoints when spotted (and often because their locations are advertised in the paper), while those who have had a drink or two continue to go through, because they don't feel impaired. Many of these drivers have a BAC below the .08 legal limit, but that doesn't stop some people from being arrested. If there is any "impairment" as judged purely at the discretion of the officer, and your BAC is above .01 then you could be arrested. Even the founder of MADD sees this as neo-prohibition and thinks it's going too far:

Lightner has moved on from MADD, and since then has protested the shift from attacking drunk driving to attacking drinking in general. "I worry that the movement I helped create has lost direction," she told The Cleveland Plain Dealer in 1992. BAC legislation, she said, "ignores the real core of the problem....If we really want to save lives, let's go after the most dangerous drivers on the road." Lightner said MADD has become an organization far more "neoprohibitionist" than she had envisioned. "I didn't start MADD to deal with alcohol," she said. "I started MADD to deal with the issue of drunk driving."
But if they aren't effective, then why do so many police organizations, like the Milwaukee County Sherriff want them? Well, the reality is that the "court protections" are either largely ignored, of other court decisions have increasingly allowed police to search for other things while they are checking your sobriety... and sometimes without even that pretense. In California, just one checkpoint netted $300,000 in tickets and fees, not for drunk driving, but for invalid licenses. They end up turning into police dragnets for all sorts of non-alcohol related stops and are seen as cash cows for police:

For years, DUI checkpoints have proven an effective way to catch drunken drivers and prevent others from getting behind the wheel, but what some police agencies are now using those checkpoints for and who is being targeted is sparking a growing controversy. The concern is that police are not only using the checkpoints as a way to enforce other laws but also as a way to make money — especially since cities such as Sacramento make $70 every time they impound a car at a DUI checkpoint, even if that car’s driver was not suspected of drinking and driving.
...
At issue is whether police agencies are misusing taxpayer money by using state DUI grant money as an opportunity to crack down on a host of other laws…. "It’s misrepresentation. It’s almost a fraudulent use of resources," state Sen. Gilbert Cedillo, D-Los Angeles, said.
...
Records show that at the Sacramento Police Department’s last five DUI checkpoints, officers arrested 22 suspected drunken drivers. But they also wrote 315 citations and impounded 259 vehicles belonging to people arrested for driving without a license or driving on a suspended license. Sacramento’s police chief defends the use of DUI checkpoints beyond the bounds of just cracking down on suspected drunken drivers.
So despite the supposed court protections granted, state laws often times still don't reflect them and courts rarely protect your rights after the fact. The reality is that the Wisconsin State law specifically prohibiting their use is one of the few things protecting your rights, and we need to keep it in place.

I am not a fan of drunk driving by any means. In fact, I think that increased penalties for those who are found guilty of drunk driving multiple times are long overdue. I would even think that a law which increases penalties for those who are found guilt fo drunk driving and have a BAC over .15 might be useful. Over half of all alcohol related fatalities occur when the driver has a BAC over .15. However, we need to take effective measures to combat drunk driving, while at the same time not harassing safe drivers or taking away their Constitutionally guaranteed rights. Sobriety checkpoints are neither effective, nor are they Constitutionally sound.

www.SanDiegoDUIhelp.com

San Diego DUI criminal defense attorneys at www.SanDiegoDUI.com and www.SanDiegoDrunkDrivingAttorney.net report the founder of a University City laser eye-surgery clinic pleaded not guilty Thursday to a misdemeanor count of - driving under the influence of alcohol or drugs causing injury.

Manoj Motwani already faces felony charges in a separate case for allegedly having prescriptions unlawfully written for himself and allegedly assaulting his live-in girlfriend.

The latest case stems from a San Diego DUI arrest on July 26, when he allegedly caused an injury accident by driving too fast and following other vehicles too closely.

A San Diego DUIreadiness conference was scheduled for Dec. 8 at the San Diego County Courthouse.
www.SanDiegoDUIlawyer.com

San Diego California DUI / DWI criminal defense attorneys at www.SanDiegoDUIhelp.com report Rafer Alston Rockets guard Rafer Alston was found not guilty Friday on a drunken-driving charge.

A Harris County jury cleared the 32-year-old point guard of the misdemeanor.

He went to court Wednesday when his driving while intoxicated trial begins.

He appeared before Harris County Court at Law Judge Jean Spradling Hughes as a jury is picked to hear allegations that Alston was driving drunk about 3 a.m. August 7.

Alston was arrested after a Houston police officer allegedly noticed his car making an erratic lane change. He also was driving without his headlights on. Neither means he was necessarily under the influence or drunk.

Alston's DWI criminal defense lawyer, Rusty Hardin, said Alston was not DUI, DWI or intoxicated, and he looked forward to a jury hearing the drunk driving case.

San Diego DUI - related charges' fines may be paid on line at http://www.sdcourt.ca.gov/portal/page?_pageid=55,1272349&_dad=portal&_schema=PORTAL#

you have appeared in court and the judge/commissioner has ordered you to pay a fine you may choose to pay the fine using one of the following options:

San Diego DUI Online: (click Pay San Diego DUI Fine to begin now).
Automated Telephone System To Pay San Diego DUI Fine: (619-906-5888)
Mail: Send a check or money order payable to "San Diego Superior Court" along with your Notice of Payment Due to the San Diego DUI court address on the notice.
Fax: Fax completed Notice of Payment Due to the appropriate San Diego DUI office location.
Express Drop Box: Most locations provide an Express Drop Box where you may submit your San Diego DUI payment with the notice.
In Person: Appear at the appropriate San Diego DUI office location during normal business hours.
Phone: Call the appropriate San Diego DUI office location during normal business hours.
You may use a credit card for all of the methods of San Diego DUI payment above.

www.SanDiegoDUIlawyer.com/blog

San Diego California criminal defense lawyers are told the student government president at San Diego State University was arrested by campus police Friday on suspicion of a San Diego DUI - driving under the influence and marijuana possession.

Mr. Poet was arrested about 3:20 a.m. on 55th Street near Remington Road, San Diego DUI lawyers are told.

As with any other student accused of breaking the law, James should be afforded due process and a chance to defend himself in court, San Diego DUI criminal defense attorneys emphasize.

The San Diego DUI arrest comes shortly after a five-week university ban on alcohol at fraternity and sorority parties. SDSU also made national news in May, when federal authorities announced the culmination of a yearlong drug sting at the university.

Poet's case will likely be turned over to SDSU's Center for Student Rights and Responsibilities for judicial review and potential disciplinary action if there are violations of the student code of conduct, according to San Diego DUI criminal defense lawyers at www.SanDiegodui.com

San Diego California DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net and www.SanDiegoDUIlawyer.com report a probationary officer with the Stockton Police Department was arrested over the weekend on charges of felony DUI and vehicular manslaughter.

Ryan Honnette has since been placed on administrative leave. The CHP said just before 5 p.m. on Saturday, Honnette was driving with four other people when he failed to negotiate curves along Lake Road in La Grange, overcorrected several times, and rolled his vehicle.

The middle-rear passenger, who was not wearing a seat belt, was partially ejected, later pronounced dead at a local hospital. Honnette was arrested on charges of felony DUI and vehicular manslaughter and was booked into the Stanislaus County Jail.

Police said Honnette had served about 15-18 months. Their probationary period is 18 months. The department said it is waiting for the CHP's investigation, according to San Diego California DUI criminal defense lawyers.

San Diego DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net found out Real Driving Exam Answers From California. The following are a sampling of real answers received on exams given by the California Department of Transportation’s driving school.


Q: How can you reduce the possibility of having an accident?
A: Be too drunk to find your keys.

Q: What problems would you face if you were arrested for drunk driving?
A: I’d probably lose my buzz a lot faster.

Q: What changes would occur in your lifestyle if you could no longer drive lawfully?
A: I would be forced to drive unlawfully.

Q: What are some points to remember when passing or being passed?
A: Make eye contact and wave “hello” if she is cute.

Q: What is the difference between a flashing red traffic light and a flashing yellow traffic light?
A: The color.

Q: How do you deal with heavy traffic?
A: Heavy psychedelics.

Q: What can you do to help ease a heavy traffic problem?
A: Carry loaded weapons.

Q: Do you yield when a blind pedestrian is crossing the road?
A: What for? He can’t see my license plate.

Q: Who has the right of way when four cars approach a four-way stop at the same time?
A: The pick up truck with the gun rack and the bumper sticker saying, “Guns don’t kill people. I do.”

Q: When driving through fog, what should you use?
A: Your car.

Q: Why would it be difficult to be a police officer?
A: It would be tough to be an idiot all day long.

San Diego DUI criminal defense attorneys at www.SanDiegoDUI.com relate that it is widely accepted that driving under the influence of drugs is a dangerous activity that can harm the driver, passengers, or innocent bystanders—hence, the stringent laws and penalties for a DUI in most states. Many people are unaware of their San Diego DUI rights, and that is why hiring an experienced San Diego DUI lawyer to help handle the case is crucial.

A good San Diego DUI lawyer can identify strategies for getting you acquitted or getting your sentence reduced. For instance, an experienced San Diego DUI lawyer may call field sobriety tests or chemical tests into question, as both can be unreliable indicators of a person’s state of sobriety. Or, if you are being charged with a first offense San Diego DUI, even if you are found guilty, a good San Diego DUI lawyer can help the judge and jury see that it was completely out of character for you, and that you are willing to pay society for your punishment via community service or public work. This will most likely help reduce the punishment set by the judge.

When you are pulled over for a San Diego DUI, the San Diego drunk driving police officers are usually looking for such signs as erratic driving, crossing the center line, weaving, and unusually wide turning radiuses. After stopping the car, they look for additional evidence of intoxication, such as a flushed face, bloodshot eyes, slurred speech, instability, disorientation, or an inappropriate attitude (such as being unusually happy, or being argumentative). You may be asked to participate in coordination tests (for example, the “horizontal gaze nystagmus test” where an officer asks you to follow a penlight with your eyes.

Ostensibly, intoxication can be determined by the point at which the eye begins to jerk, but this test can be called into question by an experienced San Diego DUI lawyer. It is recommended that, for a first offense, you should not agree to any such hand/eye coordination tests. Do, however, agree to chemical tests (blood, breath, and urine) if it is your first San Diego DUI offense. Also, under California law you may choose which type of chemical test to undergo. Blood tests are the most accurate, followed by breath tests, followed by urine tests.

A San Diego DUI lawyer is aware of the legal BAC levels, and can help guide a client based on prior history concerning San Diego DUIs and their BAC level. If a client is under the legal drinking age, it is important to handle the case with care because there is a “zero tolerance” rule in California stating that with a BAC of even .01 percent, and under-aged drinker can be charged with a DUI. With drinking and driving is not by any means condoned, it is important to get the best San Diego DUI & DMV legal advice possible if you are looking to get a minimal penalty. www.SanDiegoDUIlawyer.com/survey

San Diego DUI Defense Lawyers at www.SanDiegoDrunkDrivingAttorney.net/articles are told San Jose police arrest people for public drunkenness more than a dozen times a day, on average — a dizzying clip no other California city can match.

The 4,661 arrests are by far the highest in the state — San Diego, a city with a population 46 percent larger than San Jose.

The SJ department is booking Hispanics in about seven out of those dozen arrests — a percentage wildly out of proportion to the population that surpasses virtually every other police force in the state.

The numbers, obtained from state justice department officials and confirmed by the police, raise concerns about the enforcement of the law, which requires no sobriety test and leaves officers with wide discretion about when to make an arrest.

The department and Mayor Chuck Reed defend the law as an appropriate and effective way to maintain order and prevent dangerously rowdy conduct, especially around the city's crowded cluster of downtown nightclubs.

But critics say the law, which has long been a source of local controversy, is used arbitrarily — with some people punished for exhibiting bad attitudes. Lawyers and prosecutors are concerned that the high number of public drunkenness arrests serves only to clog the courts and waste precious resources. And last month, the San Jose Police Department was served with a federal civil rights suit claiming it is using the law against people who have committed no crimes.

Paul Cicala, a Palm Springs television anchorman who is Hispanic, was visiting San Jose in July 2007 to check out the excitement of the Grand Prix. Cicala — who had never been arrested before — said he had three drinks, but was neither drunk nor creating a disturbance that night. He said when he witnessed a rough arrest his journalistic instinct kicked in. He pulled out his cell phone to get a video.

Cicala said when an angry cop warned him not to take pictures, he tried to walk away. But he said he heard someone yell, "Get him." An officer grabbed him, threw him against a police car and zip-tied his hands behind his back. The officer peered down into his face, pressed against the hood, and yelled: "This is what you get for trying to act like a ----ing lawyer."

Police and the city attorney's office contended they could not discuss Cicala's case because he is one of the three plaintiffs in the federal lawsuit. The plaintiffs contend the state public intoxication law that snared them is so arbitrary that it's almost impossible to defend against. It requires no Breathalyzer, no blood test, no conduct other than that which officers deem dangerous to the suspect or others. Like Cicala, most of those arrested are taken into custody and jailed overnight before being formally charged and brought to court.

San Jose attorney Anthony Boskovich, who filed the lawsuit, noted that the law requires a person to be a danger to themselves or others — a standard he said the police often ignore. "There are people who get arrested for drunk in public who deserve it,'' Boskovich said. "But the vast majority arrested, especially downtown, get arrested for an attitude adjustment. The cop just makes a decision — 'I don't like you, I don't like your attitude. So I'm gonna haul your butt into custody.' ''

The 4,661 arrests are by far the highest in the state — San Diego, a city with a population 46 percent larger than San Jose, was the next highest with 3,265 public intoxication arrests last year. Los Angeles, the state's largest city, stopped treating public drunkenness as a crime for the most part years ago, after a lawsuit. In the Bay Area last year, Oakland arrested 1,423 people for public drunkenness; San Francisco, 1,214.

That disparity represents a strikingly different approach to policing. Franklin Zimring, law professor at the University of California-Berkeley, notes police have wide discretion in whether to narrowly use the law, such as when they spot people passed out in the roadway; or to freely use it when they see people whose conduct — harassing passers-by by shouting and cursing, for example — is inviting trouble. Though in recent years the trend is to use the law less strictly, Zimring said, neither approach is inherently right or wrong.

San Jose officials are comfortable with their choice.

"It's a different philosophy of not tolerating criminal behavior and making sure we don't have a revolving door for repeat offenders," Mayor Chuck Reed said. "Rudy Giuliani proved it was smart not to tolerate low-level criminal activity,'' Reed said of the former New York mayor. "I don't think tolerating public drunkenness is wise."

The San Jose arrests especially impact Hispanics. Last year, 2,643 of those arrested in San Jose were listed as Hispanic in the reports to the state — a number so large that it exceeded the total number of public drunkenness arrests by every other California department except San Diego. Victor Garza, who heads the La Raza Roundtable, a local branch of the nation's largest Latino civil rights group, said when shown the statistics that they were "devastating."

"It's too large of a percentage for a people who make up about 30 percent of the population," said Garza, who said he would seek to meet with Police Chief Rob Davis over the issue.

What most concerns Garza and others is that state statistics show an enormous ethnic disparity for public drunkenness charges in San Jose — 57 percent of those charged are Hispanic, while the city's population is roughly 32 percent Hispanic.

That ratio is far higher than elsewhere in California. Statewide, Hispanics make up about 36 percent of the population, and were 37 percent of those charged under the law. In San Diego, Hispanics make up 27 percent of the population, as well as about 25 percent of those charged. And in Sacramento, where Hispanics make up about a quarter of the population, they account for about 24 percent of the public drunkenness arrests.

Police say they arrest those who are committing crimes, regardless of race. They point out that a majority of the drunk-in-public arrests — 36 percent — occurred downtown, where hot night spots cater to an ethnically diverse crowd.

Mayor Reed said the high rate of Hispanics arrested dismayed but did not surprise him. "I think it's clearly a socioeconomic problem,'' the mayor said, adding that it generally reflected other statistics like gang involvement, homicides and the victims of crime in San Jose.

"If you are maintaining, drinking intelligently, you are fine. But if you are intoxicated and can't care for yourself that's when we need to step in,'' said Assistant Police Chief Daniel Katz. He said the strict enforcement had as much to do with public safety as it did with crime.

"How many of these people would have been victims or suspects in more serious crimes had they not been arrested? That's our philosophy."

Jakada Imani, executive director of the Ella Baker Center, a Bay Area police oversight group, said the message to young men of color is clear: "Don't come downtown. Downtown San Jose is not for you."

Business owners say that message is by design. Many, like John Conway, a lawyer who co-owns the Britannia Arms, believe the city is driving out the nightclubs to encourage people to snap up vacant city condos.

Conway said the police activity chases away more than just criminals: "The good customers see all the officers downtown on a weekend night and think there's been a murder."

In San Jose, the police refer for prosecution virtually everyone arrested for public drunkenness — a striking contrast to other cities that treat public drunkenness in a non-criminal manner unless the person exhibits some other dangerous or criminal behavior.

San Francisco and Oakland are among the many California cities that bring most public drunks to sobriety centers — commonly called "drunk tanks" — or jail, after which they are released without facing criminal charges. San Jose's sobriety center closed in 2004 after it was determined that it was costly and ineffective.

San Mateo County prosecutors and police agencies have an agreement: The police do not seek charges against first-time public intoxication offenders if there are no aggravating factors. Said San Mateo County Assistant District Attorney Karen Guidotti: "I don't think taxpayers want to see their money being spent that way or the police or our prosecutors spending time on those cases."

Even some Santa Clara County police agencies follow the "dry out, but don't prosecute" model. At the Palo Alto Police Department and 12 other agencies, cops usually wait until someone has six drunk-in-public arrests before they will forward the cases to the prosecutor.

Palo Alto Assistant Police Chief Dennis Burns said police there see the choice as "Should we be punishing this guy or treating his health issue?''

That policy was encouraged by prosecutors who saw the cases diverting court resources from more serious crimes. Deputy District Attorney Jay Boyarsky, who worked with North County law enforcement agencies on a policy to limit prosecutions to habitual offenders, called the charge the "Lincoln penny of the criminal justice system." The charge, Boyarsky said, "has its uses, but sometimes it can be more trouble to everyone involved than it's worth."

The cases that get to court generally come down to an accused drunk's version of events against the written report of the officer. The defendants usually face the charges in front of a judge without a lawyer. Santa Clara County judges will often offer a defendant immediate freedom, sentenced only to the time already spent in prison, in return for a guilty plea. Or they may offer a deal that if the person attends a series of alcohol counseling sessions — usually 10 sessions of Alcoholics Anonymous — the charge will be dismissed. Most people take the deal.

San Diego DUI criminal defense attorneys at www.SanDiegoDUIlawyer.com and www.SanDiegoDUI.com report according to a Riverside County, California court official, SunLine Transit Agency general manager Charles Mikel Oglesby may not have had a blood-alcohol content of 0.15 (almost twice the legal limit of 0.08) at the time of his arrest for suspected driving under the influence on July 3.

It was reported by The Desert Sun on September 16, that his blood-alcohol content was 0.15, based upon information from the Web site of the Riverside County Superior Court.

However, the information listed on the Web site was false, because of a clerical error and has since been corrected.

No blood-alcohol content has been released by the Riverside County District Attorney's Office at this point.

Charges of DUI and an enhancement for refusal to submit to a chemical test have been filed against Oglesby, according to officials within the DA's office, per San Diego California DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net.

San Diego DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net report Rep. Vito Fossella (R-Staten Island/Brooklyn) was guilty of DUI - driving under the influence. His running a red light and arrest for drunken driving in the early hours of May 1 led to the revelation that he had fathered a love child with a woman here. Fossella (R-Staten Island/Brooklyn) subsequently announced that he would not seek re-election.

Alexandria District Court Chief Judge Becky J. Moore ruled that a Breathalyzer test submitted by the prosecution is valid. Fossella's attorneys argued that the Intoxilyzer 5000 is unreliable and that the instrument used on Fossella in May had flaws that discount its findings.

"The court finds the Commonwealth [of Alexandria] has met its burden of proof and finds the defendant guilty," Judge Moore said shortly after 7 p.m., following nearly eight hours of testimony and the cross-examination of 11 witnesses, including Fossella.

The judge also found Fossella guilty of running a red light and ordered him to pay a $100 fine.

The judge did not rule, however, on what Fossella's blood-alcohol level was, pushing that decision off until a sentencing hearing Dec. 8 at 10 a.m. If it's determined that Fossella had a blood-alcohol level of 0.15 or greater -- the reading submitted by the prosecution was 0.17 -- Fossella would, under Alexandria law, automatically be sentenced to five days in jail.

Virginia's legal limit for driving is 0.08.

Congressman Vito Fossella found guilty on charges of DUI

"We're disappointed in the judge's ruling but Congressman Fossella has throughout been very candid that he made a mistake that evening and acknowledged he had something to drink," Barry Pollack, Fossella's lead attorney, told about 25 members of the media outside the Franklin P. Backs Courthouse on King Street in Alexandria tonight. "But the judge hasn't decided at this point if he was at the level of intoxication the Commonwealth alleges."

Fossella did not make any comments after his conviction, nor did his father, Vito Fossella Sr.; uncle, Frank Fossella, or other family members in attendance speak to the media.

Neither his wife, Mary Pat, nor Laura Fay, the former Air Force officer who bore Fossella's child, was in the courtroom.

Prosecutor David Lord -- who argued throughout the day that Fossella showed consistent signs of someone who had been drinking and driving under the influence -- did not comment after the ruling, saying the case is still ongoing.

After the sentencing hearing, Fossella can appeal, in which case a jury trial would be held in Alexandria Circuit Court, likely next year. Out-of-state experts would then be able to testify.

CLOSE QUESTIONING
Defense attorney Jerry M. Phillips spent nearly two hours grilling Alexandria Police Officer Jamie Gernatt, who arrested Fossella, and Officer Richard Sandoval, who administered the Intoxilyzer test. Details of how Fossella ran a red light, drove for two blocks before stopping and was given four field sobriety tests -- including balance and coordination tests, reciting the alphabet from D through T and counting to 37 -- were revealed.

On the night of his arrest, Fossella blew a .13 on a preliminary breath test at the scene before he was taken to the Alexandria police station. He was later driven seven miles to the Mount Vernon police station to be given an Intoxilyzer test, since the instrument in Alexandria was not working properly.

Because one test administered to him was invalid, a second test had to be taken later that morning. Both tests had Officer Sandoval's name spelled differently, making Phillips argue to suppress the tests from being admitted as evidence. The judge allowed it to be entered anyway.

Phillips also questioned why Fossella wasn't taken to Alexandria Hospital to have a blood sample taken rather than taking him to another jurisdiction for another breath test. He also maintained that Fossella was cooperative with the officer and complied with everything asked of him -- proving that he wasn't under the influence, he said.

But Lord countered that the arresting officer wrote in his arrest report that Fossella defied the rules of the road by running a red light, didn't stop immediately, staggered, had red-stained lips, slurred speech and bloodshot eyes, and a strong smell of alcohol on his breath -- all consistent with driving impaired.

CHARACTER WITNESSES
Two of Fossella's friends, who had attended a party with the congressman at the White House honoring the Super Bowl champion New York Giants on April 30 and later had dinner with him, testified on his behalf that he did not have too much to drink with dinner and did not seem remotely affected by alcohol.

Island brothers, Drs. John and Michael D'Anna -- chief medical officer of St. Peter's Healthcare System in New Brunswick, N.J., and chief of orthodontics at Staten Island University Hospital, respectively -- also testified that they never saw Fossella consume so much alcohol that he would have been affected by it.

The manager of Bobby Van's Steakhouse, where the dinner was held, and one of the owners of Logan's Tavern -- where Fossella went after dinner -- also backed up the statements that Fossella did not seem as though he'd had too much to drink. But Josh Hahn, the owner of Logan's Tavern, told the Daily News in May that he didn't believe Fossella was in a position where he could drive.

The prosecutor did not bring up that point.

'A LITTLE NERVOUS'
Fossella -- who was not wearing a wedding band -- testified on his own behalf, saying he'd had between two and three glasses of wine the evening before he was arrested. Disputing the arresting officer's account that he did not perform all the sobriety tests the way he was asked to, Fossella repeatedly said he "performed the test consistently with what Officer Gernatt asked me to do."

Admitting at the start of his testimony that he was "a little nervous," Fossella said he repeatedly asked the officer about his rights and asked if he could call his attorney. He said he was told no and that he was told he had to comply with the breath test.

Addressing the fact that he has a 3-year-old daughter with Ms. Fay -- who retired from the Air Force as a lieutenant colonel -- for the first time since May, Fossella said he was in a rush to get to Virginia, because "I was told that my daughter was sick."

He also said he was not allowed to use the rest room, even after telling Officer Sandoval that he was not feeling well. Sandoval had said earlier that Fossella already had gone to the bathroom and that he wouldn't allow him again until the breath test was complete.

EQUIPMENT ANALYSIS
Returning to the accuracy of the breath test, Phillips argued that the misspellings of Officer Sandoval's name were proof that the machine was unreliable.

Dr. Irma Adams, a toxicologist, called the misspellings "very odd, not something I've seen" and said that Officer Sandoval should have reset the machine after it showed wrong information.

And Dr. Thomas Workman Jr. -- an electrical engineer with a doctorate in high-tech law, who has specialized in analyzing Intoxilyzers -- said he couldn't explain the malfunction "unless there's something wrong with the software."

"There's some defect here," Workman said. "Once you begin to see something wrong, you can't trust that anything's right. The software failed on this machine. There is really no other explanation. These results cannot be trusted."

Dr. Workman also said that alcohol-based hand sanitizer, used by Fossella, and radio and cell phone frequencies could have contributed to the congressman's high blood-alcohol content reading. He said with those factors combined, he estimated Fossella should have had a blood-alcohol level reading of .06.

But two witnesses from the Virginia Division of Forensic Science -- including the woman who certified that the Intoxilyzer used on Fossella was in working order months before and days after -- said there are enough safeguards in place on the machine to ensure that it doesn't produce a breath reading if any part of the equipment was malfunctioning.

Dr. Alaa Lahmann, who oversees the inspection and certification of Virginia's Intoxilyzer machines, added that hand sanitizer and radio frequencies have minimal impact on one's alcohol readings. www.SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI criminal defense lawyers at www.SanDiegoDUIhelp.com and www.SanDiegoDrunkDrivingAttorney.net that on Saturday October 18, 2008, the Murrieta Police Department will conduct a combination sobriety/driver’s license checkpoint in the City of Murrieta from 6:00 pm to 2:00 am. This checkpoint is completely funded by the State of California through the Office of Traffic Safety.

The goal of the Murrieta Police Department is to reduce traffic related fatalities, injuries, and collisions through enforcement and education programs as well as reduce Driving Under the Influence (DUI) involved collisions.

Motorists approaching the DUI checkpoint will see informational signs advising them that a sobriety / driver’s license checkpoint is ahead. Once diverted into a single lane, motorists will be detained only for a few moments while an officer explains the purpose of the checkpoint. Traffic volume permitting, all vehicles will be checked.

Checkpoints placed on roads with identified DUI problems tend to help reduce the number of drinking drivers on the road, even though arrest totals do not rise dramatically. A major value of checkpoints is their psychological influences, based upon studies conducted by the California Highway Patrol.

NOTE: The location of the checkpoint will be disclosed through the Watch Commander’s office after 5:00 p.m. on the day of the checkpoint.

Murrieta Police Contact: Corporal Jay A. Froboese 951-461-6302

Date/Time Written: 10/17/2008 18:05
Type of Incident: DUI Checkpoint
Date/Time of Incident: 10/18/2008 18:00
Location of Incident:
Reporting Officer:Corporal Jay Froboese
Reporting Officer Phone: 951-461-6302
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California Drunk Driving Laws, Penalties & Fines
California Teen Driving Laws & Insurance Requirements
California Text Messaging Ban
California Teen Cell Phone Ban
California Hands-Free Driving Laws


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San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf where they talked about an extensive investigation. The Florida Department of Law Enforcement (FDLE) has reported that they have fired DUI inspector Sandra Veiga for allegedly tampering with alcohol breath testing machines. It has been revealed that during the FDLE's routine inspections, Veiga failed to follow testing protocol. When it appeared that the machine was going to register a fail during the required accuracy inspection, Veiga chose to pull the plug on the machine rather than let it finish the test and record the error. Unplugging the machine mid-test prevents the machine from reporting the malfunctions to the manufacturer. Veiga was responsible for the required annual testing all of the Intoxilyzer machines in the Miami-Dade, Broward, and Monroe counties.

The investigation into Veiga's conduct began after two local police officers reported that Veiga had told them to turn the machines off when it looked like they were going to fail inspection. Florida state law mandates that the Intoxilyzer machines be tested for accuracy once a month by the police agency in possession of the machine in addition to the yearly tests provided by FDLE.

In July, the FDLE sent letters to every law enforcement agency in all three counties, instructing the agencies to alert prosecutors and defense attorneys to the alleged tampering. As a result of this widespread corruption, thousands of DUI cases have put been put at risk, including pending cases and cases that have been recently closed. Driving under the influence defense lawyer Richard Hersch stated, "The number of cases involved could be as many as 10,000 here in Miami-Dade County." DUI defense attorneys argue that this scandal casts suspicion on an untold number of driving under the influence cases in Dade, Broward, and Monroe counties.

Defense attorney Mike Catalano added, "If she [Veiga] lied about how she performed her annual inspections, then we don't know if any of them are valid." Individuals who have been arrested for driving under the influence in South Florida, who have submitted to a breath test, or who have been convicted of a DUI in one of the three previously stated counties have been advised to contact their attorney and see if the widespread tampering has affected the finding in their case.

Despite these warnings, the Miami-Dade State Attorney's Office has maintained their confidence in the reliability of the Intoxilyzer breath testing machines used in the county's criminal DUI cases. Officials of the State Attorney's Office have stated for the record that the improper accuracy tests will not endanger any of the area's past, present, or future driving under the influence cases.

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San Diego California DUI Criminal Defense attorneys at www.SanDiegoDUIlawyer.com report that the city of La Mesa employee found slumped over the steering wheel of Mayor Art Madrid's SUV pleaded guilty Thursday to misdemeanor reckless driving and was given two years summary probation.

Trisha Kristine Turner, 35, was charged in connection the Feb. 20 incident in which she and the 73-year-old mayor were found inebriated in a residential neighborhood.

Turner pleaded guilty to reckless driving before reputable Judge Roderick Shelton, who also fined her $825.

La Mesa police officers reported finding Turner -- a city finance employee -- keeled over in the driver's seat and Madrid lying on a sidewalk. No field sobriety tests were administered. Police drove both to the mayor's home, about a block away.

A city report found no wrongdoing by Turner, the officers or Madrid, who has repeatedly apologized for his actions. He said he drank in excess because that day because it was the 19th anniversary of his son's death from cancer. San Diego DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net found this all interesting.

San Diego California DUI criminal defense attorneys at www.SanDiegoDUIlawyer.com are asked about DUI's with injuries (Vehicle Code Section 23153).

California Vehicle Code 23152 states that a misdemeanor violation of California DUI law is defined as an incident with no personal injury or property damage. This is an excellent example of how vague some DUI laws can be. Could you be charged with a felony California DUI if your car bends a tree in a public park? Or leaves a dent in a telephone pole? Under the strictest interpretation of the law, yes. Can a California DUI lawyer argue against this in court? Yes

One man, a Mr. Taskey, will get 15 years to regret his San Diego California DUI drunk driving conviction that caused a fatal car accident in San Diego in September last year. The 47-year-old has pleaded guilty to second degree murder in the accident that occurred on September. He will be sentenced on November 12th.

On that fateful day, members of a family were out to Sunset Cliffs in two separate cars. According to witnesses at the scene of the car accident, who testified at the trial, Taskey’s car rear-ended one of the cars. Inside was 74-year-old Rosa Degerman, sitting in the back seat. The car went out of control from the impact of the collision, and rolled over several times before coming to a rest. She sustained severe injuries in the accident, and was declared dead the next day in the hospital. A male passenger in the car suffered injuries, including a concussion, and a 7-year-old girl fractured her shoulder in the San Diego California DUI car accident.

San Diego California DUI Officers who arrived at the scene of the car accident administered a breathalyzer test to Taskey. His blood alcohol count was .112 at first count, and then again .118 at a later reading. He was also found to be very disoriented, and was driving on a suspended license. California Highway Patrol officers at the scene of the car accident testified at Taskey’s trial about his inebriated and disoriented condition. Besides, he was also reportedly driving at more than the designated speed limit in the area.

This was hardly Taskey’s first time drinking and driving with unfortunate results. He had been convicted of drunk driving on at least five separate occasions between 1997 and 2006. All these factors seem to have weighed in against Taskey at the San Diego California DUI trial.

Taskey had some of the charges that were earlier filed against him dropped because he pleaded guilty to second-degree murder. These charges included those relating to felony driving under the influence, and felony vehicular manslaughter while drunk. He had also been charged with driving with a blood alcohol level higher than 0.8, per San Diego California DUI criminal defense lawyers at www.sandiegodrunkdrivingattorney.net.

In other news, a suspected drunken driver suffered major injuries October 15, 2008 in a crash on Camino del Rey and Old River Road. At about 6:30 p.m., California Highway Patrol got word of a head-on collision involving a pickup truck and car, according to the CHP Web site. The suspect, whose name was not available, was flown to Palomar Medical Center in Escondido, but no information was available about which vehicle the suspect was driving or whether anyone else was injured. www.sandiegodui.com

San Diego DUI criminal defense attorneys are often asked about whether a person can get a DUI on a bike? Yes.

You can be arrested for a DUI while riding a bike.

Every person riding a bicycle on a highway has all the rights and is subject to many of the same laws that apply to drivers of a vehicle.

According to California Vehicle Code 21200.5: “it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug, or under the combined influence of an alcoholic beverage and any drug.”

Much like a DUI behind the wheel, biking with a .08 BAC or more is typically a misdemeanor for first-time offenders.

If convicted, the offense will remain on one's record for at least three years. Additional fines and/or mandatory community hours usually are imposed upon any conviction.

Probable cause may exist to stop the bike as the law requires cyclists to have a working headlamp on their bicycle when it is dark.

California Vehicle Code Section 21201(d)(1) states that every bicycle, while being operated on a highway during hours of darkness, “must have a lamp emitting a white light that, while the bicycle is in motion, illuminates the highway, sidewalk or bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle.”

Among additional requirements, Section 21201(d)(2) states a bicycle ridden at night must have “a red reflector on the rear that shall be visible from a distance of 500 feet to the rear when directly in front of lawful upper beams of headlamps on a motor vehicle.”

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San Diego DUI criminal defense attorneys at www.SanDiegoDrunkDrivingAttorney.net/articles are trying to let the DUI probationers in San Diego know about a new California DUI / Drunk Driving law.

Beginning in 2009, New Years Day to be exact, drivers on probation for a DUI conviction of Vehicle Code §§23152 or 23153 face zero tolerance if they drive in California with a blood or breath alcohol concentration of .01% or higher. On October 14, 2007, the Governor of California signed a number of bills, there is one main one to know.

New Vehicle Code §§23154 and 13389, and the amended 13353.1, have come to life per AB 1165 introduced by Assembly Member Maze (Coauthors: Assembly Members Sharon Runner and Spitzer) February 23, 2007.

These sections take effect on January 1, 2009 according to the Legislature's chaptered document.

New Vehicle Code §23154 states:

23154. (a) It is unlawful for a person who is on probation for a violation of Section 23152 or 23153 to operate a motor vehicle at any time with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test. (b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, on probation for a violation of Section 23152 or 23153, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test. (c) (1) A person who is on probation for a violation of Section 23152 or 23153 who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained for an alleged violation of subdivision (a). (2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person is driving a motor vehicle in violation of subdivision (a). (3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test or other chemical test as requested will result in the suspension or revocation of the person's privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1.

Note that at this time, there is no additional punishment defined in the statute so presumably only a probation violation will exist - other sanctions could also be introduced in the next session now that this has all passed though.

A refusal of the PAS by a person under 21 or in alleged violation of 23154 can also be punished administratively - under 21 by our current §13388 or in 2009 by the new Vehicle Code §13389 which states:


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

The section doesn't discuss prior §23103 per 23103.5 convictions, only §§23152 or 23153.

Vehicle Code §13353.1 is amended by AB 1165 to assist the DMV in taking your client's license for violations of the above new codes:


13353.1. (a) If a person refuses an officer's request to submit to, or fails to complete, a preliminary alcohol screening test pursuant to Section 13388 or 13389, upon the receipt of the officer's sworn statement, submitted pursuant to Section 13380, that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136 or 23154, and that the person had refused to submit to, or did not complete, the test after being requested by the officer, the department shall do one of the following: (1) Suspend the person's privilege to operate a motor vehicle for a period of one year. (2) Revoke the person's privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either of the following: (A) A separate violation of subdivision (a) of Section 23136, that resulted in a finding of a violation, or a separate violation, that resulted in a conviction, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code. (B) A suspension or revocation of the person's privilege to operate a motor vehicle if that action was taken pursuant to this section or Section 13353 or 13353.2 for an offense that occurred on a separate occasion. ...
Other amendments to the Vehicle Code authorize a police officer to tow a vehicle for violation of §§23154 or 13389 as well as "double the fine zone" in some cases.

It is best to respect the required probation term of zero tolerance before and after January 1, 2009 just to be safe; practice makes perfect.

Premier San Diego DUI / Drunk Driving criminal defense lawyers at www.SanDiegoDUIhelp.com are always there to help.

San Diego DUI criminal defense attorneys at www.SanDiegoDrunkDrivingAttorney.net jand San Diego Drunk Driving criminal defense lawyers at www.SanDiegoDUIlawyer.com pass this newsstory on: Alcohol Use in California Costs Every Resident $1000 Annually.

This blog about the costs of alcohol to residents of California is brought to you by Sober Living by the Sea Treatment Centers located in Newport Beach, California. We have been treating alcoholic men and women to help overcome their addiction and understand the underlying issues that lead to their chemical dependency for over twenty three years. We have gender specific drug treatment programs for men and treatment programs for women.

At a time when Budweiser is in the news for being purchased by Belgian brewer InBev, another interesting news item about alcohol caught my eye today. The below report will inevitably be used to attack “Big Alcohol” so that companies like InBev will be responsible for more of the devastating effects of their products.

The Annual Catastrophe of Alcohol in California

A New study funded by the Marin Institute, the alcohol industry watchdog
outlines the cost of alcohol use to the state of California to be $38.4 billion annually or $1,200 per second. That’s a cost to every resident of roughly $1,000 annually. The costs come in the form of crime, traffic DUI costs, illness, and injury.

The study also estimates an additional $48.8 billion in quality of life costs, due to the pain and suffering of victims and families

Marin Institute compared the economic losses to those from natural disasters and concluded that alcohol costs far outpace earthquakes and fires. Per the Marin Institute: “Unlike earthquakes, fires, floods and mudslides, which come along infrequently, the catastrophe of alcohol in California happens annually, with devastating effects, and can be prevented.”

The Marin Institute’s study will calling for a number of steps to reverse the catastrophe, including higher alcohol taxes to reduce excessive consumption and the related harm and costs.

By http://www.soberliving.com/blog/labels/DUI.html

Free Evaluation at http://www.SanDiegoDUI.com/survey.html for your best San Diego DUI defense attorney strategy and to vigorously protect your important driving privilege, as has been done for many good people who necessarily become Clients.








Contact a San Diego California DUI Criminal Defense Lawyer who can help or visit below sites:

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http://www.sandiegoduihelp.com/duiblog/index.html

San Diego DUI / DMV defense attorneys at www.SanDiegoDUI.com report that the University Neighborhood Enhancement Team (UNET) conducted a Hands Free Cell Phone Law Enforcement project commencing on Monday, October 6 and ending on Thursday, October 9. The times of enforcement were from 7 a.m. to 5 p.m. each day.

Officers issued 58 cell phone citations for violations of 23123(a) CVC during the week. The subjects cited were mostly students from UCR. This project will be repeated in the future.

UNET is a cooperative unit of the Riverside Police Department (RPD) and the University of California-Riverside Police Department (UCRPD).

Signs were posted in the enforcement areas advising drivers that cell phone laws are strictly enforced. The enforcement was conducted at the intersections of University Avenue and Canyon Crest Drive, Martin Luther King Boulevard and Canyon Crest Drive, University Avenue and the 60 Freeway, as well as surrounding areas when infractions were observed.

You may get into trouble. Or friends or neighbours will also get into trouble. At this time you will really feel panic or worried about the situation. Here is a solution: a site called www.SanDiegodDUIlawyer.com with instructions given as to how to face the San Diego county police when you get into trouble. These tips are given by San Diego DUI Criminal Defense Attorney & San Diego Drunk Driving California Criminal Lawyers who are well experienced (24 years) and will help you out at www.SanDiegoDUI.com

San Diego California DUI criminal defense lawyers at www.SanDiegoDUIlawyer.com report that a Sacramento woman was sentenced to 12 years and eight months in jail Friday for driving drunk and killing one person in a December wreck.

Bethann Colyer ran a red light and slammed into another vehicle at Whitney and Eastern avenues on Dec. 20, San Diego California DUI criminal defense lawyers at www.SanDiegoDUIlawyer.com said.

Scott Allen Crouch, 18, was killed.

Of the eight other people in Crouch's vehicle, five suffered major injuries and three had minor injuries. Colyer suffered minor injuries.

Colyer was leaving Dubs Daily Dose bar in Carmichael at the time of the wreck, the San Diego California DUI criminal defense lawyers at www.SanDiegoDUIlawyer.com said, and admitted to officials that she had been smoking marijuana earlier. Get Help Today:



* COMPLETE FREE SAN DIEGO DUI "EVALUATION FORM" href="http://www.sandiegodui.com">http://www.sandiegodui.com/survey.html



Quality San Diego DMV - DUI legal representation: 1-800-THE-LAW-DUI
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(619) 218 - 2997 portable/voice mail




Click on below sites for more information by a San Diego DUI Lawyer:

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San Diego California DUI criminal defense lawyers at www.SanDiegoDuilawyer.com report that two people are hospitalized following a four-car crash.

San Diego California DUI police say alcohol may have played a role. It happened at 31st Street and Oceanview Boulevard in Memorial Friday morning.

San Diego California DUI police said a suspected drunken driver ran the stop sign and was broadsided by an SUV. The out-of-control drivers then hit two parked cars.

San Diego Police Department reports: "There's some statements that one of the drivers might have been drinking prior to the collision and there's an investigation into whether that person was under the influence or not."

Residents said the intersection is a dangerous one because the stop sign is in what they call a blind spot.

"This is a corner where people hear crashes very often," say San Diego California DUI attorneys. "Eight to 10 cars have crashed here."

Luckily, both drivers were wearing seatbelts. They were taken to the hospital for minor injuries. Neighbors said they would continue to ask the city to put in a stoplight, per San Diego California DUI criminal defense attorneys at www.sandiegodui.com .

Click to contact San Diego DUI Defense Attorney Specialists:

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San Diego DUI Criminal Defense Lawyers at www.SanDiegoDUIlawyer.com report that San Diego's Social Host law means that you can be charged with a misdemeanor if you allow underage drinking in your home. In the city of San Diego, you can also be charged for the cost of any emergency response, including police, firefighters and paramedics.

Dozens of California counties and cities now have social host laws designed to combat underage drinking, DUI / DWI, and other problems. Some ordinances, including San Diego’s, require proof that you knew the party was occurring. Other cities and counties allow charges to be brought even if the homeowner had no knowledge of the party.

If you’ve been charged under San Diego’s social host law or are facing a San Diego DUI charge, you need a top Drunk Driving criminal defense lawyer on your side. A skilled San Diego DUI / DWI attorney or San Diego DUI Criminal Defense Lawyers at www.SanDiegoDUIlawyer.com are ready to review your case and fight for your rights. Please contact an experienced San Diego DUI / drunk driving lawyer today at San Diego DUI Criminal Defense Lawyers at www.SanDiegoDUIlawyer.com for a free consultation.

A DUI Lawyer in San Diego:

San Diego DUI Lawyer

San Diego DUI

California DUI Attorney

San Diego DUI Help

http://www.google.com

San Diego DUI criminal defense lawyers at www.SanDiegoDrunkDrivingAttorney.net and www.SanDiegoDUIlawyer.com remind people that despite intense police use of California DUI / Drunk Driving roadblocks and sobriety checkpoints, there is not enough evidence to conclude that the increased police efforts effectively cut down on the number of California DUI / Drunk Driving - driving under the influence related accidents and fatalities.

According to lead reviewer Cynthia Goss, of the Colorado Injury Control Research Center and the Colorado School of Public Health, "Increased police patrols might be effective, but we do not yet have enough evidence to prove that they are."

The review will appear in the current issue of The Cochrane Library, a publication of The Cochrane Collaboration, which is an international organization that evaluates research conducted on topics affecting health care. The review provided its' conclusion on the effectiveness of sobriety checkpoints after considering the content and quality of thirty-two existing studies on the topic. The studies were chosen based on strict selection criteria, which required, "Randomized controlled trials, controlled trials, controlled before and after studies, interrupted time series (ITS) studies, and controlled ITS studies evaluating increased police patrols...."

In a majority of the thirty-two studies, the specific intent of the police initiated checkpoints and roadblocks was to locate individuals suspected of driving under the influence, while also serving as a deterrent to individuals who may potentially choose to drink and drive. Some of the police interventions were also aimed at reducing other traffic violations, such as speeding or driving without a valid license.

Most of these studies revealed that increased police patrols reduced traffic crashes and fatalities, but evidence on the effect of traffic injuries was less consistent. The reviewers concluded that in most of the studies, the results may have been biased or unreliable due to their weak or unclear quality. "Methodological limitations included inadequate sample size, dissimilar baseline measures, contamination, and inadequate data analysis. Thus, existing evidence, although supportive, does not firmly establish whether increased police patrols, implemented with or without other intervention elements, reduce the adverse consequences of alcohol-impaired driving."

Goss explained The Cochrane Collaboration's rationale, stating, "Study quality cannot be separated from study results. A poor quality study can make the intervention look better- or worse- than it really is." Reviewers discovered that the detail provided on the methodology of included studies was uniformly poor, and the quality of the finalized reports was equally weak. Reviewers felt that studies assessing the cost-effectiveness of the sobriety checkpoints and roadblocks were necessary in order to truly determine effectiveness of heightened police intervention. No such studies were included in the review.

MADD national president, Laura Dean-Mooney contested The Cochrane Collaboration's findings, asserting that, "Federal research from the Centers for Disease Control and Prevention shows that sobriety checkpoints reduce alcohol related crashes and fatalities by up to twenty-four percent. Checkpoints are one of the most effective tools we have to deter drunk driving." MADD officials have stated in the past that just because a sobriety checkpoint doesn't yield any arrests doesn't mean that the heightened police efforts are not working. Instead, MADD insists that a lack of arrests for DUI related violations during a police checkpoint illustrates the effective deterrent power police checkpoints have over individuals who may have otherwise chosen to drink and drive, according to California DUI / Drunk Driving attorneys at www.SanDiegoDUI.com.


San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf . The California criminal defense lawyers who attended informed the President of the California DUI Lawyers Association that San Diego California DUI criminal defense attorney Rick Mueller was excellent. Rick has been asked to speak again - at the California DUI Lawyers Association (CDLA) DUI seminar.



Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HERNAN ISMAEL DELGADO, ü
Petitioner, No. 03-74442
v. ý Agency No. MICHAEL B. MUKASEY,* A78-461-226
Attorney General, OPINION
Respondent. þ
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued November 18, 2005
Submitted June 20, 2008
Pasadena, California
Filed October 8, 2008
Before: William C. Canby, Jr., Eugene E. Siler, Jr.,** and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Canby;
Dissent by Judge Berzon
*Michael Mukasey is substituted for his predecessor, Alberto Gonzales,
as Attorney General. Fed. R. App. P. 43(c)(2).
**The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
14271
COUNSEL
Niels W. Frenzen, University of Southern California Gould
School of Law, Los Angeles, California, pro bono counsel for
the petitioner.
Jennifer Levings, Norah Ascoli Schwarz, United States
Department of Justice, Civil Division, Washington, D.C., for
the respondent.
OPINION
CANBY, Circuit Judge:
Hernan Ismael Delgado petitions for review of a decision
of the Board of Immigration Appeals (“BIA”) ordering him
removed to his native El Salvador. The BIA denied Delgado’s
applications for asylum, withholding of removal, and withholding
under the Convention Against Torture (“CAT withholding”),
finding that Delgado’s three prior offenses of
driving under the influence (“DUI”), which were not aggravated
felonies, constituted “particularly serious crimes” that
made him ineligible for those forms of relief.1 The BIA also
found Delgado ineligible for deferral of removal under the
1All three convictions were for felony DUI. One involved an injury
accident, and two resulted in prison terms of less than five years.
DELGADO v. MUKASEY 14275
Convention Against Torture (“CAT deferral”) because he
failed to demonstrate the requisite likelihood of future torture.
We dismiss in part and deny in part Delgado’s petition for
review. We defer to the BIA’s view that, for purposes of withholding
of removal, the applicable statute permits the Attorney
General to decide by adjudication that an alien’s
individual crime is “particularly serious” even though that
crime is not classified as an aggravated felony. We also conclude
that, for purposes of asylum, the Attorney General may
determine by adjudication that a crime is “particularly serious”
without first so classifying it by regulation. We further
determine that we are without jurisdiction to review the merits
of such decisions. Finally, we hold that substantial evidence
supports the decision of the BIA that Delgado failed to meet
his burden of proving that he is more likely than not to be tortured
if returned to El Salvador.
Background
Delgado, a native and citizen of El Salvador, entered the
United States on a nonimmigrant visitor visa over twenty
years ago. In July 2001, the Immigration and Naturalization
Service (“INS”)2 initiated removal proceedings against him
because he had overstayed his visa. Delgado conceded removability
but sought asylum, withholding of removal, CAT withholding
and deferral, cancellation of removal under the
Nicaraguan Adjustment and Central American Relief Act
(“NACARA”), and suspension of deportation.
The Immigration Judge (“IJ”) denied Delgado’s request for
CAT deferral, finding that Delgado had failed to show that he
was more likely than not to be tortured if removed to El Sal-
2Effective March 1, 2003, the functions of the INS were transferred to
the Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). This transfer
has no effect on the review of Delgado’s case.
14276 DELGADO v. MUKASEY
vador. The IJ also found that each of Delgado’s three prior
felony DUI convictions constituted a “particularly serious
crime” that barred him from eligibility for asylum under 8
U.S.C. § 1158(b)(2)(A)(ii), withholding of removal under 8
U.S.C. § 1231(b)(3)(B)(ii), and CAT withholding under 8
C.F.R. § 1208.16(d)(2).3 The BIA affirmed the decision of the
IJ in an unpublished per curiam decision signed by one member,
and this appeal followed.
Discussion
The BIA did not specify whether it reviewed de novo the
IJ’s decision, but stated that it agreed with the IJ on the basis
of “the record before [it].” The BIA’s simple statement of a
conclusion, without analysis, suggests that it relied significantly
on the IJ’s decision. In such situations, we review the
decision of the BIA and look to the IJ’s oral decision “as a
guide to what lay behind the BIA’s conclusion.” See Avetova-
Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000).
I. The “particularly serious crime” bar
The ultimate issue raised by Delgado is whether the BIA
erred in deciding that his DUI convictions constituted “particularly
serious crimes” that made him ineligible for withholding
of removal and asylum. A major threshold question is
whether the applicable statutes permit the agency to determine
Delgado’s offenses to be “particularly serious” by individual
adjudication not limited by certain statutory or regulatory
requirements. We have jurisdiction under 8 U.S.C.
§ 1252(a)(2)(D) to review this question of law. Afridi v. Gonzales,
442 F.3d 1212, 1218 (9th Cir. 2006).
Although this issue of the BIA’s authority to determine by
3The IJ also denied Delgado’s applications for suspension of deportation
and relief under NACARA. Delgado does not seek review of those
denials.
DELGADO v. MUKASEY 14277
adjudication that an alien’s crime is “particularly serious”
arises with regard to both withholding of removal and asylum,
the statutory context differs for each form of relief and raises
distinctive legal subissues. We therefore treat the two forms
of relief separately.
A. Withholding of Removal
[1] An alien is ineligible for withholding of removal if,
among other things, “the Attorney General decides that . . .
the alien, having been convicted by a final judgment of a particularly
serious crime, is a danger to the community of the
United States.”4 8 U.S.C. § 1231(b)(3)(B). For the purposes of
this provision,
an alien who has been convicted of an aggravated
felony (or felonies) for which the alien has been sentenced
to an aggregate term of imprisonment of at
least 5 years shall be considered to have committed
a particularly serious crime. The previous sentence
shall not preclude the Attorney General from determining
that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particularly
serious crime.
Id. The question that naturally arises from this plain text is
whether the last sentence is meant to limit the Attorney General
(or his delegate, the BIA) to the universe of aggravated
felonies described in the preceding sentence or, conversely,
whether the last sentence simply preserves the Attorney General’s
authority to determine a crime to be particularly serious
4We have upheld the BIA’s interpretation of this statute to require “only
the factual finding of conviction of a particularly serious crime to support
the determination of danger to the community,” without the necessity of
a separate finding of such danger. Ramirez-Ramos v. INS, 814 F.2d 1394,
1397 (9th Cir. 1987). We therefore confine our analysis here to the question
of “particularly serious” crimes, and omit any separate consideration
of danger to the community.
14278 DELGADO v. MUKASEY
regardless of the penalty or its designation or non-designation
as an aggravated felony.
[2] At the time the present appeal was argued, the BIA had
not addressed this issue in a precedential opinion, in this case
or any other. An unpublished decision by a single BIA member
is not entitled to the deference prescribed by Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984). Garcia-Quintero v. Gonzales, 455
F.3d 1006, 1012-14 (9th Cir. 2006). Recently, however, a
three-member panel of the BIA has issued an extensive published
opinion holding that § 1231(b)(3)(B) permits the Attorney
General to decide by case-by-case adjudication that
particular crimes are “particularly serious” even though they
are not aggravated felonies. In re N-A-M-, 24 I & N Dec. 336,
338-39 (BIA 2007). Such a precedential opinion is entitled to
Chevron deference. See Garcia-Quintero, 455 F.3d at 1012.
For reasons that we now set forth, we conclude that the BIA’s
interpretation of § 1231(b)(3)(B) is reasonable, and we
accordingly defer to it.5
Two other circuits, which addressed the issue before the
BIA weighed in with a precedential opinion, reached opposite
results. The Third Circuit, applying a textual and structural
approach, concluded that an offense “must be an aggravated
felony to be ‘particularly serious.’ ” Alaka v. Attorney General
of the United States, 456 F.3d 88, 104-05 (3d Cir. 2006),
cert. dismissed, 128 S. Ct. 828 (2007). The court reasoned
that the sentence allowing the Attorney General to determine
that a crime is particularly serious “notwithstanding the length
of sentence imposed,” 8 U.S.C. § 1231(b)(3)(B), “explicitly
5In Morales v. Gonzales, we assumed without analysis that the Attorney
General could deem a non-aggravated felony “particularly serious.” 478
F.3d 972, 980-81, 983 (9th Cir. 2007). There, we remanded to the BIA for
a redetermination, based on the correct legal standard, of whether Morales’s
non-aggravated felony constituted a “particularly serious crime.” Id.
at 983. Because the statutory interpretation of § 1231(b)(3)(B) is squarely
contested here, we address the issue in depth for the first time.
DELGADO v. MUKASEY 14279
refers back to the ‘previous sentence,’ and accordingly
implies that [the Attorney General’s authority] is limited to
aggravated felonies.” Id. The Seventh Circuit disagreed, concluding
that “the absence of a . . . provision for
nonaggravated-felony crimes does not imply that only aggravated
felonies can qualify as ‘particularly serious’ crimes.”
Ali v. Achim, 468 F.3d 462, 470 (7th Cir. 2006), cert. dism.,
128 S. Ct. 828 (2007).
[3] The BIA found persuasive the Seventh Circuit’s view
that the designation of certain aggravated felonies as per se
“particularly serious” does not preclude the Attorney General
from deciding, on a case-by-case basis, that any other crime
is also “particularly serious.” The BIA’s adoption of this position
was reasonable. The statute does not limit the definition
of “particularly serious” crimes to aggravated felonies. Nor
does it expressly require the Attorney General, when considering
whether a crime that is not categorically barred is “particularly
serious,” to consider only aggravated felonies where
the sentence imposed was less than five years.
The legislative history of the particularly serious crime bar,
referred to by the BIA in In re N-A-M-, 24 I. & N. Dec. at
339-340, supports this interpretation. In 1980, § 243(h) of the
Immigration and Nationality Act was amended to deny withholding
to an individual who “having been convicted by a
final judgment of a particularly serious crime, constitutes a
danger to the community of the United States.” Pub L. No.
96-212, § 202, 94 Stat. 102 (1980). Under this provision, the
BIA determined on a case-by-case basis which crimes were
particularly serious, applying the balancing test of Matter of
Frentescu, 18 I. & N. Dec. 244 (BIA 1982).6 This test did not
6The BIA looked “to such factors as the nature of the conviction, the
circumstances and underlying facts of the conviction, the type of sentence
imposed, and, most importantly, whether the type and circumstances of
the crime indicate that the alien will be a danger to the community.”
Frentescu, 18 I. & N. Dec. at 247.
14280 DELGADO v. MUKASEY
take into account whether the crime in issue had been statutorily
defined as an “aggravated felony.” In time, the BIA
denominated some crimes as inherently particularly serious,
so that individual determinations with regard to those crimes
did not have to be undertaken. See, e.g., Matter of Garcia-
Garrocho, 19 I. & N. Dec. 423, 425 (BIA 1986).
The statutory provision barring those convicted of “particularly
serious” crimes from eligibility for withholding of
removal then was amended three times. The Immigration Act
of 1990 (the “1990 Act”) added the following language to
§ 243(h): “an alien who has been convicted of an aggravated
felony shall be considered to have committed a particularly
serious crime.” Pub. L. No. 101-649, 104 Stat. 4978, 5053.
Nothing in the text or history of the 1990 Act suggests that
Congress intended, by making aggravated felonies per se
“particularly serious crimes,” to divest the Attorney General
of his authority to determine, on a case-by-case basis, that
other crimes were “particularly serious,” depending on the
circumstances of their commission, among other things. And,
notwithstanding the 1990 Act, the agency understood that it
could adjudicate a crime to be “particularly serious” on a
case-by-case basis. See Ahmetovic v. INS, 62 F.3d 48, 52 (2d
Cir. 1995) (agreeing with BIA’s conclusion that a crime need
not be an aggravated felony to be adjudicated “particularly
serious”); Matter of B-, 20 I. & N. Dec. 427, 430-31 (BIA
1991) (applying Frentescu factors under the 1990 Act to
determine that the alien had been convicted of a particularly
serious crime).7
7The long history of case-by-case determination of “particularly serious”
crimes bears more weight, in our view, than the canons of construction
relied upon by the dissent. Canons of statutory construction “are tools
designed to help courts better determine what Congress intended, not to
lead courts to interpret the law contrary to that intent.” Scheidler v. Nat’l
Org for Women, 547 U.S. 9, 23 (2006). See also Chickasaw Nation v.
United States, 534 U.S. 84, 93-95 (2006).
DELGADO v. MUKASEY 14281
Congress relaxed the per se category created by the 1990
Act in 1996 with the passage of section 413(f) of the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214, 1269 (1996) (“AEDPA”). The
AEDPA amended § 243(h) to allow the Attorney General, “in
[his] discretion,” to override the categorical bar designating
all aggravated felonies “particularly serious” when “necessary
to ensure compliance with the 1967 United Nations Protocol
Relating to the Status of Refugees.” Id.8 The categorical bar
was again relaxed later that year with the passage of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546,
3009-602 (“IIRIRA”). IIRIRA enacted the provision at issue
here, which limits application of the categorical bar to aggravated
felons sentenced to 5 years’ or more imprisonment. Id.
[4] We recognize that one of the aims of Congress in enacting
the post-1990 statutory amendments was probably to
avoid sweeping minor crimes into the categorical aggravated
felony bar. But nothing in the legislative history indicates that
Congress intended, by creating a categorical bar and by later
relaxing that categorical bar, to eliminate the Attorney General’s
pre-existing discretion to determine that, under the circumstances
presented by an individual case, a crime was
“particularly serious,” whether or not the crime was an aggravated
felony. We therefore find the BIA’s interpretation of the
statute reasonable, and conclude that the BIA was entitled to
8Although the legislative history is sparse, there seems to be no doubt
that one purpose of this enactment was to prevent violations of the Refugee
Convention’s non-refoulement provision that might occur because of
a rigid application of the aggravated felony bar. See In re Q-T-M-T-, 21
I. & N. Dec. 639, 648 n.4 (BIA 1996). Such treaty violations were becoming
more likely because, at the time, the list of aggravated felonies was
expanding, and a categorical bar could have included “fairly minor
offenses” in its sweep. Id. (internal quotations and citation omitted); see
also Choeum v. INS, 129 F.3d 29, 42-44 (1st Cir. 1997) (accepting INS’s
argument that 1996 amendments were fueled by expansion of the term
“aggravated felony”).
14282 DELGADO v. MUKASEY
determine, by adjudication, that Delgado’s DUI convictions
were particularly serious crimes that barred him from eligibility
for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(B) and CAT withholding under 8 C.F.R.
§ 1208.16(d)(2).
B. Asylum
[5] We now turn to whether the BIA was authorized to
determine that Delgado’s crimes were “particularly serious”
for the purposes of his asylum application.9 Just as in the context
of withholding, the relevant statute provides that an alien
is ineligible for asylum if the Attorney General determines
that “the alien, having been convicted of a particularly serious
crime, constitutes a danger to the community.” 8 U.S.C.
§ 1158(b)(2)(A)(ii). For the purposes of this provision, “an
alien who has been convicted by a final judgment of an aggravated
felony shall be considered to have been convicted of a
particularly serious crime.” 8 U.S.C. § 1158(b)(2)(B)(i). In
addition, “[t]he Attorney General may designate by regulation
offenses that will be considered to be a [particularly serious]
crime . . . .” 8 U.S.C. § 1158(b)(2)(B)(ii).
[6] There seems little question that this last provision permits
the Attorney General to make particular crimes categorically
“particularly serious” even though they are not
aggravated felonies. The provision would be wholly redundant
if the Attorney General were confined to making only
aggravated felonies “particularly serious” crimes by regulation.
The different question posed by this asylum statute is
whether the Attorney General can determine by adjudication
that an individual alien’s crime was “particularly serious,” or
9The BIA’s precedential decision in In re N-A-M- did not address
§ 1158(b)(2)(B)(I) because the asylum application in that case was
untimely. We therefore have no precedential decision of the BIA to be
accorded Chevron deference on the precise asylum question presented
here.
DELGADO v. MUKASEY 14283
whether he must first by regulation provide that the particular
crime is to be so characterized.
Our discussion of the withholding statute is instructive. Just
as with withholding, the agency initially made the determination
whether an alien’s crime was particularly serious strictly
by adjudication, applying the Frentescu factors. See
Frentescu, 18 I. & N. Dec. at 247. Congress intervened in the
1990 Act only to ensure that certain crimes (aggravated felonies)
would be categorically determined to be “particularly
serious,” regardless of the circumstances of their commission.10
Congress then added its permission for the Attorney General
in asylum cases to “designate by regulation offenses that will
be considered to be [particularly serious crimes].” Id. It is
most reasonable to interpret this provision as similarly concerned
with the categorical designation of additional crimes
as “particularly serious.” Indeed, it would be difficult to designate
by regulation crimes that “will be considered” to be
particularly serious unless the designation is categorical for
those crimes. The provision simply does not speak to the ability
of the Attorney General to determine in an individual case
that the circumstances of an alien’s commission of a crime
made that crime particularly serious, even though the same
offense committed by other persons in other circumstances
would not necessarily be particularly serious. The statute does
not require the Attorney General to anticipate his adjudication
by a regulation covering each particular crime. See Ali, 468
F.3d at 469.
[7] We therefore conclude that the BIA did not err in proceeding
to determine by adjudication, in the absence of regulation,
whether Delgado had committed a “particularly
serious” crime that rendered him ineligible for asylum.
10As we described in the previous section, Congress relaxed its categorical
bar somewhat with regard to withholding of removal. It did not do so
with regard to asylum.
14284 DELGADO v. MUKASEY
C. The merits of the BIA’s decision
The next question for decision is whether we may review
the merits of the BIA’s determination that Delgado’s DUI
convictions were “particularly serious crimes.” We conclude
that we may not.11
[8] We are statutorily precluded from reviewing decisions
of the Attorney General “the authority for which is specified
under this subchapter to be in the discretion of the Attorney
General . . . , other than the granting of relief under section
1158(a) of this title [relating to asylum].”12 8 U.S.C.
§ 1252(a)(2)(B)(ii). In Matsuk v. INS, 247 F.3d 999 (9th Cir.
2001), we were presented with a determination by the BIA
that an aggravated felony resulting in a sentence of less than
five years imprisonment was a “particularly serious” crime.
We held that the BIA’s ruling was an unreviewable discretionary
decision within the meaning of the statutory bar. See
id. at 1002. In later explaining this ruling, we stated:
[T]he decision at issue in Matsuk — whether to classify
an alien’s past offense as a ‘particularly serious
crime’ under § 1231(b)(3)(B) — is a decision that is
entirely lacking in statutory guidelines. Under the
11Other circuits have split on this issue. The Seventh Circuit holds that
it is without jurisdiction to review the merits of the determination of an
alien’s crime to have been “particularly serious,” see Ali, 468 F.3d at 468;
Tunis v. Gonzales, 447 F.3d 547, 549 (7th Cir. 2006), but the Third Circuit
took a contrary position in Alaka, 456 F.3d at 94-101, as did the Second
Circuit in Nethagani v. Mukasey, 532 F.3d 150, 154 (2d Cir. 2008).
12The preservation of our authority to review discretionary decisions
relating to asylum is confined to decisions under § 1158(a), which does
not include the bar for “particularly serious” crimes. We have described
this provision authorizing review of an otherwise-unreviewable discretionary
decision as relating to “the ultimate authority whether to grant asylum.”
See Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th
Cir. 2003). Thus, not every ruling arising in an asylum case is subject to
review. See, e.g., Lanza v. Ashcroft, 389 F.3d 917, 924 (9th Cir. 2004).
DELGADO v. MUKASEY 14285
language of the statute, this decision is left entirely
to the discretion of the Attorney General, with no
governing statutory standards.
Spencer Enters., Inc. v. United States, 345 F.3d 683, 690 (9th
Cir. 2003). The language that Matsuk and Spencer found to
“specify” the authority to be discretionary in the Attorney
General, within the meaning of § 1252(a)(2)(B)(ii), was the
statutory provision denying withholding “if the Attorney General
decides that . . . an alien has been convicted of a particularly
serious crime.” 8 U.S.C. § 1231(b)(3)(B); see also
Spencer, 345 F.3d at 689-90. Virtually identical statutory language
relates to asylum. Asylum is barred “if the Attorney
General determines that . . . the alien, ha[s] been convicted . . .
of a particularly serious crime.”13 8 U.S.C.
§ 1158(b)(2)(A)(ii). The statutory language, therefore, suggests
that the ultimate decision whether a crime is “particularly
serious” is a discretionary decision not subject to our
review with regard both to withholding of removal and of asylum.
[9] After the decisions in Matsuk and Spencer, Congress
enacted the REAL ID Act of 2005, which provides that nothing
in the provision limiting review of the Attorney General’s
discretionary decisions “shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review.” 8 U.S.C. § 1252(a)(2)(D). Our
decisions subsequent to the REAL ID Act make clear, however,
that the ultimate determination by the Attorney General
that a crime is “particularly serious” is still an unreviewable
discretionary decision. We so stated in Unuakhaulu v. Gonzales,
416 F.3d 931, 935 (9th Cir. 2005). Then, in Afridi v.
Gonzales, 442 F.3d 1212 (9th Cir. 2006), we were presented
with a case where the IJ had failed to engage in a case-
13In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007), discussed later
in this opinion, we emphasized the statutory language “if the Attorney
General decides that” as granting unreviewable discretion. Id. at 655.
14286 DELGADO v. MUKASEY
specific application of the Frentescu factors. Id. at 1219. We
determined that this failure raised a point of law, and we
remanded for further proceedings. Id. at 1219-21. In doing so,
however, we recognized the limits of the question of law that
we were deciding: “While we cannot reweigh evidence to
determine if the crime was indeed particularly serious, we can
determine whether the BIA applied the correct legal standard
in making its determination.” Id. at 1218. A fair reading of
Afridi is that the ultimate determination of the “particularly
serious” nature of a crime is not subject to our review.
[10] Most recently, we decided in Ramadan v. Gonzales,
479 F.3d 646 (9th Cir. 2007), that in preserving our authority
to review questions of law, the REAL ID Act permitted us to
review mixed questions of law and fact. Id. at 654. Ramadan
made clear, however, that the REAL ID Act did not “restore
[our] jurisdiction over discretionary determinations.” Id. And
it gave as an example of a statutorily-specified discretionary
determination the “Attorney General’s determination . . . that
an aggravated felony is a particularly serious crime,” citing
Matsuk. Id. at 655. It seems clear under our precedent, therefore,
that the authority to review questions of law or mixed
questions of law and fact under the REAL ID Act did not
include a power to review a determination of the Attorney
General that a crime was “particularly serious.”
The dissent reads Morales v. Gonzales, 478 F.3d 972 (9th
Cir. 2007), to hold that we have jurisdiction over the “particularly
serious” question as it relates to asylum applications. We
do not read Morales to hold as much. To be sure, there is language
in that case suggesting that the court had jurisdiction
over the “particularly serious” question because it fell under
an exception to the jurisdiction-stripping statute. Morales, 478
F.3d at 980 (“The denial of asylum is reviewable because it
is specifically exempted from § 1252(a)(2)(B)(ii)’s
jurisdiction-stripping provisions.”). The court, however, did
not review the merits of the “particularly serious” finding.
Instead, it determined whether the immigration judge relied
DELGADO v. MUKASEY 14287
on the wrong facts in concluding that the crime was particularly
serious—a question of law that is reviewable. Morales,
478 F.3d at 981-83; see Afridi, 442 F.3d at 1218.
Moreover, § 1252(a)(2)(B)(ii) excepts from the jurisdictional
bar the granting of relief under § 1158(a), relating to the
authority to apply for asylum; it does not speak to § 1158(b),
which is the “particularly serious” provision. It is true that the
interrelation between §§ 1158(a) and (b) means that the success
of an asylum application may depend on whether there
has been a “particularly serious” crime. That alone, however,
does not overcome the obvious problem that § 1252 excepts
only § 1158(a). Thus, neither the statutory framework nor
Morales supports the dissent’s theory that § 1252 excepts all
asylum-related decisions from its jurisdictional bar.
Finally, in Morales we suggested that, because our past
decisions had held the Attorney General’s determination of a
“particularly serious” crime to be an unreviewable discretionary
determination only with regard to aggravated felonies, it
would be an extension of our law to apply the same rule to
other crimes. See 478 F.3d at 979-80. Morales found it unnecessary
to decide whether such an extension was appropriate,
but our analysis above should make it clear that, under our
precedent, the Attorney General’s unreviewable discretion
must extend to both aggravated felonies and other crimes, and
to both withholding of removal and asylum. The statutory
framework for all of these decisions is virtually identical. The
Attorney General exercises the same specified discretionary
authority, and applies the same statutory language that bars
relief, in all of these instances. There is, in our view, no analytically
sound way to draw a line permitting review of some
of these determinations and excluding review of others.
[11] We conclude, therefore that we are precluded by
§ 1252(a)(B)(ii) from reviewing the merits of the BIA’s determination
that Delgado’s crimes were “particularly serious.”
That issue does not present a reviewable question of law
14288 DELGADO v. MUKASEY
within the meaning of the REAL ID Act, 8 U.S.C.
§ 1252(a)(2)(D).
II. Relief under the Convention Against Torture
[12] We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to
review the BIA’s denial of Delgado’s claim for CAT deferral,
see Morales, 478 F.3d at 980-81, and we review that decision
for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975,
979 (9th Cir. 2004). In order to be eligible for CAT deferral,
Delgado must prove that he is more likely than not to be tortured
upon his return to El Salvador. Id.; 8 C.F.R.
§ 1208.17(a).
[13] As the IJ noted, Delgado presented evidence that his
mother, and probably his father, were victims of the rampant
human rights violations that took place in El Salvador in the
late 1970s and early 1980s. However, Delgado has not provided
sufficient evidence that he currently risks being harmed
if he returns to his native country. Country reports indicate
that conditions in El Salvador have improved significantly
since Delgado left the country, and that there is no longer evidence
of politically motivated violence, killings, or disappearances
in El Salvador. We therefore conclude that the BIA’s
decision that Delgado is not entitled to CAT deferral is supported
by substantial evidence.
Conclusion
The petition for review is DISMISSED in part and
DENIED in part.
BERZON, Circuit Judge, dissenting:
The majority opinion is seriously off-track with respect to
three of its four key holdings. As to the fourth, I agree that we
DELGADO v. MUKASEY 14289
are bound by Ninth Circuit precedent, but believe that precedent
to be quite wrong, as well as inconsistent with the law
as it has been developing in other circuits.
To summarize my views:
First and most important, neither of the majority’s two
holdings concerning the “particularly serious crime” provisions
of 8 U.S.C. §§ 1158(b)(2)(B) and 1231(b)(3)(B) can be
reconciled with the most basic principles of statutory interpretation.
The majority concludes that the “particularly serious
crime” exclusions for asylum and withholding of removal
mean nearly the same thing, substantively and procedurally,
even though the language, structure, purpose, and context of
the two sections are all quite different. That simply cannot be.
For the reasons I discuss below, the only viable construction
of the “particularly serious crime” provision of § 1231(b)
(3)(B), the withholding version, is that only aggravated felonies
can be “particularly serious crime[s].” And the only viable
interpretation of the asylum “particularly serious crime”
provision, § 1158(b)(2)(B), is that the Attorney General can
make non-aggravated felonies “particularly serious crimes”
only through regulation, not on a case-by-case basis.
Second, as to the jurisdictional issues, the majority’s conclusion
that 8 U.S.C. § 1252(a)(2)(B)(ii) withdraws our jurisdiction
to review the Board of Immigration Appeals’
(“BIA’s”) asylum decision is directly in conflict with Morales
v. Gonzales, 478 F.3d 972 (9th Cir. 2007). Morales held that
asylum issues generally are reviewable, even when committed
to the Attorney General’s discretion, because of an express
statutory provision pertaining only to asylum decisions. The
majority holds the opposite. Moreover, the majority does not
recognize that some of the specific claims Delgado seeks to
raise regarding the determination that his convictions constitute
a “particularly serious crime” are, substantively and procedurally,
“legal questions related to th[is] determination,” Id.
14290 DELGADO v. MUKASEY
at 980. Because they are, we have jurisdiction to decide them
even with regard to withholding of removal. Id.
Third, the majority properly relies on Matsuk v. INS, 247
F.3d 999 (9th Cir. 2001), to hold that the BIA’s determination
that a crime is “particularly serious” for withholding purposes
is discretionary and so not reviewable. But Matsuk rests on
faulty premises, recently rejected by the Second and Third
Circuits in convincing opinions. In my view, Matsuk should
be reconsidered by this Court sitting en banc.
I address each issue just outlined in turn.
I. Particularly Serious Crime Exceptions
A. Overview
Congress’s goal when it created the “particularly serious”
crime exception was, in part, to provide a basis for removal
of certain aliens convicted of criminal offenses that conforms
to our international commitments. This purpose resulted in
key differences between the “particularly serious crime” provisions
applicable to withholding and those applicable to asylum.
The majority’s opinion considers neither the origin of the
“particularly serious crimes” provisions nor the obvious differences
between them, and so comes to the erroneous conclusion
that the two provisions are both essentially identical and
essentially limitless. As a result, the majority allows to stand
the BIA’s conclusion that Delgado’s DUI convictions were
each “particularly serious crimes,” barring both asylum and
withholding relief, a conclusion that, as I shall show, clashes
with Congress’s underlying basis for adopting the “particularly
serious crime” exception.
1. The Refugee Convention and Protocol
The original source of the term “particularly serious crime”
is the 1951 Convention Relating to the Status of Refugees, 19
DELGADO v. MUKASEY 14291
U.S.T. 6259, 189 U.N.T.S. 150 (“Convention”). The Convention
prohibits states from “return[ing] an alien to a country
where his ‘life or freedom would be threatened’ on account of
one of the enumerated reasons.” INS v. Cardoza-Fonseca, 480
U.S. 421, 429 (1987). An exception to this rule permits
removal of an alien who, “having been convicted . . . of a particularly
serious crime, constitutes a danger to the community
of that country.” Convention, art. 33 (2).
Both the duty not to remove an alien to a country where
such persecution is likely and the “particularly serious crime”
exception were adopted by the United States through accession
to the 1967 UN Protocol relating to the Status of Refugees
(“Protocol”), 19 U.S.T. 6223, 606 U.N.T.S. 267, which
includes the obligations previously enumerated in the Convention.
Both the duty and the exception were incorporated,
in turn, in the Immigration and Nationality Act (“INA”) by
the Refugee Act of 1980. See Cardoza-Fonseca, 480 U.S. at
429; Matter of Frentescu, 18 I. & N. Dec. 244, 246 n.2, (BIA
1982). Thus, “[i]f one thing is clear from the legislative history
of the . . . 1980 Act, it is that one of Congress’ primary
purposes was to bring United States refugee law into conformance
with the 1967 United Nations Protocol Relating to the
Status of Refugees.” Cardoza-Fonseca, 480 U.S. at 436.
Consistent with this purpose, the Supreme Court has interpreted
terms used in these 1980 refugee amendments to the
INA in light of their meaning under the Convention and Protocol.
See id. at 439 nn.22 & 24 (citing UN High Commission
for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status, Ch. II B(2)(a) §§ 37-42 (1979)
(“Handbook”), and 1 A. Grahl-Madsen, The Status of Refugees
in International Law 180 (1966)) (interpreting term “refugee”
as used in § 243(h) of the INA by 1980 Act, through
reference to analysis of its meaning under the Protocol)). The
meaning of “particularly serious crime” under the Convention
and Protocol is thus critically important in interpreting the
same term in the INA.
14292 DELGADO v. MUKASEY
Taking that approach, how serious is a “particularly serious
crime”? The Convention and Protocol do not provide a definition,
but they do offer a basis for comparison with other
offenses. In Matter of Frentescu, the BIA pointed out that
because the Convention also established an exception to withholding
of removal for “serious nonpolitical crimes” an alien
has committed outside the country where he has taken refuge,
“it should be clear that a ‘particularly serious crime’ . . . is
more serious than a ‘serious nonpolitical crime.’ ” Id. at 247
(emphasis added); see also 8 U.S.C. § 1231(b)(3)(B)(iii);
Convention art. 33(1)(F) (establishing that an “alien [who]
committed a serious nonpolitical crime outside the United
States before the alien arrived in the United States” is not eligible
for withholding of removal) (emphasis added). In other
words, an offense that is less serious than a “serious nonpolitical
crime” cannot be a “particularly serious crime.” The
Handbook, which “provides significant guidance in construing
the Protocol,” Cardoza-Fonseca, 480 U.S. at 439 n.22,
describes a “serious non-political crime” as “a capital crime
or very grave punishable act.” Handbook, ¶ 155 (1992 ed.).
To qualify as a “particularly serious crime” under the Convention
and Protocol, then, an offense must be more serious
than just any “very grave punishable act.”1
While such an interpretation of “particularly serious crime”
may seem overly narrow, it is consistent with the basic premises
of the Convention. Conviction for a “particularly serious
crime” permits removal of an alien to a country where it is
probable that he will be deprived of “life or freedom” on
1Confirming this understanding of the exception’s scope are the specific
examples of “particularly serious crime” offered by a leading commentator
on the Convention. See Grahl-Madsen, Commentary on the Refugee
Convention, 1951, art. 33 cmt. 10 (1997). The examples given are
instances of murder with aggravating circumstances, for which conviction,
in our own legal system, would typically be punishable by death or a life
sentence. See id. (offering as examples of particularly serious crimes
“blowing up . . . a passenger airplane in order to collect life insurance, or
wanton killing in a public place.”).
DELGADO v. MUKASEY 14293
account of protected grounds. Convention art. 33(1), (2). The
reason removal under these circumstances is justified is that
the alien has committed a crime so serious that, even if he
remained in his country of refuge, its state would be justified
in imposing grave punishment upon him.
In this case, the BIA determined that Delgado was ineligible
for asylum and withholding of removal because his three
DUI convictions constituted a “particularly serious crime”
under both §§ 1231(b)(3)(B) and 1158(b)(2)(B), relating to
withholding of removal and asylum respectively. Among
these offenses was a conviction for driving under the influence
causing death or bodily injury, which resulted from an
accident where Delgado and his passenger (and possibly,
though the record is unclear, the occupants of the other vehicle)
were seriously injured. While I in no way minimize the
seriousness of Delgado’s offenses, I do not see how a DUI —
which, as the majority recognizes, is not an “aggravated felony”
for purposes of our own immigration law, see Maj. Op.
at 14275 — can be a “particularly serious crime” in the sense
that Congress understood the term when it incorporated it into
the INA — at least with respect to withholding of removal,
which, as I explain shortly, is the bedrock protection afforded
aliens in danger of persecution in their home countries on a
protected ground.
2. Asylum and Withholding of Removal
A conviction for a “particularly serious crime” makes an
alien ineligible for asylum, as well as for withholding of
removal. § 1158(b)(2)(B) (asylum); § 1231(b)(3)(B) (withholding).
However, “Congress has drawn a critical distinction
in its use of the term ‘particularly serious crime’ ” in
§ 1158(b)(2)(B) as compared with the use of the same term in
§ 1231(b)(3)(B), In re L-S-, 22 I. & N. Dec. 645, 652 (BIA
1999), and for good reason.
Regarding eligibility for withholding of removal,
§ 1231(b)(3)(B) states that,
14294 DELGADO v. MUKASEY
[A]n alien who has been convicted of an aggravated
felony (or felonies) for which the alien has been sentenced
to an aggregate term of imprisonment of at
least 5 years shall be considered to have committed
a particularly serious crime. The previous sentence
shall not preclude the Attorney General from determining
that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particularly
serious crime.
In the case of eligibility for asylum, § 1158(b)(2)(B) establishes
that,
[A]n alien who has been convicted of an aggravated
felony shall be considered to have been convicted of
a particularly serious crime.
. . . The Attorney General may designate by regulation
offenses that will be considered to be a [particularly
serious] crime . . .
The obvious differences in the statutory text of these two
subsections suggest three distinctions in meaning.
First, the category of per se “particularly serious crime[s]”
is broader in the asylum context than it is in the case of withholding
of removal. Section 1158(b)(2)(B) makes all aggravated
felonies per se “particularly serious crime[s]” for
asylum purposes, while § 1231(b)(3)(B), pertaining to withholding
of removal, only makes aggravated felonies “for
which the alien has been sentenced to an aggregated term of
at least five years imprisonment” a per se category of “particularly
serious crime[s].”
Second, with regard to asylum, the statutory structure and
language suggest no express limitation as to which crimes
may be designated as “particularly serious.” Rather, all aggravated
felonies are per se “particularly serious,” and other
DELGADO v. MUKASEY 14295
crimes may be so designated. In contrast, the withholding of
removal provision confers on the Attorney General the
authority to determine that an offense is a “particularly serious
crime” notwithstanding the length of the sentence
imposed, but does not confer any express authority to designate
non-aggravated felonies as “particularly serious.”
Third, the two subsections define differently how offenses
outside of these per se categories may be determined to constitute
particularly serious crimes. The asylum provision states
that “the Attorney General may designate by regulation
offenses that will be considered particularly serious crimes.”
(emphasis added). By contrast, the withholding provision
gives the Attorney General the general authority to “determine”
whether a crime is particularly serious, indicating that
any otherwise permissible method of determination is
allowed.
The majority concludes that these obvious distinctions are
without much practical difference. On the majority’s view, the
only difference between the two “particularly serious crime”
exceptions is that for asylum purposes all aggravated felonies
are per se particularly serious crimes, while for withholding
purposes only aggravated felonies for which the sentence was
longer than five years are automatically particularly serious.
As to the Attorney General’s ultimate authority — to designate
any crime as particularly serious — and methodology —
to designate crimes as particularly serious by regulation or on
a case-by-case basis — the majority sees the two statutes as
identical. Why Congress bothered to word the otherwise parallel
sections so differently in this regard when it meant the
same thing we are not told.
Taking together the guidance provided by Congress’s
intention to abide by the Protocol and Convention and the
very different statutory language Congress used with regard
to asylum and withholding of removal, I would begin my
interpretation of the statute by recognizing — as the majority
14296 DELGADO v. MUKASEY
does not — that Congress wrote two different “particularly
serious crime” provisions because it meant two different
things. Critically, asylum and withholding of removal differ
under the INA in ways other than the differences in their “particularly
serious crime” provisions, and do so in ways connected
to the Protocol and the Convention. These other
differences go a long way toward explaining why the “particularly
serious crime” exception is considerably broader substantively
but more restrictive procedurally for asylum than
for withholding of removal.
For an alien to be granted withholding of removal under the
INA, he must show that it is “more likely than not” that he
will be persecuted in the country to which he otherwise would
be removed. INS v. Stevic, 467 U.S. 407, 424 (1984); 8 U.S.C.
§ 1231(b)(3)(A) (prohibiting removal of an alien whose “life
or freedom would be threatened in that country [to which the
alien otherwise would be removed] because of [a protected
ground]”). Withholding of removal thus represents the minimum
level of relief required by the Convention and Protocol.
Compare § 1231(b)(3)(A), to Convention, art. 33 (1) (stating
that no Contracting State may “return (‘refouler’) a refugee
. . . to the frontiers of territories where his life or freedom
would be threatened on account of [a protected ground]”).
Accordingly, such relief is mandatory if an alien is eligible.
See 8 U.S.C. § 1231(b)(3)(A)(“[T]he Attorney General may
not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in
that country . . .” (emphasis added)); Stevic, 467 U.S. at 421
n.15.
By contrast, to be eligible for asylum an alien is not
required to show that it is “more likely than not,” id. at 424,
that he will be persecuted in the country to which he would
be removed. Instead, he need only show that he has been persecuted
on account of a protected ground in the past, or that
he has a “well-founded fear” of persecution in the future. See
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). To establish such
DELGADO v. MUKASEY 14297
a well-founded fear, an applicant need only show a one in ten
chance of persecution. See Cardoza-Fonseca, 480 U.S. at
431. At the same time, the granting of asylum to eligible
aliens is discretionary, not mandatory. See 8 U.S.C. § 1158
(b)(1)(A) (“(T)he Attorney General may grant asylum . . .”
(emphasis added)). The reason that this discretionary benefit
is consistent with this country’s obligations under the Convention
and Protocol, and therefore with Congress’ intention
to “bring United States refugee law into conformance with the
. . . Protocol,” Cardoza-Fonseca, 480 U.S. at 436, is that the
standards for eligibility for asylum are more relaxed than the
Convention and Protocol require. As a result, as Congress
understood, asylum need not conform in all respects with the
international commitments, as long as withholding relief does
so conform.
These substantive differences between asylum and withholding
of removal under the INA have important implications
for how the “particularly serious crime” exception
applies to each form of relief from removal. Withholding of
removal is the form of relief essential to Congress’s goal of
“conformance with the . . . Protocol.” Id. at 436. That goal can
only be achieved if a “particularly serious crime” for which
an alien is denied eligibility for withholding of removal under
the statute also qualifies as such under the Protocol itself. Not
so with asylum, because asylum relief, as a whole, is not
structured to conform to the Protocol.
This critical substantive distinction between asylum and
withholding of removal suggests some answers to the key
question that the majority, puzzlingly, does not even ask:
Why did Congress in IIRIRA adopt such distinctly different
statutory language to define the same term — “particularly
serious crime” — in § 1231(b)(3)(B), relating to withholding
of removal, and in § 1158 (b)(2)(B), relating to asylum? The
evident reasons are two.
First, with respect to the asylum exception, Congress did
not need to give the Attorney General the authority to “deter-
14298 DELGADO v. MUKASEY
mine” on a case-specific basis which offenses constitute “particularly
serious crime[s].” Even for aliens eligible for
asylum, the Attorney General can exercise discretion not to
grant asylum because of the alien’s criminal record, whether
the alien has committed a “particularly serious crime” or not.
The only reason to specify “particularly serious crimes” for
asylum eligibility purposes, consequently, is to provide for
uniformity with regard to categories of crimes. By contrast,
aliens who qualify for withholding of removal are mandatorily
entitled to such relief, see Stevic, 467 U.S. at 421 n.15,
so there could be no case-by-case individualized “determin[ation]”
based on criminal history without specific statutory
authorization.
Second, the difference between the eligibility and discretion
standards applicable to asylum and withholding of removal
also helps explain why Congress made all aggravated felonies,
not only those with sentences of five years or more, per
se “particularly serious crime[s]” for asylum purposes and
also why Congress did not restrict “particularly serious
crimes” to aggravated felonies for that purpose. Limitations
on asylum relief do not risk violation of the Protocol, so long
as withholding of removal relief conforming to the Protocol
remains available. See, generally, L-S-, 22 I. & N. Dec. at 652
(stating that “the reason for [Congress’] . . . different
approach” in § 1158 (b)(2)(B) and § 1231(b)(3)(B) is that
“Congress understood that in enacting revised section
[§ 1231](b)(3), it was carrying forth the statutory implementation
. . . of our international treaty obligations”). Consequently,
there was reason for Congress to take particular care
with regard to withholding of removal, to assure that aliens
who otherwise meet the statutory requirement for relief are
denied this relief only for offenses that are likely to meet the
“particularly serious crime” exception in the Protocol.
The majority turns a blind eye to all of these considerations
— the meaning of the “particularly serious crime” locution in
the original internal documents, the differences between asy-
DELGADO v. MUKASEY 14299
lum and withholding relief, and the obvious distinctions
between the asylum and withholding “particularly serious
crimes” exceptions. Not surprisingly, given its out-of-context
approach, the majority’s ultimate conclusions on the “particularly
serious crime” issues are wrong as well.
B. 8 U.S.C. § 1231(b)(3)(B) — Withholding of Removal
The majority concludes that § 1231(b)(3)(B) authorizes the
Attorney General to designate any non-aggravated felony as
a “particularly serious crime” for purposes of eligibility for
withholding of removal.2 Even on its own narrow terms, the
majority’s reasoning in so concluding is inconsistent with a
plain reading of the text, with established canons of statutory
interpretation, and with the history of the provision.
1. Statutory Language
Initially, as the Third Circuit held in Alaka v. Atty. Gen. of
2The majority views this issue as one of first impression in our circuit.
In so concluding, the majority misreads our decision in Morales as having
“assumed . . . [that] the Attorney General could deem a non-aggravated
felony ‘particularly serious.’ ” Maj. Op. at 14279 n.5. In fact, Morales recognized
that such an interpretation is not in accord with our previous
cases; instead, it “broadens the discretion we have previously determined
that § 1231(b)(3)(B)(ii) gives the Attorney General.” 478 F.3d at 979-80
(citing Afridi v. Gonzales, 442 F.3d 1212, 1217 (9th Cir. 2006);
Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir. 2005); Singh v. Ashcroft,
351 F.3d 435, 439 (9th Cir. 2003); Matsuk, 247 F.3d at 1002)).
Morales went on to make clear that the question whether the Attorney
General’s discretion is broader than we had previously held it was would
“not be determined in this case.” Id.
Quite arguably, the question is not one that can be properly decided by
a three-judge panel, given the earlier cases construing § 1231(b)(3)(B) as
not encompassing the broad discretion the BIA now claims. See In re
Complaint of Ross Island Sand & Gravel, 226 F.3d 1015, 1018 (9th Cir.
2000) (“[A]bsent a rehearing en banc, we are without authority to overrule
[circuit precedent]”). I nonetheless in this dissent meet the majority on its
own ground, rather than resting on stare decisis.
14300 DELGADO v. MUKASEY
the United States, 456 F.3d 88 (3d Cir. 2006), a plain words,
common sense reading of § 1231(b)(3)(B) indicates that Congress
did not authorize the Attorney General to designate nonaggravated
felonies as particularly serious crimes. See id. at
104. After specifying that any aggravated felony resulting in
a sentence of five years or more “shall be considered . . . a
particularly serious crime,” § 1231(b)(3)(B) provides that “the
previous sentence shall not preclude the Attorney General
from determining that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particularly serious
crime.” Quite obviously, the authority conferred — to “determin[
e] that, notwithstanding the length of sentence imposed,
an alien has been convicted of a particularly serious crime” —
refers to the limitation imposed in “the previous sentence” —
whether the offense carried an “aggregate term of imprisonment
of at least five years.” Id. (emphasis added).
This Court has at least three times previously recognized
that this is the natural reading of the statutory text. See Villegas
v. Mukasey, 523 F.3d 984, 987 (9th Cir. 2008) (“Crimes
resulting in imprisonment for at least five years are ‘particularly
serious’ per se, while the Attorney General can determine
that any aggravated felony, regardless of the sentence
imposed is particularly serious.”); Afridi, 442 F.3d at 1217
(stating that § 1231(b)(3)(B)(ii) provides the Attorney General
with “discretion to determine whether an aggravated felony
conviction resulting in a sentence of less then five years
is a particularly serious crime”); Singh v. Ashcroft, 351 F.3d
435, 439 (9th Cir. 2003) (“An aggravated felony that results
in at least a five-year sentence is considered a particularly
serious crime. Moreover, under Section 1231(b)(3)(B)(ii) the
Attorney General may determine that any aggravated felony,
even one that results in a sentence of less than five years,
qualifies as particularly serious.”). That this court has repeatedly
regarded that understanding of the provision as the
facially apparent one confirms that it is the ordinary meaning
that a reader takes from it. I submit that the reason these cases
DELGADO v. MUKASEY 14301
did not saying anything more on the matter is that there is
nothing more to say, once one reads the statute.
The majority, however, regards our earlier cases as not having
adequately addressed the possibility that non-aggravated
felonies are “particularly serious crimes,” and goes on to
adopt the reasoning of the Seventh Circuit’s decision in Ali v.
Achim, 468 F.3d 462 (7th Cir. 2006), cert. granted, 128 S. Ct.
29, cert. dismissed, 128 S. Ct. 828 (2007). Ali’s interpretation,
later adopted by the BIA in In re N-A-M-, 24 I. & N. Dec. 336
(BIA 2007), relies on what the statute doesn’t say, rather than
on what it does, asserting that because Ҥ 1231 does not state
a general rule that only aggravated felonies can be considered
‘particularly serious’ crimes,” § 1231(b)(3)(B) “creates no
presumption that the Attorney General may not exercise discretion
on a case-by-case basis to decide that other
nonaggravated-felony crimes are also ‘particularly serious.’ ”
468 F.3d at 470. Ali — and the majority’s — reading of
§1231(b)(3)(B) runs counter to basic principles of statutory
construction.
First, the Ali/N-A-M- interpretation renders the sentence
that begins “the previous sentence” entirely superfluous. If
Congress’s (unstated) understanding was that the Attorney
General could designate any offense as a particularly serious
crime, then why would Congress need to say anything to
negate the contrary implication of the “previous sentence”?
And once Congress did choose to clarify that some discretion
remained to the Attorney General, why would it limit that
clarification to extending this authority “notwithstanding the
length of a sentence,” if it meant to allow unlimited discretion?
We simply don’t read statutes as throwing around loose,
meaningless language for no discernible reason. See United
States v. Novak, 476 F.3d 1041, 1048 (9th Cir. 2007) (stating
that courts should “avoid whenever possible statutory interpretations
that result in superfluous language”). Yet, that is
what the majority, relying on Ali and N-A-M-, proposes.
14302 DELGADO v. MUKASEY
The majority’s interpretation of §1231(b)(3)(B) also conflicts
with another basic interpretive rule, “expressio unius est
exclusio alterius,” which specifies that the inclusion of one
item ordinarily excludes similar items that could have been,
but were not, mentioned. See Barnhart v. Peabody Coal Co.,
537 U.S. 149, 168 (2003). Section 1231(b)(3)(B) specifically
permits the Attorney General to designate aggravated felonies
resulting in prison terms of less than five years as “particularly
serious crime[s].” “[W]hen the items expressed are
members of an associated group . . . the inference [is] that
items not mentioned were excluded by deliberate choice.” Id.
(internal quotation marks omitted). Whether we define the
“associated group” here as “crimes,” “felonies” or “aggravated
felonies,” the sole members of the group named in
§ 1231(b)(3)(B) are convictions for aggravated felonies:
those carrying sentences of more than five years, and those
carrying sentences of less than five years. The fact that nonaggravated
felonies were not mentioned at all necessarily suggests
that Congress did not intend to include them as “particularly
serious crime[s]” for purposes of withholding of
removal.
Ali suggests that the canon does not apply in this case
because Ҥ 1231 does not state a general rule that only aggravated
felonies can be considered ‘particularly serious.’ ” 468
F.3d at 470. But this rejoinder turns the canon of construction
backwards. The canon looks to what a statute includes
(“expressio unius”), to determine what it does not (“exclusio
alterius”), not vice versa.
Moreover, and critically, the majority’s interpretation fails
to give effect to the distinctions in statutory language between
§ 1231(b)(3)(B) and § 1158(b)(2)(B). The latter states, in
§ 1158(b)(2)(B)(i), that any “[c]onviction of an aggravated
felony,” is a particularly serious crime, but then adds, in
§ 1158(b)(2)(B)(ii), that “[t]he Attorney General may designate
by regulation offenses that will be considered” a particularly
serious crime, without any mention of “the length of the
DELGADO v. MUKASEY 14303
sentence imposed.” The majority nonetheless reads the
authority accorded the Attorney General under the two quite
different “particularly serious crime” provisions as identically
broad. “[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.” Tang
v. Reno, 77 F.3d 1194, 1197 (9th Cir. 1996).
To make matters worse, the majority’s interpretation of
§ 1231(b)(3)(B)(ii) is also inconsistent with the rest of the
subsection. As I explained earlier, the subsection also provides
that an “alien [who] committed a serious nonpolitical
crime outside the United States before the alien arrived in the
United States” is ineligible for withholding of removal.
§ 1231(b)(3)(B)(iii) (emphasis added). “[W]hat constitutes a
‘serious nonpolitical crime’ is not susceptible of rigid definition.”
INS v. Aguirre-Aguirre, 526 U.S. 415, 429 (U.S. 1999)
(quoting Deportation Proceedings for Doherty, 13 Op. Off.
Legal Counsel 1, 23 (1989)). Still, the offenses that the BIA
has considered “serious nonpolitical crimes,” typically fall
well within the current definition of aggravated felony. Compare,
e.g., id. at 420-21 (battery, and destruction of public and
private property); Kenyeres v. Ashcroft, 538 U.S. 1301, 1306
(2003) (money-laundering for organized crime); to 8 U.S.C.
§ 1101(a)(43)(D) (defining “aggravated felony” as including
money laundering); § 1101(a)(43)(F) (defining “aggravated
felony” as including crimes of violence against persons or
physical property). Yet, “a ‘particularly serious crime’ . . . is
more serious than a ‘serious nonpolitical crime,’ ” Frentescu,
18 I. & N. Dec. at 247 (emphasis added). So, unless the statute
is hopelessly internally inconsistent, offenses less serious
than aggravated felonies cannot be “particularly serious
crime[s]”. See Padash v. INS, 358 F.3d 1161, 1170-71 (9th
Cir. 2004) (“We must make every effort not to interpret the
provision at issue in a manner that renders other provisions of
the same statute inconsistent . . . .” (internal quotation marks
and brackets omitted)).
14304 DELGADO v. MUKASEY
The short of the matter is that the majority’s reading of
§ 1231(b)(3)(B)(ii), like the BIA’s reading in N-A-M-, clashes
with one principle of statutory interpretation after another.
Applying those principles, there is nothing ambiguous about
the withholding exception for “particularly serious crimes.”
And because the application of a myriad of “the traditional
tools of statutory interpretation” to § 1231(b)(3)(B) shows
that “the intent of Congress” — that non-aggravated felonies
cannot qualify as “particularly serious crimes” for purposes of
withholding of removal — is clear from the face of the statute,
Sloan v. West, 140 F.3d 1255, 1261 (9th Cir. 1998), we
need not, contrary’s to the majority’s assertion, extend Chevron
deference to the BIA’s position in N-A-M- on this issue.
See Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n.9
(1984); see also Bell v. Reno, 218 F.3d 86, 94 (2d Cir. 2000)
(“An agency’s interpretation of a statutory provision is not
reasonable when it ignores an established rule of statutory
construction set forth by the Supreme Court.”).
The BIA’s opinion in N-A-M- does not warrant Chevron
deference for the additional reason that the Board itself did
not consider the opinion to reflect its reasonable interpretation
of an ambiguous statute. Rather, the Board concluded that its
position was compelled by a “plain reading of the Act.” See
N-A-M-, 24 I. & N. at 338. Because the Board was not
attempting to fill a gap left by Congress, it was not acting pursuant
to an agency’s general authority to resolve statutory
ambiguities, and its decision is therefore not entitled to deference.
See Peter Pan Bus Lines, Inc. v. Fed. Motor Carrier
Safety Admin., 471 F.3d 1350, 1354 (D.C. Cir. 2006)
(“[D]eference to an agency’s interpretation of a statute is not
appropriate when the agency wrongly believes that interpretation
is compelled by Congress.”) (internal quotations marks
and citations omitted).
2. Legislative History
On my understanding of the withholding exception for
“particularly serious crime[s],” the analysis should stop with
DELGADO v. MUKASEY 14305
the words of the statute, read common-sensically, in context,
and in light of established principles of statutory interpretation.
See Cardoza-Fonseca, 480 U.S. at 452-53 (Scalia, J.,
concurring) (“Where the language of [a] law[ ] is clear, we are
not free to replace it with an unenacted legislative intent;” nor
is an “exhaustive analys[is]” of a statute’s legislative history
appropriate “where the language of the enactment at issue is
clear.”); see also United States v. Ron Pair Enters., Inc., 489
U.S. 235, 240-41 (“[A]s long as the statutory scheme is coherent
and consistent, there generally is no need for a court to
inquire beyond the plain language of the statute.”). The
majority and N-A-M- nonetheless insist on reading the statute
through the prism of its history, rather than on its face — and
doing so, get the message of that history dead wrong.
As the majority accurately recounts, the “particularly serious
crimes” concept first appeared in the INA in 1980, in a
provision denying withholding of removal to an alien who,
“having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of the
United States.” Pub. L. No. 96-212, § 200, 94 Stat. 102
(1980). The majority does not recognize, however, that the
original “particularly serious crime” concept was adopted
from the Refugee Convention and Protocol’s non-refoulement
provision, not created out of whole cloth by Congress. As
such, the concept was intended, as its words suggest, as a
quite narrow exception to the responsibility not to send aliens
back to countries where they are likely to be persecuted on
protected grounds, for crimes not only “serious,” but “particularly
serious.”
The changes to § 243(a) here relevant all furthered Congress’s
intent to assure compliance with the Refugee Convention
and Protocol. First, in the Immigration Act of 1990
(“1990 Act”), soon after the first appearance of the “aggravated
felony” concept in the INA in 1988, See Pub. L. 100-
690, § 7342, 102 Stat. 4181 (1988), Congress created a categorical
bar to withholding of removal for aliens convicted of
14306 DELGADO v. MUKASEY
aggravated felonies by designating all such offenses per se
“particularly serious crimes.” See Pub. L. No. 101-649, 104
Stat. 4978, 5053. At the time, the crimes designated as “aggravated
felonies” were indeed quite serious, so designating
them as per se “particularly serious” was a way of assuring
uniformity and efficiency. See Pub. L. No. 100-690, § 7342,
102 Stat. 4181, 4469-4470 (1988 version of the INA)
(“aggravated felony” defined as: “murder; any drug trafficking
crime, . . . or any illicit trafficking in any firearms or
destructive devices”); also Pub. L. No. 101-649, § 501, 104
Stat. 4978, 5048 (Immigration Act of 1990) (money laundering
and crimes of violence for which the term of imprisonment
is at least five years added to list of “aggravated
felon[ies]”).
Next, in 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act (AEDPA), which “expanded the
definition of aggravated felony” to include a much greater
range of offenses, thus broadening the “particularly serious
crime” exception’s reach. See Choeum v. INS, 129 F.3d 29, 42
(1st Cir. 1997). Because AEDPA’s expanded definition of
aggravated felony “include[d] crimes that might be considered
less serious than those the Protocol intended to cover in
its exclusion clause,” Congress became concerned that application
of the categorical bar would result in removals that did
not conform to the Protocol. Id. As Senator Kennedy
explained,
[T]o declare an aggravated felon anyone convicted
of an offense involving imprisonment of one year,
. . . means that people with fairly minor offenses
would be ineligible to seek withholding of deportation,
[which] in many instances may violate the Refugee
Convention.
Mark-up on S. 1664 before the Senate Committee on the Judiciary,
104th Cong., 2d Sess. 60-61 (1996). To address this
concern, Congress included in AEDPA a provision allowing
DELGADO v. MUKASEY 14307
the Attorney General to override the 1990 Act’s categorical
designation of “aggravated felonies” as “particularly serious
crimes” if withholding of removal was “necessary to ensure
compliance with the 1967 United Nations Protocol Relating
to the Status of Refugees.” 8 U.S.C. § 1253(h) (current version
at § 1231(b) (1996)); Choeum, 129 F.3d at 43 (1st Cir.
1997).
The final step in the evolution of the withholding of
removal “particularly serious crime” exception was the enactment,
later in 1996, of IIRIRA, which gave us the current statutory
text of the INA and yet again expanded significantly the
“aggravated felony” concept. See Pub. L. No. 104-208, Div.
C, § 321, 110 Stat. 3009-546, 3009-627-3009-628. In particular,
for several offenses Congress reduced the minimum penalty
necessary for a conviction to qualify as an aggravated
felony from five years to one, see § 321 (a)(3), (10), (11).
This vast broadening of the “aggravated felony” category of
crimes had obvious implications for the usefulness of that category
as a stand-in for the “particularly serious crime” withholding
exception. It was in that context that Congress, in
IIRIRA, removed the 1990 Act’s broad categorical bar for all
aggravated felonies as well as AEDPA’s override provision,
substituting for both (1) the narrower categorical bar for
aggravated felonies “for which the alien has been sentenced
to an aggregate term of imprisonment of at least 5 years,” and
(2) the provision for “the Attorney General . . . [to] determin[
e] that, notwithstanding the length of sentence imposed,
[the] alien has been convicted of a particularly serious crime.”
The current statutory text thus is most sensibly understood as
still another attempt to implement the “particularly serious
crime” exception in a manner that conforms with the Protocol,
this time accounting for IIRIRA’s further broadening of the
aggravated felony category by both limiting the per se category
to a subset of aggravated felonies and limiting “particularly
serious crimes” to only aggravated felonies.
14308 DELGADO v. MUKASEY
Nothing in this history suggests a Congressional intent in
1996 to allow the Attorney General to designate as “particularly
serious crimes” offenses so minor that Congress did not
regard them as within the now broad category of “aggravated
felonies” used for other INA and immigration law purposes.3
Put another way, nothing in the sequence of enactments ending
in the current version of § 1231(b)(3)(B) indicates that
Congress intended to allow an alien to be removed to a country
where he probably will be persecuted on account of his
race, religion, nationality, membership in a particular social
group, or political opinion, because he committed a crime too
minor to be designated an “aggravated felony” under the INA
— too minor, for example, to disqualify him from other forms
of relief or to require that he be detained pending removal
proceedings. Instead, the current version of the statute recognizes
that even among the crimes designated as “aggravated
felonies,” many — perhaps most — now would not meet the
“particularly serious” exception of the Protocol and Convention,
and so leaves the Attorney General the task of sorting
out, on a case-by-case basis, which of the expanded class of
“aggravated felonies” are “particularly serious.”
In sum, the statutory text of § 1231(b)(3)(B), interpreted in
context and in light of established canons of statutory construction,
can only be read — and we have always read it —
as providing the Attorney General the authority to determine
that aggravated felonies with sentences of less than a year, but
not other crimes, are “particularly serious” for the purposes of
eligibility for withholding of removal. Nothing in the legislative
history indicates otherwise. I therefore cannot agree with
the majority’s conclusion that the Attorney General has free
3Among other things, the “aggravated felon[ ]” designation requires
mandatory detention, 8 U.S.C. § 1226(c)(1)(B), permits expedited removal
proceedings, 8 U.S.C. § 1228, and may disqualify the alien from benefits
such as cancellation of removal for permanent residents, 8 U.S.C.
§ 1229b(a), temporary protected status, 8 U.S.C. § 1254a(c)(2), and preand
post-hearing voluntary departure, 8 U.S.C. §§ 1229c(a)(1) & (b)(1).
DELGADO v. MUKASEY 14309
rein to call any crime “particularly serious” and so send an
alien to a country where he is likely to be persecuted.
C. 8 U.S.C. § 1158 (b)(2)(B)(ii) — Asylum
Nor can I agree with the majority’s reading of the quite different
asylum provision concerning “particularly serious
crimes.” Adopting, once again, the reasoning of the Seventh
Circuit in Ali, the majority concludes that the IJ was authorized
to decide on a case-specific basis that Delgado’s nonaggravated
felony convictions also qualified as particularly
serious crimes, rendering him ineligible for asylum under
§ 1158 (b)(2)(B). See 468 F.3d at 469 (stating that § 1158
(b)(2)(B) does not require the Attorney General to anticipate
his adjudication by regulation covering every single crime.).4
And this interpretation is, once again, in conflict with the
plain words, common sense reading of the statute.
Congress explicitly stated that the authority granted in 8
U.S.C. § 1158 (b)(2)(B)(ii) to “designate . . . offenses that will
be considered to be a [particularly serious crime]” is an
authority that may be exercised “by regulation.” The majority
maintains that the “by regulation” language pertains only to
categorical exceptions, and that the BIA can also proceed by
case-by-case adjudication.
The first problem with this reading of the statute is that it
is not what the statute says. The “by regulation” sentence is
general; it is not limited to categorical distinctions. And the
4As to this issue, neither the BIA’s decision in this case, nor its underlying
opinion reviewed in Ali are published opinions. No published BIA
opinion discusses whether § 1158 (b)(2)(B) permits the determination of
whether an offense is a “particularly serious crime” on a case-by-case
basis, rather than “by regulation.” We therefore do not owe the BIA Chevron
deference on this point. See Garcia-Quintero v. Gonzales, 455 F.3d
1006, 1012-14 (holding that unpublished BIA decisions are not entitled to
Chevron deference).
14310 DELGADO v. MUKASEY
statute does not provide for any other way of determining that
offenses are “particularly serious” for asylum purposes.
Moreover, the majority’s implication from silence does not
explain why Congress included the “by regulation” sentence.
Indeed, under the majority’s interpretation, the sentence is —
once more — entirely surplusage. “Absent express congressional
direction to the contrary, agencies are free to choose
. . . between rule making and adjudication.” Davis v. EPA,
348 F.3d 772, 785 (9th Cir. 2003) (parentheses and citations
omitted). The INA provides the Attorney General broad
power to “establish such regulations . . . as he deems necessary
for carrying out his authority under the provisions of this
chapter.” 8 U.S.C. § 1103(a) (current § 1103(g)(2); United
States v. Chen, 2 F.3d 330, 333 (9th Cir. 1993)). So there was
no need to include the “by regulation” sentence in
§ 1158(b)(2)(B) to authorize the BIA to issue regulations designating
categories of offenses as “particularly serious crime-
[s].” That authority existed already.
Similar language concerning the promulgation of regulations
as to particular issues has been understood to require
regulations as the mode of agency decisionmaking as to that
issue. See Davis, 348 F.3d at 785 (citing 42 U.S.C.
§ 7545(a)’s directive that “[t]he Administrator may by regulation
designate any fuel . . . [for registration pursuant to
§ 7545(b)])” as proof that “Congress knew how to impose
rulemaking requirements under the Clear Air Act when it
wanted to do so”) (emphasis added)). Moreover, Congress
could have specified that the Attorney General was authorized
to make “particularly serious crime” determinations via adjudication,
via regulation, or via both methods. As it chose to
only specify “by regulation,” § 1158 (b)(2)(B), the necessary
— and non-superfluous — implication is that it chose to
exclude the other options. See Barnhart, 537 U.S. at 168.
This implication is strengthened by the consideration that
no similar “by regulation” sentence appears in the withhold-
DELGADO v. MUKASEY 14311
ing of removal section governing “particularly serious
crimes,” a difference that should be accorded some significance.
See City of Chicago v. Envtl. Def. Fund, 511 U.S. 328,
338 (1994) (“It is generally presumed that Congress acts
intentionally and purposely when it includes particular language
in one section of a statute but omits it in another”)
(internal quotation marks omitted) (citing Keene Corp. v.
United States, 508 U.S. 200, 208 (1993)). Given the general,
broad statutory authorization Congress gave the Attorney
General to issue regulations, we could not reasonably surmise
that the Attorney General is precluded from issuing regulations
to implement the withholding of removal “particularly
serious crime” provisions by specifying categories of offenses
as particularly serious. The only sensible implication from
this difference between the two “particularly serious crime”
provisions, consequently, is that the Attorney General can, but
need not, proceed by regulation rather than case-by-case adjudication
with respect to withholding, but must proceed by regulation
with regard to the exception to eligibility for asylum.
This understanding of the textual differences makes perfect
sense in light of other differences between asylum and withholding
of removal. The Attorney General retains discretion
to decide on a case-by-case basis whether to grant asylum to
eligible applicants. Cardoza-Fonseca, 480 U.S. at 429, n.6.
As an individualized determination occurs down-the-line in
the asylum process, there was no reason to provide for such
a case-by-case process at the eligibility stage. In contrast,
withholding of removal is mandatory for eligible applicants,
so any individualized determination must occur at the eligibility
stage. There is also less need for case-by-case determination
with regard to asylum, because a denial of asylum to an
otherwise eligible alien does not directly raise the risk of noncompliance
with the Refugee Convention. Cf. L-S-, 22 I. & N.
Dec. at 652. Recognizing these differing concerns at issue in
the two contexts results in an interpretation of the procedural
requirements of § 1158(b)(2)(B) more faithful to Congress’
purposes than the one-size-fits-all approach adopted by the
14312 DELGADO v. MUKASEY
majority. Cf. L-S-, 22 I. & N. Dec. at 652 (interpreting
1158(b)(2)(B), and § 1231(b)(2)(B) in same way “annul[s] the
deliberate distinction made by Congress in the IIRIRA.”).
Further, on my reading, Congress has already designated
for withholding purposes the universe of offenses that can be
designated as “particularly serious crimes” — aggravated felonies,
as defined in the INA. See 8 U.S.C. § 1101(a)(43). As
the authority accorded the Attorney General with regard to
asylum is not so circumscribed, Congress could well have
preferred a formal process, subject to public comment and to
uniform application.
Finally, making such designations “by regulation” would
not require the Attorney General to “sift through each state’s
[penal] code” to “identify through regulation every single
‘particularly serious’ [crime].” Ali, 468 F.3d at 469, cited in
the majority opinion at 14284. As the majority recognizes, the
Attorney General could issue regulations designating specific
categories of non-aggravated felonies as particularly serious
crimes, just as Congress already has done by statute for aggravated
felonies. See, e.g., 8 U.S.C. § 1101(a)(43) (designating
certain categories of crimes as aggravated felonies). Alternatively,
just as the BIA already does through adjudication in
the case of aggravated felonies, the Attorney General could
specify, through rule-making, those factors which would render
a non-aggravated felony conviction a particularly serious
crime for this purpose. See Miguel-Miguel v. Gonzales, 500
F.3d 941, 949 (9th Cir. 2007) (holding that the Attorney General
has the authority to “create a strong presumption that
drug trafficking offenses are particularly serious crimes”).
In sum, Congress chose to require designation of nonaggravated
felonies as “particularly serious crimes” for asylum
purposes by formal promulgation of regulations, while
allowing case-by-case designation of “particularly serious
crimes” for withholding purposes, but only from among
aggravated felonies. Any other reading of the two statutes
DELGADO v. MUKASEY 14313
once again makes sameness out of difference and supposes
that Congress indulged in redundancy and indirection.
II. Jurisdiction
The majority accepts that we may decide the issues I have
already discussed, presumably because they are purely legal
issues. See 8 U.S.C. § 1252(a)(2)(D). But the majority concludes
that we lack jurisdiction to review the merits of the
BIA’s ultimate determination that Delgado’s DUI convictions
were “particularly serious crimes” under §§ 1158(b)(2)(A)(ii)
and 1231(b)(3)(B). This conclusion is premised on the view
that this determination falls under § 1252(a)(2)(B)(ii)’s preclusion
of judicial review of “decision[s] . . . the authority for
which is specified under this subsection to be in the discretion
of the Attorney General.”
In Matsuk v. INS, we did hold that the authority granted by
8 U.S.C. § 1231(b)(3)(B) to deny withholding of removal of
an alien “if the Attorney General decides that . . . [the] alien
has been convicted of a particularly serious crime” is discretionary
within the meaning of § 1252(a)(2)(B)(ii), and therefore
that the BIA’s denial of withholding on this basis is not
reviewable by this Court. See 247 F.3d at 1002; Spencer
Enterprises, Inc. v. United States, 345 F.3d 683, 690 (9th Cir.
2003). Because § 1158(b)(2)(A)(ii) also grants the Attorney
General the authority to deny asylum “if . . . the [applicant]
alien, ha[s] been convicted by final judgment of a particularly
serious crime,” the majority concludes that it is unreviewable
under § 1252(a)(2)(B)(ii) as well.
A. § 1252(a)(2)(B)(ii) — Asylum
The majority’s conclusion with regard to Delgado’s asylum
application is directly contrary to our case law. Section
1252(a)(2)(B)(ii) specifically exempts from its jurisdictionstripping
provision “the granting of relief under section 208(a)
[8 U.S.C. § 1158(a)]” — the subsection of the statute which
14314 DELGADO v. MUKASEY
authorizes aliens to apply for asylum. Morales v. Gonzales
held that “because decisions whether to grant asylum are
exempted from §1252(a)(2)(B)(ii)’s jurisdiction-stripping
mandate, we have jurisdiction to review the . . . denial of [the
petitioner’s] asylum application,” 478 F.3d at 979, even
where the reason for denial was that “the IJ determined” that
“her conviction[ ] . . . was [for] a particularly serious crime.”
Id. at 975.5 While asylum-related determinations do not fall
under this exemption when the INA specifically states otherwise,
see Lanza v. Ashcroft, 389 F.3d 917, 924 (9th Cir.
2004), Morales held that the precise determination Delgado
challenges here — whether he is precluded from asylum eligibility
because he committed a particularly serious crime —
does come under the exemption. 478 F.3d at 979 (“because
decisions whether to grant asylum are exempted from
§ 1252(a)(2)(B)(ii)’s jurisdiction-stripping mandate, we have
jurisdiction to review the IJ’s denial of Morales’ asylum
application.”). Morales then went on to hold differently on the
jurisdictional question “with regard to withholding of removal,”
on the ground that “if the decision to deny Morales that
form of relief was based on the Attorney General’s discretion
exercised pursuant to a statute granting him discretion to
make that decision, we would lack jurisdiction to review the
denial.” 478 F.3d at 979; see also id. at 975 (“we have jurisdiction
to review the IJ’s denial of Morales’ application for
asylum, pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii), and to
review the IJ’s denial of Morales’ application for withholding
of removal to the extent that Morales raises questions of law,
including mixed questions of law and fact, or constitutional
claims.”).
5Morales also questioned whether the “IJ’s determination that Morales
was statutorily ineligible for asylum” for having committed a particularly
serious crime qualifies as a discretionary decision under
§ 1252(a)(2)(B)(ii). 478 F.3d at 979 n.1. The majority should have
answered the question left open in Morales before assuming that the “particularly
serious crime” designation for asylum purposes is discretionary.
DELGADO v. MUKASEY 14315
Under Morales, then, §1252(a)(2)(B)(ii) poses no bar to our
review of the IJ’s determination that Delgado’s DUI conviction
constituted a “particularly serious crime” under
§ 1158(b)(2)(A)(ii), although it does bar review of the parallel
question with regard to withholding. The majority simply disregards
our case law — and yet again treats differences as
similarities — in ruling otherwise.
B. § 1231(b)(3)(B) — Withholding of Removal
I do agree with the majority that our decision in Matsuk is
controlling as to the reviewability of the IJ’s ultimate determination
that his DUI convictions constituted a “particularly
serious crime” under § 1231(b)(3)(B). As noted, Matsuk concluded
that this determination is discretionary and so unreviewable
under § 1252(a)(2)(B)(ii), and has been understood
as so holding by this Court. See Matsuk, 247 F.3d at 1002;
Morales, 478 F.3d at 979.
Matsuk’s conclusion on this specific point has, however,
recently been rejected by two circuits, in opinions I find persuasive.
See Alaka v. Atty General of the United States, 456
F.3d 88 (3rd Cir. 2006); Nethagani v. Mukasey, 532 F.3d 150
(2d Cir. 2008). Both the Second and Third Circuits concluded
that the fact that § 1231(b)(3)(B) gives the Attorney General
authority to “ ‘decide’ or ‘determine’ ” that an offense is a
particularly serious crime is “not, standing alone, sufficient to
‘specify’ discretion.” Alaka, 456 F.3d at 96-97. As the Third
Circuit observed in Alaka, “Congress knows how to ‘specify’
discretion and has done so repeatedly in other provisions of
the INA.” Id. at 97 and n.17 (citing “thirty-two . . . provisions
in the very subchapter of the INA referenced by 8 U.S.C.
§ 1252(a)(2)(B)(ii) that make explicit the grant of ‘discretion’
to the Attorney General or the Secretary of Homeland Security”).
It did not do so in § 1231(b)(3)(B). See id.; see also
Nethagani, 532 F.3d at 154-55.
Moreover, Matsuk is in tension with our own case law.
Matsuk stated that,
14316 DELGADO v. MUKASEY
The decision to deny withholding to Matsuk was
based upon the Attorney General’s discretion, pursuant
to Section 1231(b)(3)(B)(ii), to determine
whether an aggravated felony conviction resulting in
a sentence of less than 5 years is a particularly serious
crime. Thus Section 1252(a)(2)(B)(ii) divests
this court of jurisdiction to review this issue.
247 F.3d at 1002 (footnote and quotation marks omitted).
Matsuk did not, however, explain why this is so. Instead, it
simply cited the BIA’s decision in Matter of S-S-, 22 I. & N.
Dec. 458 (BIA 1999), which states that § 1231(b)(3)(B) “affords
the Attorney General discretion to exercise her judgment
as to whether the conviction is for a particularly serious
crime when an alien has been sentenced to less than 5 years
for the very same offense.” 22 I. & N. Dec. at 464 (cited in
Matsuk, 247 F.3d at 1002 n. 13).
As this Court recognized in Spencer Enterprises, however,
§ 1252(a)(2)(B)(ii) does not deprive us generally of jurisdiction
to review “discretionary decisions” of the Attorney General
under the INA. 345 F.3d at 689. Instead,
§ 1252(a)(2)(B)(ii) only restricts us from reviewing those
decisions “the authority for which is specified under the INA
to be discretionary.” Id. (emphasis in original). Under the test
this Court adopted in Spencer Enterprises, it would appear
that the determination of “particularly serious crime[s] under
§ 1231(b)(3)(B) is not a decision “the authority for which is
specified under the INA to be discretionary.”
§ 1252(a)(2)(B)(ii); 345 F.3d. at 689.
Spencer Enterprises, however, was decided after Matsuk
and characterized “the decision at issue in Matsuk — whether
to classify an alien’s past offense as a ‘particularly serious
crime’ under § 1231(b)(3)(B) — as one that “did fall under
this second category, because it is “a decision that is entirely
lacking in statutory guidelines.”6 Id. at 690. Given Matsuk,
6Spencer Enterprises’ actual holdings, however, concerned the applicability
of §1252(a)(2)(B)(ii). to a different provision of the INA,
§ 1153(b)(5). See 345 F.3d at 691.
DELGADO v. MUKASEY 14317
Spencer Enterprises, and Morales, I have no choice but to
accept the majority’s conclusion that we lack plenary jurisdiction
to review the Attorney General’s “particularly serious
crime” designations with regard to withholding. But for these
cases, I would hold, as have the Second and Third Circuits,
that a statutory provision that simply gives the Attorney General
authority to “determine” something is not one that is
“specified under the INA to be discretionary.”
§ 1252(a)(2)(B)(ii).
C. The REAL ID Act
Finally, at least some of the issues Delgado seeks to raise
on the merits regarding the IJ’s designation of his offenses as
a particularly serious crime are not ones that fall within the
jurisdiction-stripping provisions of §1252(a)(2)(B)(ii). Congress,
in the REAL ID Act, has made clear that
§ 1252(a)(2)(B)(ii) does not “preclude[ ] [our] review of . . .
questions of law raised upon a petition for review.”
§ 1252(a)(2)(D). In Morales, this Court considered, in light of
the REAL ID Act, how broadly to construe Matsuk’s holding
regarding the BIA’s unreviewable discretion to determine that
a specific offense is a particularly serious crime. See Morales,
478 F.3d at 979, citing Matsuk, 247 F.3d at 1002. We stated
that “this court has jurisdiction pursuant to 8 U.S.C.
§ 1252(a)(2)(D) . . . to consider legal questions related to the
determination of whether a crime is particularly serious.” 478
F.3d at 980 (parentheses and citation omitted).
In his petition for review, Delgado questions (1) whether,
as a matter of law, DUI convictions can constitute a “particularly
serious crime” under either § 1158(b)(2)(A)(ii) or
§ 1231(b)(3)(B), and (2) whether either of these statutes
should be applied retroactively to his convictions. See Ramadan
v. Gonzales, 479 F.3d 646, 648 (9th Cir. 2007) (issues of
statutory construction are per se questions of law). It may
well be that Delgado cannot prevail on either of these issues.
14318 DELGADO v. MUKASEY
Section 1252(a)(2)(B)(ii), however, does not deprive us of
jurisdiction to make this determination.
Conclusion
Because I conclude that we possess jurisdiction to review
the BIA’s determination that Delgado’s DUI convictions constituted
a “particularly serious crime” under § 1158(b)(2)(B)
and, moreover, that the BIA itself lacked discretionary authority
to make such a determination on a case-specific basis, I
would remand to the BIA for consideration of the merits of
his asylum application. Moreover, because I conclude that the
IJ and BIA erred as a matter of law in determining that Delgado’s
convictions rendered him ineligible for withholding of
removal under § 1231(b)(3)(B), I would remand for consideration
of the merits of this claim as well.
DELGADO v. MUKASEY 14319


How can you find a qualified San Diego California DUI Lawyer ?



Various types of lawyers handle San Diego drunk driving cases, including public defenders, general practitioners, criminal defense lawyers, and DUI Specialist attorneys.



A San Diego County public defender is a California attorney provided at little or no cost to provide defense services to people who financially are unable to hire a private San Diego lawyer. Most San Diego County Districts generally do not offer public defenders services unless you are unemployed, significantly under-employed and/or have no assets.



Some excellent questions to begin asking when searching for a California DUI lawyer are:



What are his or her California DUI attorney's qualifications?



Is he or she a Specialist member of the California DUI Lawyers Association?



Is he or she a member of the National College for DUI Defense?



Whether or not you ultimately end up hiring a California DUI Specialist attorney, it is a smart idea to speak to a California DUI Specialist lawyer in this highly complex field.



You can read more -Why use San Diego County's Specialist in DUI and DMV Law http://www.sandiegoduilawyer.com/why.html .


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San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf . The California criminal defense lawyers who attended informed the President of the California DUI Lawyers Association that San Diego California DUI criminal defense attorney Rick Mueller was excellent. Rick has been asked to speak again - at the California DUI Lawyers Association (CDLA) DUI seminar.


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California DUI Attorney

San Diego DUI Help

San Diego DUI criminal defense lawyers at www.SanDiegoDUIlawyer.com report the announcement for the 2008 FALL MIXER IN SAN DIEGO, THURSDAY, OCTOBER 9

The Criminal Law Society of the University of San Diego School of Law and the Section cordially invite you to our Fall Attorney and Student Mixer, Thursday, October 9, 6 p.m. - 9 p.m. at the Faculty Reading Room, Warren Hall, at the University of San Diego. The event is designed for students to meet attorneys, judges and faculty working in San Diego's criminal law community and for the leaders in our community to continue to learn more about what we are all about.

Please join us to continue to foster new and lasting relationships in the community and meet our new club officers and members. Fine refreshments and cheese and hors d'oeuvres will be served. R.S.V.P. to usdcls@gmail.com

San Diego DUI criminal defense lawyers at www.SanDiegoDUIlawyer.com recommend this event.

California Contra Costa County Supervisors introduced a new law Tuesday designed to hold parents responsible if their children host a party at their house that involves underage drinking, especially if it leads to a California DUI / drunk driving arrest.

Under the proposed Social Host Ordinance, parents in unincorporated areas of the county who host a party or fail to prevent their children from hosting a party where minors are drinking could be charged with a misdemeanor, jailed for up to six months and fined up to $1,000, California DUI / drunk driving lawyers.

Underage drinking is a growing "epidemic" among teenagers.

The increased penalties will help get parents' attention.

The Contra Costa County Sheriff's Association said the proposed ordinance was a fantastic California DUI / drunk driving law enforcement tool.

With the new ordinance, sheriff's deputies would be able to go directly to the property owner instead of trying to chase down hordes of intoxicated teenagers.

Emily Justice, who spoke on behalf of several groups working to reduce underage drinking in the county, said it was a common misperception that teens were safer if they drank at home. Even supervised drinking can lead to alcohol poisoning, sexual assault and drunken driving, California DUI / drunk driving attorneys said.

Mary Lopez, with the Contra Costa County Alcohol and Other Drugs Advisory Board, said the stricter consequences imposed by the ordinance could also help "educate the public about the dangers of underage drinking."

Bethel Island resident Beth Carver said she has recently discovered "the wildness" of teen parties.

She described large groups of teenagers parking their cars in her neighborhood and "walking all over with their beer and their cigarette butts."

"They would take over the neighborhood," Carver said, and the parties would eventually result in "a bunch of drunk kids running around and throwing stuff and trashing the neighborhood."

Many of the parents reportedly do not seem to care that their children are drinking and they allegedly intimidate other parents who try to put a stop to the drinking.

There were no speakers at the meeting Tuesday who opposed the new law.

If it passes, the ordinance will apply only to unincorporated areas of the county, although several cities, including Concord, Orinda, Moraga, Pleasant Hill, Clayton, San Ramon and Danville, already have similar ordinances in place.

Marin, Santa Clara and San Diego counties also have similar social host ordinances, according to Piepho according to California DUI / drunk driving lawyers at www.sandiegoduilawyer.com.

San Diego County's Sheriff's Department, Lemon Grove Station, conducted a San Diego DUI /Drunk Driving / Driver's License Checkpoint at the 6900 block of East Broadway, in the City of Lemon Grove.

The San Diego DUI /Drunk Driving Checkpoint took place between 7:30 P.M. and 2:00 A.M., four fridays ago. A total of 1160 vehicles passed through the San Diego DUI /Drunk Driving checkpoint with 1135 vehicles contacted. The results of this San Diego DUI /Drunk Driving operation include the following:

125 Vehicles sent into secondary inspection.
78 Citations issued for various violations.
11 Vehicles stored for various violations.
8 San Diego DUI /Drunk Driving Field Sobriety Tests given.
3 Individuals arrested for San Diego DUI /Drunk Driving Driving Under the Influence (DUI).
1 Individual arrested for a Felony Warrant (Out of State).
8 Unlicensed Drivers Cited.

Funding for the San Diego DUI /Drunk Driving Checkpoint was provided by a San Diego DUI /Drunk Driving grant from the California Office of Traffic Safety, according to San Diego DUI /Drunk Driving attorneys.

San Diego California DUI Criminal Defense Lawyers:

San Diego DUI Lawyer

San Diego DUI

California DUI Attorney

San Diego DUI Help

http://www.google.com


http://www.sandiegoduihelp.com/duiblog/index.html

San Diego California DUI / drunk driving criminal defense lawyers at www.SanDiegoDUI.com report the penalties for a California DUI can be very serious including jail time, substantial fines, probation, court-imposed alcohol programs, higher car insurance premiums and the loss of employment opportunities.

The Range of Possible Penalties for California DUI Convictions are as Follows:
1st Offense, No prior DUI Offense
License Suspension: 6 Months
Probation: 1-5 Years
Mandatory Alcohol Classes: 3 to 9 Months
Fines: $390.00 to $1,000.00
Possible Jail: 0 to 6 Months
Car Insurance: Substantial Rise or Termination
Second Offense within 10 years
License Suspension: 2 Years
Probation: 1-5 Years
Mandatory Alcohol Classes: 18 Months
Fines: $390.00 to $1,000.00
Possible Jail: 96 hours to 1 Year
Car Insurance: Substantial Rise or Termination
Third Offense within 10 years
License Suspension: 3 Years
Probation: 1-5 Years
Mandatory Alcohol Classes: 18 Months (if offender hasn't completed one)
Fines: $390.00 to $1,000.00
Possible Jail: 4 Months to 1 Year
Car Insurance: Substantial Rise or Termination
Fourth Offense within 10 years
Can be filed as a felony
License Suspension: 4 Years
Probation: 1-5 Years (or state prison)
Mandatory Alcohol Classes: 18 Months (if offender hasn't completed one)
Proposed Fines: $390.00 to $1,000.00
Possible Jail: 6 Months to 3 Years
Car Insurance: Possible Drastic Rise or Termination

California DUI Penalties:
California courts and district attorney in California instituted a policy of higher penalties on second and third offense DUIs. Second DUI offenders can get 30 days jail, 45 if they are still on probation from the first. Third DUI offenders get 120 days jail (the statutory minimum), but 180 days jail if they are still on probation for either of the priors.

NOTE: Any of these penalties may be increased for the following sentence enhancements:

Refusal to submit to Chemical Tests
Probation violations for prior DUIs
Accidents causing injury
BAC over .15
Speeding - 30 mph over speed limit on freeway - 20 mph over speed limit on other roads
Passenger under the age of 14 years old in the car.
License restriction may be implemented in addition to the suspensions

That's why it's important to contact San Diego California DUI / drunk driving criminal defense lawyers at www.SanDiegoDUI.com .

San Diego California DUI criminal defense lawyers at www.sandiegoduilawyer.com report that it's dangerous for teens to drink and use drugs, according to a survey of western Nevada County high school students taken after a DUI presentation.

Students took the survey after attending the Real DUI Court Trial offered in the spring at Nevada Union and Bear River high schools through the Nevada County Superior Court.

"It's challenging to find a balance between keeping the court trial real and keeping the students engaged, because a real court trial is not as entertaining as the legal dramas they watch on television," said Tonya Clark, director of Alternative Court Programs at the courthouse.

After seeing a mock accident caused by a drunken driver and attending a real court hearing for people charged with driving under the influence, 86 percent of students polled said drinking and drug use by teens is dangerous.

Another 69 percent agreed or strongly agreed that they would refuse to get into a vehicle with a driver who is under the influence.

Most students polled also agreed that drinking and driving is a serious crime for teens. Just over half agreed the program helps teens appreciate the law and our justice system.

"It was a collaborative effort between the Nevada County District Attorney's Office, the Nevada County Public Defender's Office, the Nevada County Sheriff's Office, the Grass Valley Police Department, Community Recovery Resources and our local high schools," Clark said.

The survey, conducted by Philliber Research Associates under a contract with the Administrative Office of the Courts, cost $10,000 and was paid for with a grant from the California Office of Traffic Safety. www.sandiegodui.com

San Diego DUI criminal defense lawyers say in California, a drinking under the influence charge is a serious offense with extremely complex consequences. It involves drivers, victims, and the general population. It can lead to losing your license, going to jail, lengthening of program requirements, fines and more. At that time it would be difficult to decide what kind of help you need. It would be great to consult San Diego DUI lawyers who know the laws and your rights. There are many law firms in California that specialize in drunk driving defense exclusively. But always prefer those lawyers who are certified by the Board - a group of specialists led the National College for DUI Defense. Without the help of a skilled San Diego DUI lawyer it is difficult to dismiss the charge of a San Diego DUI offense.

San Diego drunk driving and DUI are common words in our every day speech. It tells us something about the extent and familiarity of this growing problem in San Diego California. In the USA, nearly half a million people are injured in DUI-related highway crashes each year. So to hire a good San Diego DUI Lawyer is absolutely the best decision and ought to be your first move. Your San Diego DUI lawyer should be well acquainted with all the intricacies and nuances involved with San Diego drunk driving cases. The number of San Diego drunk driving cases has steadily increased since the beginning of the 1970s. The public offender may face the immediate loss of his or her driver's license, vehicle impoundment, fines, house arrest, local incarceration, extensive breath alcohol tests, etc. for San Diego drunk driving charges.

If you are facing a San Diego DUI dilemma then hire a competent San Diego DUI lawyer to guide you through the drunk driving magisterial proceedings. There are associations, guides, and registries that offer a wealth of good San Diego DUI lawyers in California. These proficient and exceptional San Diego DUI criminal defense lawyers are ready to lend their valuable services to the needy DUI accused. A San Diego DUI charge is frustrating and can result in serious consequences. You should contact expert San Diego DUI lawyers at www.sandiegoduilawyer.com to deal with the court and DMV proceedings in San Diego, California.

Free Evaluation Today by San Diego DUI Lawyer

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



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



At an 8th seminar, San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California: http://www.cacj.org/Events/forms/DUI%20Brochure%20Final.pdf . The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent. Rick has been asked to speak again - at the California DUI Lawyers Association (CDLA) DUI seminar.



San Diego DUI Lawyer Rick Mueller is known as the "DMV Guru" by the Bar Association.




Specially recognized as a Contributor to the California Drunk Driving Law book, he is now the San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's bible for DUI defense, authored by Ed Kuwatch, Paul Burglin and Barry Simons, the book features some of San Diego DUI attorney Rick Mueller's hard work.



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



San Diego DUI Attorney Rick Mueller speaks at Strategies in Handling DUI Cases seminars, at the DUI & Drug Defense seminar at the San Diego Bar Building, at the North San Diego County Bar Association's Drunk Driving - DMV seminars, and at the Public Defender's Office DMV - DUI Training seminars. His DMV - DUI work is also featured in the Association of California Deuce Defenders' materials. Since 1983, DUI Lawyer Rick Mueller has actively defended these cases. San Diego DUI Attorney Rick Mueller is in Good Standing with the State Bar (#114305).



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* COMPLETE FREE SAN DIEGO DUI LAWYER "EVALUATION FORM" href="http://www.sandiegodui.com">http://www.sandiegodui.com/survey.html



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San Diego DUI criminal defense lawyers report that on 9/30/08 P. v. Piper CA1/4 was decided. www.sandiegoduilawyer.com/blog

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DONALD SEAN PIPER,
Defendant and Appellant.
A117164
(Contra Costa County Super. Ct.
Nos. 02-288050-8, 02-290066-0)
Donald Sean Piper appeals from a judgment imposed upon his plea of no contest
to driving under the influence of alcohol (DUI) with prior convictions (Veh. Code,1
§§ 23152, subd. (a), 23550).) He contends that application of the amended version of
section 23550 violates the ex post facto clause of the federal Constitution. We affirm.
I. FACTUAL BACKGROUND
A criminal complaint in case No. 02-288050-8 was filed on September 2, 2005,
charging defendant with two counts of DUI with three prior convictions, and alleging that
the underlying DUI was committed within seven years of the prior convictions within the
meaning of section 23550. The complaint alleged that the current DUI was committed on
June 28, 2005, while the three priors were committed on July 8, 1996, July 22, 1996, and
March 3, 1997. On January 10, 2006, the complaint was amended to allege that the new
1 Unless otherwise indicated, all further statutory references are to the Vehicle
Code.
2
DUI was committed within 10 years of the prior convictions.2 The trial court dismissed
this complaint, after striking the prior conviction allegations on the ground that applying
section 23550, as amended, violated ex post facto principles.
On February 2, 2006, a new complaint, case No. 02-290066-0 was filed alleging
the same charges as in the prior complaint. This complaint alleged that defendant
committed the underlying DUI within 10 years of the prior convictions. On April 11,
2006, the court granted defendant’s demurrer and dismissed the complaint. The district
attorney subsequently moved to reinstate the complaint pursuant to Penal Code section
871.5. The trial court granted the motion.
On January 11, 2007, pursuant to a negotiated disposition, defendant pled no
contest to one count of DUI with prior convictions. The trial court thereafter granted a
certificate of probable cause.
II. DISCUSSION
Defendant contends that application of amended section 23550 to his current
offense violates the federal constitutional bar against ex post facto laws. He argues that
his three prior convictions were more than seven years old at the time the amended
statute went into effect on January 1, 2005. The Courts of Appeal have consistently
rejected this argument.
In People v. Forrester (2007) 156 Cal.App.4th 1021, 1023, the court addressed
section 23540 which provides for an enhanced punishment if a defendant commits
another DUI within 10 years of a current offense. The court rejected the defendant’s
claim that the new statute violated ex post facto principles, relying on well-settled law
2 Effective January 1, 2005, the Legislature amended section 23550 to extend the
“ ‘look-back’ ” period pertaining to prior convictions from seven to 10 years. (People v.
Treadway (2008) 163 Cal.App.4th 689, 692 (Treadway).) Section 23550 thus provides,
in relevant part: “(a) If a person is convicted of a violation of Section 23152 and the
offense occurred within 10 years of three or more separate violations of Section 23103, as
specified in Section 23103.5, or Section 23152 or 23153, or any combination thereof, that
resulted in convictions, that person shall be punished by imprisonment in the state prison,
or in a county jail for not less than 180 days nor more than one year, and by a fine of not
less than . . . ($390) nor more than . . . ($1,000). . . .”
3
that “the sentence imposed upon a habitual offender is not an additional punishment for
the earlier crime, but a punishment for the later crime . . . .” (Forrester, at p. 1024.)
“ ‘There is no constitutional bar preventing application of [sections 23540, 23546, 23550]
to later offenses solely because the prior conviction which serves as a basis for
enhancement was committed before the habitual offender statute was enacted.’ ” (Ibid.,
quoting People v. Sweet (1989) 207 Cal.App.3d 78, 83.)
The Forrester court distinguished Stogner v. California (2003) 539 U.S. 607 upon
which defendant relies. In Stogner, the court held that a California statute violated the
constitutional prohibition against ex post facto laws because it permitted the prosecution
of certain child sexual abuse crimes when the statute of limitations for those crimes had
already expired. (Id. at p. 609.) “Unlike [the defendant in Stogner, defendant here] has
not been charged with a crime for which the statute of limitations has run. He has not
been deprived of a ‘vested defense’ because the statute extending the maximum period of
prior offenses was enacted before the current offense. [Citation.]” (Forrester, supra, 156
Cal.App.4th at p. 1025.)
Forrester is dispositive of defendant’s claim. Here, as well, defendant’s current
offense occurred on June 28, 2005, after the effective date of amended section 23550.
His offense was subject to the law in effect at the time of the commission of the offense.
(Forrester, supra, 156 Cal.App.4th at pp. 1024-1025; see also Treadway, supra, 163
Cal.App.4th at p. 698 [no ex post facto violation as defendant committed new offense in
2005 after the 10-year period of section 23550 came into effect].)
4
III. DISPOSITION
The judgment is affirmed.

www.sandiegodrunkdrivingattorney.net/articles

San Diego California attorney announcement re: Ignition Interlock Bill www.SanDiegoDrunkDrivingAttorney.net

SB1388 (Operative July 1, 2009)

It becomes a new and separate misdemeanor crime (6mo/$5K) if a person willfully fails to install the IID within 30 days of being ordered to do so.

If a person applies for an exemption because they don’t own or have access to a vehicle and thereafter violates that exemption, this is also a new and separate misdemeanor crime (6mo/$5K).

DMV appears to be ordered to set up a statutory scheme to: a) inform the person of the requirement, b) accept notification from the installer, c) set a fee and, d) notify the courts of any failure to comply.



This is all done in amendments to 14601.2, 14601.4, 14601.5 and newly added VC23573.



The other item was SB1190:



Existing law authorizes the courts to impose IID requirements especially where a persons BAC is .20 or higher and where there is a refusal. SB1190 lowers the .20 to .15.



Secondly, SB1190 authorizes DMV to undertake a study as to the effectiveness of the IID in reducing recidivism, with their findings due prior to 1/1/2013.


Full text below:

BILL NUMBER: SB 1190 CHAPTERED
BILL TEXT

CHAPTER 392
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2008
APPROVED BY GOVERNOR SEPTEMBER 27, 2008
PASSED THE SENATE AUGUST 19, 2008
PASSED THE ASSEMBLY AUGUST 13, 2008
AMENDED IN ASSEMBLY AUGUST 8, 2008
AMENDED IN SENATE APRIL 28, 2008
AMENDED IN SENATE MARCH 24, 2008

INTRODUCED BY Senator Oropeza

FEBRUARY 12, 2008

An act to amend Section 23575 of, and to add Section 23575.1 to,
the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


SB 1190, Oropeza. Certified ignition interlock devices.
(1) Existing law authorizes a court to require that a person who
is convicted of a first offense violation of one of 2 specified
driving while under the influence (DUI) offenses install a certified
ignition interlock device (IID) on any vehicle that the person owns
or operates and prohibits that person from operating a motor vehicle
unless that vehicle is equipped with a functioning, certified (IID).
Existing law also requires that the court give heightened
consideration to applying this sanction to a first offense violator
with a 0.20% or more, by weight, of alcohol in his or her blood at
arrest, or with 2 or more prior moving traffic violations, or to
persons who refused the chemical tests at arrest.
This bill would lower this percentage to 0.15% or more, by weight,
of alcohol in a person's blood at the time of his or her arrest. By
changing the definition of a crime, the bill would impose a
state-mandated local program.
The bill would also authorize the Department of Motor Vehicles to
undertake a specified study and, if the department exercises that
authority, to report its findings of that study to the Legislature on
or before January 1, 2013, regarding the overall effectiveness of
the use of IIDs to reduce the recidivism rate of first-time DUI
violators.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 23575 of the Vehicle Code is amended to read:
23575. (a) (1) In addition to any other provisions of law, the
court may require that a person convicted of a first offense
violation of Section 23152 or 23153 install a certified ignition
interlock device on any vehicle that the person owns or operates and
prohibit that person from operating a motor vehicle unless that
vehicle is equipped with a functioning, certified ignition interlock
device. The court shall give heightened consideration to applying
this sanction to a first offense violator with 0.15 percent or more,
by weight, of alcohol in his or her blood at arrest, or with two or
more prior moving traffic violations, or to persons who refused the
chemical tests at arrest. If the court orders the ignition interlock
device restriction, the term shall be determined by the court for a
period not to exceed three years from the date of conviction. The
court shall notify the Department of Motor Vehicles, as specified in
subdivision (a) of Section 1803, of the terms of the restrictions in
accordance with subdivision (a) of Section 1804. The Department of
Motor Vehicles shall place the restriction in the person's records in
the Department of Motor Vehicles.
(2) The court shall require a person convicted of a violation of
Section 14601.2 to install an ignition interlock device on any
vehicle that the person owns or operates and prohibit the person from
operating a motor vehicle unless the vehicle is equipped with a
functioning, certified ignition interlock device. The term of the
restriction shall be determined by the court for a period not to
exceed three years from the date of conviction. The court shall
notify the Department of Motor Vehicles, as specified in subdivision
(a) of Section 1803, of the terms of the restrictions in accordance
with subdivision (a) of Section 1804. The Department of Motor
Vehicles shall place the restriction in the person's records in the
Department of Motor Vehicles.
(b) The court shall include on the abstract of conviction or
violation submitted to the Department of Motor Vehicles under Section
1803 or 1816, the requirement and term for the use of a certified
ignition interlock device. The records of the department shall
reflect mandatory use of the device for the term ordered by the
court.
(c) The court shall advise the person that installation of an
ignition interlock device on a vehicle does not allow the person to
drive without a valid driver's license.
(d) A person whose driving privilege is restricted by the court
pursuant to this section shall arrange for each vehicle with an
ignition interlock device to be serviced by the installer at least
once every 60 days in order for the installer to recalibrate and
monitor the operation of the device. The installer shall notify the
court if the device is removed or indicates that the person has
attempted to remove, bypass, or tamper with the device, or if the
person fails three or more times to comply with a requirement for the
maintenance or calibration of the ignition interlock device. There
is no obligation for the installer to notify the court if the person
has complied with all of the requirements of this article.
(e) The court shall monitor the installation and maintenance of an
ignition interlock device restriction ordered pursuant to
subdivision (a) or (). If a person fails to comply with the court
order, the court shall give notice of the fact to the department
pursuant to Section 40509.1.
(f) (1) Pursuant to Section 13352, if a person is convicted of a
violation of Section 23152 or 23153, and the offense occurred within
10 years of one or more separate violations of Section 23152 or 23153
that resulted in a conviction, the person may apply to the
Department of Motor Vehicles for a restricted driver's license
pursuant to Section 13352 that prohibits the person from operating a
motor vehicle unless that vehicle is equipped with a functioning
ignition interlock device, certified pursuant to Section 13386. The
restriction shall remain in effect for at least the remaining period
of the original suspension or revocation and until all reinstatement
requirements in Section 13352 are met.
(2) Pursuant to subdivision (g), the Department of Motor Vehicles
shall immediately terminate the restriction issued pursuant to
Section 13352 and shall immediately suspend or revoke the privilege
to operate a motor vehicle of a person who attempts to remove,
bypass, or tamper with the device, who has the device removed prior
to the termination date of the restriction, or who fails three or
more times to comply with any requirement for the maintenance or
calibration of the ignition interlock device ordered pursuant to
Section 13352. The privilege shall remain suspended or revoked for
the remaining period of the originating suspension or revocation and
until all reinstatement requirements in Section 13352 are met.
(g) A person whose driving privilege is restricted by the
Department of Motor Vehicles pursuant to Section 13352 shall arrange
for each vehicle with an ignition interlock device to be serviced by
the installer at least once every 60 days in order for the installer
to recalibrate the device and monitor the operation of the device.
The installer shall notify the Department of Motor Vehicles if the
device is removed or indicates that the person has attempted to
remove, bypass, or tamper with the device, or if the person fails
three or more times to comply with any requirement for the
maintenance or calibration of the ignition interlock device. There is
no obligation on the part of the installer to notify the department
or the court if the person has complied with all of the requirements
of this section.
(h) Nothing in this section permits a person to drive without a
valid driver's license.
(i) The Department of Motor Vehicles shall include information
along with the order of suspension or revocation for repeat offenders
informing them that after a specified period of suspension or
revocation has been completed, the person may either install an
ignition interlock device on any vehicle that the person owns or
operates or remain with a suspended or revoked driver's license.
(j) Pursuant to this section, an out-of-state resident who
otherwise would qualify for an ignition interlock device restricted
license in California shall be prohibited from operating a motor
vehicle in California unless that vehicle is equipped with a
functioning ignition interlock device. An ignition interlock device
is not required to be installed on any vehicle owned by the defendant
that is not driven in California.
(k) If a person has a medical problem that does not permit the
person to breathe with sufficient strength to activate the device,
then that person shall only have the suspension option.
() This section does not restrict a court from requiring
installation of an ignition interlock device and prohibiting
operation of a motor vehicle unless that vehicle is equipped with a
functioning, certified ignition interlock device for a person to whom
subdivision (a) or (b) does not apply. The term of the restriction
shall be determined by the court for a period not to exceed three
years from the date of conviction. The court shall notify the
Department of Motor Vehicles, as specified in subdivision (a) of
Section 1803, of the terms of the restrictions in accordance with
subdivision (a) of Section 1804. The Department of Motor Vehicles
shall place the restriction in the person's records in the Department
of Motor Vehicles.
(m) For the purposes of this section, "vehicle" does not include a
motorcycle until the state certifies an ignition interlock device
that can be installed on a motorcycle. Any person subject to an
ignition interlock device restriction shall not operate a motorcycle
for the duration of the ignition interlock device restriction period.

(n) For the purposes of this section, "owned" means solely owned
or owned in conjunction with another person or legal entity. For
purposes of this section, "operates" includes operating a vehicle
that is not owned by the person subject to this section.
(o) For the purposes of this section, "bypass" includes, but is
not limited to, either of the following:
(1) A combination of failing or not taking the ignition interlock
device rolling retest three consecutive times.
(2) An incidence of failing or not taking the ignition interlock
device rolling retest, when not followed by an incidence of passing
the ignition interlock rolling retest prior to turning off the
vehicle's engine.
SEC. 2. Section 23575.1 is added to the Vehicle Code, to read:
23575.1. The department may undertake a study and report its
findings of that study to the Legislature on or before January 1,
2013, regarding the overall effectiveness of the use of ignition
interlock devices (IID) to reduce the recidivism rate of first-time
violators of Section 23152 or 23153. If the department exercises this
authority, the study shall focus on those drivers who actually have
an IID installed in their vehicles rather than on those who are
subject to a judicial order to have an IID installed.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.



BILL NUMBER: SB 1388 CHAPTERED
BILL TEXT

CHAPTER 404
FILED WITH SECRETARY OF STATE SEPTEMBER 27, 2008
APPROVED BY GOVERNOR SEPTEMBER 27, 2008
PASSED THE SENATE AUGUST 19, 2008
PASSED THE ASSEMBLY AUGUST 12, 2008
AMENDED IN ASSEMBLY JUNE 26, 2008
AMENDED IN SENATE MAY 23, 2008
AMENDED IN SENATE APRIL 30, 2008
AMENDED IN SENATE MARCH 24, 2008

INTRODUCED BY Senators Torlakson, Correa, and Maldonado
(Coauthor: Senator Dutton)

FEBRUARY 21, 2008

An act to amend Sections 14601.2, 14601.4, and 14601.5 of, and to
add Section 23573 to, the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


SB 1388, Torlakson. Vehicles: DUI: ignition interlock.
(1) Existing law makes it unlawful to operate a motor vehicle
while under the influence of alcohol or drugs, or both, or when the
driver has a specified percent, by weight, of alcohol in his or her
blood, or if the driver is addicted to the use of any drug. A
separate provision makes it unlawful to engage in this conduct and to
drive in a certain unlawful manner if that conduct causes bodily
injury to a person other than the driver.
A person is prohibited from driving a vehicle when his or her
driver's license has been suspended or revoked for violating
specified provisions relating to DUI. Existing law requires a court
to require a person convicted of specified offenses to install a
certified ignition interlock device on a vehicle that person owns or
operates. The Department of Motor Vehicles is prohibited from
reinstating the privilege to operate a vehicle until the department
receives specified proof that the ignition interlock device has been
installed as ordered.
This bill would additionally require that a person immediately
install a certified ignition interlock device on all vehicles he or
she owns or operates for a period of one to 3 years when he or she
has been convicted of violating specified DUI provisions and driving
a motor vehicle when his or her license has been suspended or revoked
as a result of a DUI-related conviction. The number of years the
ignition interlock device would be required to be installed would be
based upon the number of prior convictions and the length of time
between convictions as prescribed.
The bill would also set up a statutory scheme under which the
department would, with regard to the installation of a certified
ignition interlock device described above, inform the person of the
ignition interlock device installation requirements established under
the bill, accept notification from the ignition interlock device
installer of attempts to remove, bypass, or tamper with the device or
if the person fails 3 or more times to comply with the maintenance
requirements, monitor the installation and maintenance of the
ignition interlock device, determine a fee sufficient to cover
administrative costs, including startup costs, to be paid by the
person, and keep specified records. The department would also be
required to notify the court of the failure of a person, required to
install an ignition interlock device pursuant to this section, to
show proof of installation within 30 days of being informed of these
requirements. The bill would provide that a person required to
install an ignition interlock device under this provision who
willfully fails to install an ignition interlock device within 30
days of the notification is guilty of a misdemeanor and would be
punished by not more than 6 months imprisonment in the county jail or
by a fine of not more than $5,000, or both.
A person who does not own or does not have access to a vehicle
and who complies with all of the prescribed requirements, would be
exempt from the ignition interlock device installation requirements.
A violation of the terms of the exemption would be a misdemeanor
punishable by not more than 6 months imprisonment in the county jail
or by a fine of not more than $5,000, or both.
These provisions would become operative on July 1, 2009.
These requirements would be in addition to existing law.
(2) Because it is a crime to operate a vehicle that is not
equipped with a functioning, certified ignition interlock device by a
person whose driving privilege is so restricted and because failure
to install the ignition interlock device within 30 days after
notification by the department would be a misdemeanor, the bill would
impose a state-mandated local program, by expanding the scope of an
existing crime and creating a new crime.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 14601.2 of the Vehicle Code is amended to read:

14601.2. (a) A person shall not drive a motor vehicle at any time
when that person's driving privilege is suspended or revoked for a
conviction of a violation of Section 23152 or 23153 if the person so
driving has knowledge of the suspension or revocation.
(b) Except in full compliance with the restriction, a person shall
not drive a motor vehicle at any time when that person's driving
privilege is restricted if the person so driving has knowledge of the
restriction.
(c) Knowledge of the suspension or revocation of the driving
privilege shall be conclusively presumed if mailed notice has been
given by the department to the person pursuant to Section 13106.
Knowledge of the restriction of the driving privilege shall be
presumed if notice has been given by the court to the person. The
presumption established by this subdivision is a presumption
affecting the burden of proof.
(d) A person convicted of a violation of this section shall be
punished as follows:
(1) Upon a first conviction, by imprisonment in the county jail
for not less than 10 days or more than six months and by a fine of
not less than three hundred dollars ($300) or more than one thousand
dollars ($1,000), unless the person has been designated a habitual
traffic offender under subdivision (b) of Section 23546, subdivision
(b) of Section 23550, or subdivision (d) of Section 23550.5, in which
case the person, in addition, shall be sentenced as provided in
paragraph (3) of subdivision (e) of Section 14601.3.
(2) If the offense occurred within five years of a prior offense
that resulted in a conviction of a violation of this section or
Section 14601, 14601.1, or 14601.5, by imprisonment in the county
jail for not less than 30 days or more than one year and by a fine of
not less than five hundred dollars ($500) or more than two thousand
dollars ($2,000), unless the person has been designated a habitual
traffic offender under subdivision (b) of Section 23546, subdivision
(b) of Section 23550, or subdivision (d) of Section 23550.5, in which
case the person, in addition, shall be sentenced as provided in
paragraph (3) of subdivision (e) of Section 14601.3.
(e) If a person is convicted of a first offense under this section
and is granted probation, the court shall impose as a condition of
probation that the person be confined in the county jail for at least
10 days.
(f) If the offense occurred within five years of a prior offense
that resulted in a conviction of a violation of this section or
Section 14601, 14601.1, or 14601.5 and is granted probation, the
court shall impose as a condition of probation that the person be
confined in the county jail for at least 30 days.
(g) If a person is convicted of a second or subsequent offense
that results in a conviction of this section within seven years, but
over five years, of a prior offense that resulted in a conviction of
a violation of this section or Section 14601, 14601.1, or 14601.5 and
is granted probation, the court shall impose as a condition of
probation that the person be confined in the county jail for at least
10 days.
(h) Pursuant to Section 23575, the court shall require a person
convicted of a violation of this section to install a certified
ignition interlock device on a vehicle the person owns or operates.
Upon receipt of the abstract of a conviction under this section, the
department shall not reinstate the privilege to operate a motor
vehicle until the department receives proof of either the
"Verification of Installation" form as described in paragraph (2) of
subdivision (g) of Section 13386 or the Judicial Council Form I.D.
100.
(i) This section does not prohibit a person who is participating
in, or has completed, an alcohol or drug rehabilitation program from
driving a motor vehicle that is owned or utilized by the person's
employer, during the course of employment on private property that is
owned or utilized by the employer, except an offstreet parking
facility as defined in subdivision (c) of Section 12500.
(j) This section also applies to the operation of an off-highway
motor vehicle on those lands that the Chappie-Z'berg Off-Highway
Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section
38000)) applies as to off-highway motor vehicles, as described in
Section 38001.
(k) If Section 23573 is applicable, then subdivision (h) is not
applicable.
SEC. 2. Section 14601.4 of the Vehicle Code is amended to read:
14601.4. (a) It is unlawful for a person, while driving a vehicle
with a license suspended or revoked pursuant to Section 14601.2 to
do an act forbidden by law or neglect a duty imposed by law in the
driving of the vehicle, which act or neglect proximately causes
bodily injury to a person other than the driver. In proving the
person neglected a duty imposed by law in the driving of the vehicle,
it is not necessary to prove that a specific section of this code
was violated.
(b) A person convicted under this section shall be imprisoned in
the county jail and shall not be released upon work release,
community service, or other release program before the minimum period
of imprisonment, prescribed in Section 14601.2, is served. If a
person is convicted of that offense and is granted probation, the
court shall require that the person convicted serve at least the
minimum time of imprisonment, as specified in those sections, as a
term or condition of probation.
(c) When the prosecution agrees to a plea of guilty or nolo
contendere to a charge of a violation of this section in satisfaction
of, or as a substitute for, an original charge of a violation of
Section 14601.2, and the court accepts that plea, except, in the
interest of justice, when the court finds it should be inappropriate,
the court shall, pursuant to Section 23575, require the person
convicted, in addition to other requirements, to install a certified
ignition interlock device on a vehicle that the person owns or
operates for a period not to exceed three years.
(d) This section also applies to the operation of an off-highway
motor vehicle on those lands that the Chappie-Z'berg Off-Highway
Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section
38000)) applies as to off-highway motor vehicles, as described in
Section 38001.
(e) Upon receipt of the abstract of a conviction under this
section, the department shall not reinstate the privilege to operate
a motor vehicle until the department receives proof of either the
"Verification of Installation" form as described in paragraph (2) of
subdivision (g) of Section 13386 or the Judicial Council Form I.D.
100.
(f) If Section 23573 is applicable, then subdivisions (c) and (e)
are not applicable.
SEC. 3. Section 14601.5 of the Vehicle Code is amended to read:
14601.5. (a) A person shall not drive a motor vehicle at any time
when that person's driving privilege is suspended or revoked
pursuant to Section 13353, 13353.1, or 13353.2 and that person has
knowledge of the suspension or revocation.
(b) Except in full compliance with the restriction, a person shall
not drive a motor vehicle at any time when that person's driving
privilege is restricted pursuant to Section 13353.7 or 13353.8 and
that person has knowledge of the restriction.
(c) Knowledge of suspension, revocation, or restriction of the
driving privilege shall be conclusively presumed if notice has been
given by the department to the person pursuant to Section 13106. The
presumption established by this subdivision is a presumption
affecting the burden of proof.
(d) A person convicted of a violation of this section is
punishable, as follows:
(1) Upon a first conviction, by imprisonment in the county jail
for not more than six months or by a fine of not less than three
hundred dollars ($300) or more than one thousand dollars ($1,000), or
by both that fine and imprisonment.
(2) If the offense occurred within five years of a prior offense
that resulted in a conviction for a violation of this section or
Section 14601, 14601.1, 14601.2, or 14601.3, by imprisonment in the
county jail for not less than 10 days or more than one year, and by a
fine of not less than five hundred dollars ($500) or more than two
thousand dollars ($2,000).
(e) In imposing the minimum fine required by subdivision (d), the
court shall take into consideration the defendant's ability to pay
the fine and may, in the interest of justice, and for reasons stated
in the record, reduce the amount of that minimum fine to less than
the amount otherwise imposed.
(f) This section does not prohibit a person who is participating
in, or has completed, an alcohol or drug rehabilitation program from
driving a motor vehicle, that is owned or utilized by the person's
employer, during the course of employment on private property that is
owned or utilized by the employer, except an offstreet parking
facility as defined in subdivision (c) of Section 12500.
(g) When the prosecution agrees to a plea of guilty or nolo
contendere to a charge of a violation of this section in satisfaction
of, or as a substitute for, an original charge of a violation of
Section 14601.2, and the court accepts that plea, except, in the
interest of justice, when the court finds it would be inappropriate,
the court shall, pursuant to Section 23575, require the person
convicted, in addition to other requirements, to install a certified
ignition interlock device on a vehicle that the person owns or
operates for a period not to exceed three years.
(h) This section also applies to the operation of an off-highway
motor vehicle on those lands that the Chappie-Z'berg Off-Highway
Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section
38000)) applies as to off-highway motor vehicles, as described in
Section 38001.
(i) Upon receipt of the abstract of a conviction under this
section, the department shall not reinstate the privilege to operate
a motor vehicle until the department receives proof of either the
"Verification of Installation" form as described in paragraph (2) of
subdivision (g) of Section 13386 or the Judicial Council Form I.D.
100.
(j) If Section 23573 is applicable, then subdivisions (g) and (i)
are not applicable.
SEC. 4. Section 23573 is added to the Vehicle Code, to read:
23573. (a) The Department of Motor Vehicles, upon receipt of the
court's abstract of conviction for a violation listed in subdivision
(j), shall inform the convicted person of the requirements of this
section and the term for which the person is required to have a
certified ignition interlock device installed. The records of the
department shall reflect the mandatory use of the device for the term
required and the time when the device is required to be installed
pursuant to this code.
(b) The department shall advise the person that installation of an
ignition interlock device on a vehicle does not allow the person to
drive without a valid driver's license.
(c) A person who is notified by the department pursuant to
subdivision (a) shall, within 30 days of notification, complete all
of the following:
(1) Arrange for each vehicle owned or operated by the person to be
fitted with an ignition interlock device by a certified ignition
interlock device provider under Section 13386.
(2) Notify the department and provide to the department proof of
installation by submitting the "Verification of Installation" form
described in paragraph (2) of subdivision (g) of Section 13386.
(3) Pay to the department a fee sufficient to cover the costs of
administration of this section, including startup costs, as
determined by the department.
(d) The department shall place a restriction on the driver's
license record of the convicted person that states the driver is
restricted to driving only vehicles equipped with a certified
ignition interlock device.
(e) (1) A person who is notified by the department pursuant to
subdivision (a) shall arrange for each vehicle with an ignition
interlock device to be serviced by the installer at least once every
60 days in order for the installer to recalibrate and monitor the
operation of the device.
(2) The installer shall notify the department if the device is
removed or indicates that the person has attempted to remove, bypass,
or tamper with the device, or if the person fails three or more
times to comply with any requirement for the maintenance or
calibration of the ignition interlock device.
(f) The department shall monitor the installation and maintenance
of the ignition interlock device installed pursuant to subdivision
(a).
(g) (1) A person who is notified by the department, pursuant to
subdivision (a), is exempt from the requirements of subdivision (c)
if all of the following circumstances occur:
(A) Within 30 days of the notification, the person certifies to
the department all of the following:
(i) The person does not own a vehicle.
(ii) The person does not have access to a vehicle at his or her
residence.
(iii) The person no longer has access to the vehicle being driven
by the person when he or she was arrested for a violation that
subsequently resulted in a conviction for a violation listed in
subdivision (j).
(iv) The person acknowledges that he or she is only allowed to
drive a vehicle that is fitted with an operating ignition interlock
device and that he or she is required to have a valid driver's
license before he or she can drive.
(v) The person is subject to the requirements of this section when
he or she purchases or has access to a vehicle.
(B) The person's driver's license record has been restricted
pursuant to subdivision (d).
(C) The person complies with this section immediately upon
commencing ownership or operation of a vehicle subject to the
required installation of an ignition interlock device.
(2) A person who has been granted an exemption pursuant to this
subdivision and who subsequently drives a vehicle in violation of the
exemption is subject to the penalties of subdivision (i) in addition
to any other applicable penalties in law.
(h) This section does not permit a person to drive without a valid
driver's license.
(i) A person who is required under subdivision (c) to install an
ignition interlock device who willfully fails to install the ignition
interlock device within the time period required under subdivision
(c) is guilty of a misdemeanor and shall be punished by imprisonment
in the county jail for not more than six months or by a fine of not
more than five thousand dollars ($5,000), or by both that fine and
imprisonment.
(j) In addition to all other requirements of this code, a person
convicted of any of the following violations shall be punished as
follows:
(1) Upon a conviction of a violation of Section 14601.2, 14601.4,
or 14601.5 subsequent to one prior conviction of a violation of
Section 23103.5, 23152, or 23153, within a 10-year period, the person
shall immediately install a certified ignition interlock device,
pursuant to this section, in all vehicles owned or operated by that
person for a term of one year.
(2) Upon a conviction of a violation of Section 14601.2, 14601.4,
or 14601.5 subsequent to two prior convictions of a violation of
Section 23103.5, 23152, or 23153, within a 10-year period, or one
prior conviction of Section 14601.2, 14601.4, or 14601.5, within a
10-year period, the person shall immediately install a certified
ignition interlock device, pursuant to this section, in all vehicles
owned or operated by that person for a term of two years.
(3) Upon a conviction of a violation of Section 14601.2, 14601.4,
or 14601.5 subsequent to three or more prior convictions of a
violation of Section 23103.5, 23152, or 23153, within a 10-year
period, or two or more prior convictions of Section 14601.2, 14601.4,
or 14601.5, within a 10-year period, the person shall immediately
install a certified ignition interlock device, pursuant to this
section, in all vehicles owned or operated by that person for a term
of three years.
(k) The department shall notify the court if a person subject to
this section has failed to show proof of installation within 30 days
of the department informing the person he or she is required to
install a certified ignition interlock device.
(l) Subdivisions (j), (k), (m), (n), and (o) of Section 23575
apply to this section.
(m) The requirements of this section are in addition to any other
requirements of law.
(n) This section shall become operative on July 1, 2009.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.



www.SanDiegoDUI.com

San Diego California DUI attorneys at www.SanDiegoDUILawyer.com/blog report that a high-ranking official of the California Correctional Peace Officers Association was arrested Monday night in San Joaquin County on suspicion of drunken driving or California DUI.

Lance Corcoran, 44, was booked into the San Joaquin County Jail about 9 p.m. and released Tuesday, according to San Diego California DUI lawyers.

Corcoran has been identified in news stories as recently as Sept. 8 as a spokesman for the correctional officers union, which last month announced an effort to recall Gov. Arnold Schwarzenegger. Corcoran was quoted in a Sacramento Bee story about the recall effort as saying, "In the history of bad governors, this is the worst governor we've ever had."

CHP Assistant Chief Michael Champion said a CHP officer spotted Corcoran's vehicle at 7:20 p.m. Monday parked on the side of Eight Mile Road west of West Lane. Champion said Corcoran appeared to be slumped behind the wheel, according to San Diego California DUI attorney sources.

Champion said Corcoran submitted to a field sobriety test, and his performance led the officer to conclude Corcoran was drunk. The results of a chemical analysis were not available Tuesday per San Diego California DUI / Drunk Driving lawyers.