Beginning in the late 1980s in Washington State, and more recently and frequently in other jurisdictions including Arizona, Connecticut, Florida, Georgia, Kentucky, Louisiana, Massachusetts, Minnesota, New Jersey, New York, Tennessee, Texas, and the Province of Ontario, Canada, defendants in driving-under-the-influence-of-alcohol (DUI) cases have made discovery demands for the Source Code∗ of the computer software of the evidential breath alcohol analyzers with which they had been tested.

The Committee on Alcohol and Other Drugs has been advised that the great majority of trial
and appellate court decisions on such Source Code issues to date have denied the defense
access to the Source Code, chiefly on the grounds that it is not material or necessary to the
challenge of the evidential breath-alcohol analyzer and/or the results yielded by that device,
or that the state has no duty to disclose information not in its control, custody, or possession.
However, in aggregate, Source Code litigation has resulted in great expenditures of effort,
time, and costs as well as substantial delays in resolving the underlying cases, without useful
outcomes. Therefore, the Committee has in the public interest examined in detail the Source
Code litigation discovery issue, from a forensic science and technological perspective.
It is the position of the National Safety Council Committee on Alcohol and
Other Drugs that access to the Source Code of the software of an evidential
breath-alcohol analyzer is not pertinent, required, or useful for examination
or evaluation of the analyzer’s accuracy, scientific reliability, forensic
validity, or other relevant characteristics, or of the trustworthiness and
reliability of analysis results produced by the analyzer. These matters can be
and have been fully assessed and examined by multiple other well established
and recognized methods and procedures in common use worldwide; and
many other adequate and appropriate means exist to challenge evidential
breath-alcohol analysis results.
∗
Source Code is a series of statements written in human-readable computer programming
language. It is the basis of all computer programs, and consists of a structured set of
instructions that cause a computer or microprocessor-equipped device to perform specific
operations.
National Safety Council's
Committee on Alcohol and Other Drugs
2/3
COMMENT
The above position of the Committee is reflected universally in operational practices in
evidential breath-alcohol testing, nationally and internationally. The comprehensive national
program for evaluating evidential breath-alcohol analyzers for conformity with Federally
established Model Specifications for Evidential Breath Testing Devices, an activity carried
out by the National Highway Traffic Safety Administration of the U. S. Department of
Transportation to establish and maintain a Conforming Products List of such devices, does
not use or evaluate Source Codes of the analyzers in that process. Likewise, the International
Recommendation on Breath Alcohol Analyzers, OIML R 126 “Evidential breath analyzers,”
promulgated by the International Organization of Legal Metrology (OIML), an international
treaty organization of which the United States of America is a Member State, does not refer
to or include the Source Code of analyzers in its Recommendation, the purpose of which is to
define the performance requirements of evidential breath analyzers for alcohol and the means
and methods employed in testing them. The evidential breath-alcohol analyzer instrument
standards and approval procedures officially used in Canada have been recommended by the
Alcohol Test Committee of the Canadian Society of Forensic Science. These standards and
procedures do not mention or utilize analyzer Source Codes. The leading treatises on the
subject of quality assurance in breath-alcohol analysis, published in the peer-reviewed
scientific literature, authored by Dubowski (1994) and Gullberg (2000), are intended to
enhance the reliability and validity of evidential breath-alcohol testing practice. They do not
mention Source Codes, although both scientists are fully familiar with that aspect of
computerization.
The References cited below confirm and support the Committee’s foregoing position.
REFERENCES
1. “A Guide to Type Approval Procedures for Evidential Breath Alcohol Testing
Instruments Used for Road Traffic Law Enforcement in Great Britain.” Home Office
and Forensic Science Service. London, HMSO Publications, (Oct. 1994).
2. California v. Trombetta, [U. S. Supreme Court] 467 U. S. 479 (1984).
3. Dubowski, K. M.: “Quality Assurance in Breath-Alcohol Analysis,” J. Analyt.
Toxicol. 18: 306-311 (Oct. 1994).
4. Federal Rules of Evidence. ARTICLE IV, Rule 402 (2008).
5. Federal Rules of Evidence. ARTICLE IV, Rule 403 (2008).
6. Gullberg, R. G.: “Methodology and Quality Assurance in Forensic Breath Alcohol
Analysis,” Forensic Science Review 12: 49-67 (Jan. 2000).
7. Hodgson, B. T.: “The Validity of Evidential Breath Alcohol Testing,” [Review Article]
Can. Soc. Forensic Sci. J. 41: 83-96 (2008).
8. King, M. P. (Special Master): “SUPPLEMENTAL FINDINGS AND CONCLUSIONS
OF REMAND COURT,” submitted to the New Jersey Supreme Court
Nov. 8, 2007. [Supreme Court of New Jersey, September Term 2005, Docket No.
58,879, State of New Jersey v. Chun, et al.]
3/3
[The New Jersey Supreme Court Special Master’s “Supplemental Findings
and Conclusions of Remand Court,” on the Source Code issue and dated Nov.
8, 2007, in State of New Jersey v. Chun, et al., contain much information
about the complexities of examining and evaluating Source Codes of the
software of evidential breath-alcohol analyzers; and establish that these are
not simple or routine tasks. The Special Master, at pp. 51-52, recorded that an
expert witness for the defendants, without rebuttal, testified that “the
Alcotest’s software was ‘far too complex’ to test” and that the same witness
also “…estimated that it would require all of mankind for the rest of time to
test all of the paths in the Alcotest’s source code.”]
9. Koehn, M.: REPORT – Best Practices: “Producing Source Code in Litigation,” Digital
Discovery & E-Guidance 8 (No. 3) 1-3: (March 1, 2008) [BNA Report #ISSN 1537-
5099].
10. McShane, S. F., and Hammer, I. J.: Intellectual Property: “Protecting Source Code,”
New Jersey Law J. 181: 231-233 (July 18, 2005).
11. National Highway Traffic Safety Administration, Highway Safety Programs: “Model
Specifications for Devices to Measure Breath Alcohol,” Federal Register 58: 48705-
48710 (Sept. 17, 1993).
12. OIML: “Recommendation R 126 – Evidential breath analyzers.” Paris, International
Organization of Legal Metrology (1998).
13. “Recommended Standards and Procedures of the Canadian Society of Forensic Science
Alcohol Test Committee,” Can. Soc. Forensic Sci. J. 36: 101-127 (2003).
14. Short, C.: “Guilt by Machine. The Problem of Source Code Discovery in Florida DUI
Prosecutions,” Florida Law Review 61: 177-201 (Jan. 2009).
15. State of New Jersey v. Chun, et al. [New Jersey Supreme Court] 191 N. J. 308 (2007),
194 N. J. 54 (2008).
16. Strutin, K.: “Examining Source Code Evidence,” New York Law Journal, pp. 5-8
(November 14, 2007).

Adopted February 16, 2009 by the NSC CAOD

This concludes the position of one non-judicial government agency deciding what they expediently think is vs. what is not relevant in a criminal DUI trial.

The San Diego DUI conviction was upheld by the Appellate Court involving the lady with San Diego Chargers star linebacker Steve Foley the night he had a .21% BAC and was shot by then 23 year old CPD rookie Officer Aaron Mansker, an off-duty Coronado police officer who still aggressively pursues alleged DUI drivers.

The bullet to the Chargers star hit his knee; unfortunately he had to retire from football. He settled with Mansker and the city of Coronado for $5.5 million after pleading to a San Diego DUI.

The lady, Lisa Gaut, was found guilty of 2 San Diego DUI charges plus assault with a deadly weapon. Mansker swore under oath that about 3:15 a.m., he spotted Foley's vehicle moving erratically and swerving on northbound state Route 163. Driving an unmarked car, he actually tried to pull it over in street clothes. He chased the car for thirteen miles to Foley's house, where he shot the player when he claimed Foley was reaching. Gaut, then 25 and living with her son, jumped in the driver's seat and drove the car at the rookie. 6 months in jail was her DUI / assault sentence even though the cop got out of the way.

Rejecting her argument there was insufficient evidence to convict her, the court also disagreed that the lower court erred when the judge allowed her recorded jailhouse telephone calls to be introduced as evidence and the claim the court improperly failed to instruct the San Diego drunk driving jury.

Filed 5/28/09 Patterson v. DMV CA6
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

SIXTH APPELLATE DISTRICT


JOSHUA ALDEN PATTERSON,

Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.
H032185
(Santa Cruz County
Super. Ct. No. CV156535)


The superior court issued a writ of mandate overturning the administrative decision of appellant Department of Motor Vehicles (the DMV) to suspend respondent Joshua Alden Patterson’s driving privilege. The hearing officer at the administrative hearing had sustained Patterson’s objection to the admission of preliminary alcohol screening (PAS) test results to show Patterson’s blood alcohol level but had overruled his objection to the admission of and reliance on a document purporting to be a record of a forensic alcohol analysis (hereafter the RFAA). The superior court concluded that the RFAA was not admissible and sufficient to support the hearing officer’s finding and that the PAS test results could not be utilized to support the finding.
The DMV appeals from the superior court’s ruling and argues that, although the RFAA was not admissible under Evidence Code section 1280, it was nevertheless admissible under Vehicle Code section 23612, subdivision (g)(2) to support the hearing officer’s finding. Alternatively, the DMV asserts that the superior court should have found that the hearing officer’s finding was supported by the PAS test results. This court recently decided these same issues on similar facts in Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974 (Molenda). We agree with Molenda and on that basis affirm the judgment.

I. Factual and Procedural Background
In the early morning hours of December 3, 2006, a silver Ford F150 was observed weaving from side to side and repeatedly crossing over onto the right shoulder on Highway 1. The officers who observed this activity stopped the vehicle, and Patterson was the driver. He displayed objective symptoms of alcohol intoxication. One of the officers administered two PAS tests to Patterson, two minutes apart. These tests showed blood alcohol levels of .121 percent and .117 percent. Patterson was placed under arrest, and he submitted to a blood test.
The administrative hearing was held on January 18, 2007. At the hearing, the DMV introduced the RFAA, which was entitled “Forensic Alcohol Analysis.” The RFAA stated that Patterson’s blood sample had been received on December 4, 2006 and thereafter found to contain .13 percent alcohol. The RFAA read: “DATE ANALYSIS COMPLETE: 12/21/2006 [¶] DATE OF REPORT: 12/27/2006.” It was signed by Erol Ergun, “Criminalist.” The bottom of the RFAA bore a stamp that had been signed by a DMV employee and dated January 5, 2007. This stamp read: “I certify, under the penalty of perjury, under the laws of the State of California, that this is a true and correct copy of the forensic laboratory report that I retrieved on the date indicated below from the Department of Justice Laboratory Information Management System (LIMS) data base [sic] system. Copy prepared at Department of Motor Vehicles, San Jose, California.”
At the administrative hearing, Patterson’s attorney objected to admission of and reliance upon the RFAA due to the fact that the RFAA was not prepared “at or near” the time of the analysis. He based his objection on Downer v. Zolin (1995) 34 Cal.App.4th 578. The hearing officer overruled that objection. However, the hearing officer sustained Patterson’s attorney’s objection to the admission of the PAS test results for the “actual numerical value.” The hearing officer stated that he would use the PAS tests only to “show[] presence of alcohol” and “I will not use the number of PAS to prove the fact of the matter.” The hearing officer found that Patterson was driving with a .08 percent or higher blood alcohol level. In February 2007, the DMV suspended Patterson’s driving privilege.
On March 9, 2007, Patterson filed a petition for a writ of mandate and requested a temporary stay. He asserted that the RFAA was inadequate to establish his blood alcohol level because it was inadmissible hearsay that did not come within Evidence Code section 1280. Patterson’s contention was premised on the fact that the analysis was completed on December 21, 2006, but the RFAA was not prepared until December 27, 2006, which was not at or near the time of the analysis within the meaning of Evidence Code section 1280.
The superior court issued an order to show cause and granted Patterson’s request for a temporary stay of the suspension of his driving privilege. The DMV claimed that the RFAA was admissible under Vehicle Code section 23612, subdivision (g)(2). It also argued that the PAS test results were sufficient to support the hearing officer’s finding.
The superior court rejected the DMV’s arguments. It concluded that the RFAA was inadmissible under Evidence Code section 1280 and therefore could not, under Government Code section 11513, subdivision (d), provide the sole support for the DMV’s finding that Patterson had a .08 percent or higher blood alcohol level. The superior court found that “the record at the administrative hearing below is insufficient for me to consider the PAS test result given the ruling in the Coniglio[ ] case and also given the fact that the hearing officer did not consider that evidence and sustained the objection as to the admissibility of that evidence below and it would be inappropriate for me to consider it now.” The superior court issued a peremptory writ of mandate setting aside the DMV’s suspension of Patterson’s driving privilege. The DMV filed a timely notice of appeal.

II. Analysis
This case is essentially on all fours with Molenda. Molenda was administered two PAS tests, two minutes apart, which showed that she had a blood alcohol level above .08 percent. (Molenda, supra, 172 Cal.App.4th at p. 983.) The report on the analysis of her blood sample (the report) stated that the analysis was completed on September 1, but the report was dated September 8. (Molenda, at p. 983.) At the administrative hearing, Molenda’s counsel’s objection to the PAS test results was sustained as to the blood alcohol level. Her counsel objected to the report on the ground that it did not come within Evidence Code section 1280. His objection was overruled. Molenda’s writ petition was granted on the same grounds as Patterson’s writ petition was granted. (Molenda, at pp. 984-985.)
On appeal, the DMV did not contend that the report was admissible under Evidence Code section 1280, but instead that the report was admissible and sufficient to support the hearing officer’s finding under Vehicle Code section 23612, subdivision (g)(2). The DMV also argued that the PAS test results were sufficient to support the hearing officer’s finding. (Molenda, supra, 172 Cal.App.4th at pp. 986, 989.)
This court thoroughly analyzed and rejected these contentions. First, it concluded that the report was not admissible under Vehicle Code section 23612, subdivision (g)(2). “We conclude that while Vehicle Code section 23612, subdivision (g)(2) provides that the DMV may receive or retrieve evidence of a licensee’s blood alcohol test results directly from a government forensic lab database and that such evidence is the best available evidence of the test results, the statute does not preclude the opponent of the evidence from challenging the document or other record on other exclusionary grounds, including hearsay. [¶] Nothing in the language of Vehicle Code section 23612, subdivision (g)(2) suggests that it was intended to operate as an exception to the hearsay rule.” (Molenda, supra, 172 Cal.App.4th at p. 997.) The DMV makes the same argument here as it did in Molenda. We agree with Molenda’s analysis and therefore reject the DMV’s contention. Consequently, the RFAA could not support the hearing officer’s finding that Patterson’s blood alcohol level was .08 percent or higher.
In Molenda, this court also considered and rejected the DMV’s contention that the PAS test results were sufficient to support the hearing officer’s finding even though the hearing officer had excluded those test results. The DMV had not established a proper foundation for the admission of the PAS test results because there was no evidence of the type of device that had been used or of the training of the officer who had administered the PAS tests. (Molenda, supra, 172 Cal.App.4th at pp. 1000-1001.) The DMV attempted to rely on the Evidence Code section 664 presumption to obviate the need to establish a foundation, but this court rejected that attempt for two reasons. First, the officer had not included the PAS test results in his sworn report or certified those results. (Molenda, at p. 1004.) Second, because the hearing officer had sustained Molenda’s counsel’s foundational objection to the PAS test results at the administrative hearing, Molenda had reasonably relied on that ruling and presented no evidence challenging the reliability of the PAS tests. (Molenda, at pp. 1004-1005.)
The DMV makes the same contentions here that it did in Molenda, and we apply the same analysis applied in Molenda. The DMV failed to establish a proper foundation for the admission of the PAS test results at the administrative hearing because it produced no evidence of the type of device used or the officer’s training in using the device. Nor could the DMV rely on the Evidence Code section 664 presumption. As in Molenda, the PAS test results were not included in the officer’s sworn report nor did he certify those results. And, as in Molenda, Patterson’s failure to present evidence challenging the reliability of the PAS tests at the administrative hearing was due to his reasonable reliance on the hearing officer’s ruling upholding his foundational objection to the PAS test results.
As both of the issues raised by the DMV were resolved against it by this court in Molenda, and we agree with the analysis and conclusions in Molenda, we uphold the superior court’s decision.

III. Disposition
The judgment is affirmed.



_______________________________
Mihara, J.



WE CONCUR:






_____________________________
Bamattre-Manoukian, Acting P. J.






_____________________________
Duffy, J.

Filed 5/28/09 Force v. DMV CA6
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

SIXTH APPELLATE DISTRICT


JAMES WESLEY FORCE,

Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.
H032188
(Santa Cruz County
Super. Ct. No. CV156561)


The superior court issued a writ of mandate overturning the administrative decision of appellant Department of Motor Vehicles (the DMV) to suspend respondent James Wesley Force’s driving privilege. The hearing officer at the administrative hearing had sustained Force’s objection to the admission of preliminary alcohol screening (PAS) test results to show Force’s blood alcohol level but had overruled his objection to the admission of and reliance on a document purporting to be a record of a forensic alcohol analysis (hereafter the RFAA). The superior court concluded that the RFAA was not admissible and sufficient to support the hearing officer’s finding and that the PAS test results could not be utilized to support the finding.
The DMV appeals from the superior court’s ruling and argues that, although the RFAA was not admissible under Evidence Code section 1280, it was nevertheless admissible under Vehicle Code section 23612, subdivision (g)(2) to support the hearing officer’s finding. Alternatively, the DMV asserts that the superior court should have found that the hearing officer’s finding was supported by the PAS test results. This court recently decided these same issues on similar facts in Molenda v. Department of Motor Vehicles (2009) 172 Cal.App.4th 974 (Molenda). We agree with Molenda and on that basis affirm the judgment.

I. Factual and Procedural Background
In the early morning hours of April 12, 2006, Force’s pickup truck was observed drifting into the bike lane and proceeding in the bike lane for 100 feet. An officer stopped Force’s vehicle, and Force displayed objective symptoms of alcohol intoxication. The officer administered a PAS test to Force 17 minutes after Force’s detention, and a second PAS test two minutes later. These tests showed blood alcohol levels of .094 percent and .096 percent. Force was placed under arrest, and he submitted to a blood test 40 minutes after the vehicle stop.
The administrative hearing was held on January 18, 2007. At the hearing, the DMV introduced the RFAA, which was entitled “Forensic Alcohol Analysis.” The RFAA stated that Force’s blood sample had been received on April 17 and thereafter found to contain .11 percent alcohol. The RFAA read: “DATE ANALYSIS COMPLETE: 4/24/2006 [¶] DATE OF REPORT: 4/28/2006.” It was signed by Gregory L. Avilez, “Senior Criminalist.” The bottom of the RFAA bore a stamp that had been signed by a DMV employee and dated May 17, 2006. This stamp read: “I certify, under the penalty of perjury, under the laws of the State of California, that this is a true and correct copy of the forensic laboratory report that I retrieved on the date indicated below from the Department of Justice Laboratory Information Management System (LIMS) data base [sic] system. Copy prepared at Department of Motor Vehicles, San Jose, California.”
At the administrative hearing, Force’s attorney objected to admission of and reliance upon the RFAA due to the fact that the RFAA was not prepared “at or near” the time of the analysis. He based his objection on Downer v. Zolin (1995) 34 Cal.App.4th 578. The hearing officer overruled that objection. However, the hearing officer sustained Force’s attorney’s objection to the admission of the PAS test results to show Force’s blood alcohol level. The hearing officer stated that he would use the PAS tests only to “show[] presence of alcohol and I do not use PAS number to prove the fact of the matter.” The hearing officer found that Force was driving with a .08 percent or higher blood alcohol level. In February 2007, the DMV suspended Force’s driving privilege.
On March 13, 2007, Force filed a petition for a writ of mandate and requested a temporary stay. He asserted that the RFAA was inadequate to establish his blood alcohol level because it was inadmissible hearsay that did not come within Evidence Code section 1280. Force’s contention was premised on the fact that the analysis was completed on April 24, 2006, but the RFAA was not prepared until April 28, 2006, which was not at or near the time of the analysis within the meaning of Evidence Code section 1280.
The superior court issued an order to show cause and granted Force’s request for a temporary stay of the suspension of his driving privilege. The DMV claimed that the RFAA was admissible under both Evidence Code section 1280 and Vehicle Code section 23612, subdivision (g)(2) and under Government Code section 11513, subdivision (d) “to supplement and explain the PAS test results.” It also argued that the PAS test results were sufficient to support the hearing officer’s finding.
The superior court rejected the DMV’s arguments. It concluded that the RFAA was inadmissible under Evidence Code section 1280 and therefore could not, under Government Code section 11513, subdivision (d), provide the sole support for the DMV’s finding that Force had a .08 percent or higher blood alcohol level. The superior court found that “the record at the administrative hearing below is insufficient for me to consider the PAS test result given the ruling in the Coniglio[ ] case and also given the fact that the hearing officer did not consider that evidence and sustained the objection as to the admissibility of that evidence below and it would be inappropriate for me to consider it now.” The superior court issued a peremptory writ of mandate setting aside the DMV’s suspension of Force’s driving privilege. The DMV filed a timely notice of appeal.

II. Analysis
This case is essentially on all fours with Molenda. Molenda was administered two PAS tests, two minutes apart, which showed that she had a blood alcohol level above .08 percent. (Molenda, supra, 172 Cal.App.4th at p. 983.) The report on the analysis of her blood sample (the report) stated that the analysis was completed on September 1, but the report was dated September 8. (Molenda, at p. 983.) At the administrative hearing, Molenda’s counsel’s objection to the PAS test results was sustained as to the blood alcohol level. Her counsel objected to the report on the ground that it did not come within Evidence Code section 1280. His objection was overruled. Molenda’s writ petition was granted on the same grounds as Force’s writ petition was granted. (Molenda, at pp. 984-985.)
On appeal, the DMV did not contend that the report was admissible under Evidence Code section 1280, but instead that the report was admissible and sufficient to support the hearing officer’s finding under Vehicle Code section 23612, subdivision (g)(2). The DMV also argued that the PAS test results were sufficient to support the hearing officer’s finding. (Molenda, supra, 172 Cal.App.4th at pp. 986, 989.)
This court thoroughly analyzed and rejected these contentions. First, it concluded that the report was not admissible under Vehicle Code section 23612, subdivision (g)(2). “We conclude that while Vehicle Code section 23612, subdivision (g)(2) provides that the DMV may receive or retrieve evidence of a licensee’s blood alcohol test results directly from a government forensic lab database and that such evidence is the best available evidence of the test results, the statute does not preclude the opponent of the evidence from challenging the document or other record on other exclusionary grounds, including hearsay. [¶] Nothing in the language of Vehicle Code section 23612, subdivision (g)(2) suggests that it was intended to operate as an exception to the hearsay rule.” (Molenda, supra, 172 Cal.App.4th at p. 997.) The DMV makes the same argument here as it did in Molenda. We agree with Molenda’s analysis and therefore reject the DMV’s contention. Consequently, the RFAA could not support the hearing officer’s finding that Force’s blood alcohol level was .08 percent or higher.
In Molenda, this court also considered and rejected the DMV’s contention that the PAS test results were sufficient to support the hearing officer’s finding even though the hearing officer had excluded those test results. The DMV had not established a proper foundation for the admission of the PAS test results because there was no evidence of the type of device that had been used or of the training of the officer who had administered the PAS tests. (Molenda, supra, 172 Cal.App.4th at pp. 1000-1001.) The DMV attempted to rely on the Evidence Code section 664 presumption to obviate the need to establish a foundation, but this court rejected that attempt for two reasons. First, the officer had not included the PAS test results in his sworn report or certified those results. (Molenda, at p. 1004.) Second, because the hearing officer had sustained Molenda’s counsel’s foundational objection to the PAS test results at the administrative hearing, Molenda had reasonably relied on that ruling and presented no evidence challenging the reliability of the PAS tests. (Molenda, at pp. 1004-1005.)
The DMV makes the same contentions here that it did in Molenda, and we apply the same analysis applied in Molenda. The DMV failed to establish a proper foundation for the admission of the PAS test results at the administrative hearing because it produced no evidence of the type of device used or the officer’s training in using the device. Nor could the DMV rely on the Evidence Code section 664 presumption. As in Molenda, the PAS test results were not included in the officer’s sworn report nor did he certify those results. And, as in Molenda, Force’s failure to present evidence challenging the reliability of the PAS tests at the administrative hearing was due to his reasonable reliance on the hearing officer’s ruling upholding his foundational objection to the PAS test results.
As both of the issues raised by the DMV were resolved against it by this court in Molenda, and we agree with the analysis and conclusions in Molenda, we uphold the superior court’s decision.

III. Disposition
The judgment is affirmed.



_______________________________
Mihara, J.

WE CONCUR:



_____________________________
Bamattre-Manoukian, Acting P. J.




_____________________________
Duffy, J.

The Palm Desert Police Department, in its non-stop dedication to public safety, will be conducting a California DUI Checkpoint this Saturday May 30, 2009 for six hours from eight pm to two am. This drunk driving checkpoint will try to reduce driving while intoxicated and injury collisions, while removing DUI drivers from the roads of California.

Vehicles may be checked and drivers who are DUI will be arrested. Their objective is to send a clear message to those who are considering driving a motor vehicle after consuming alcohol and/or drugs.

Cash for such a California DUI checkpoint operation is provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration. The apparently unlimited source of funding provides funding to staff California drunk driving checkpoints at various times throughout the year to reduce drunk driving.

Rick will lecture on August 1, 2009 at the annual DUI seminar at Loyola Law School, sponsored by the Mexican American Bar Association - click on the above heading for details. San Diego DUI Defense Attorney Rick Mueller lectured at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California. The California criminal defense lawyers who attended dug it. Rick has been asked to be one of the men again.

To the east of San Diego County lies Imperial County where CHP says that DUI arrests for the 2009 Memorial Day Weekend were as high as last year. El Centro's Sector of the CHP maintains that arrests for Driving Under the Influence of Alcohol or Drugs remained the same at 22 arrests each year.

If you need help in San Diego County or Imperial County with defending a DUI or DMV case, consider taking a few precious moments to provide valuable information in order to get a free opinion by a top San Diego DUI attorney, Rick Mueller.

The buzz in San Diego from Memorial Day weekend is: "hey, did you get popped for a DUI?"

San Diego's CHP officers aka "Most DUI Award-battlers for MADD" made 104 San Diego drunk driving arrests. Are these guys not as competitive? That's 4 less than they the overzealous effort Memorial DAy weekend last year, San Diego DUI attorneys are told.

In California, unfortunately 45 people died in vehicle crashes this year over the Memorial Day weekenend; there were 30 in 2008. 1,465 drivers were arrested on suspicion of California DUI, a modest increase from 1,445 in 2008.

If you know someone who needs to save his or her license - and keep out of jail - have them take a few important minutes to get a free online Consultation by a premier San Diego DUI lawyer named Rick Mueller with 25 years of drunk driving defense experience!

San Diego DUI and drunk driving arrests this Memorial Day holiday weekend are about steady from last year and across the state, San Diego California dui lawyers report.
No one has been killed on San Diego County roads or highways since the Memorial Day weekend count started at 6 p.m. Friday.

90 people were arrested in San Diego County between 6 p.m. Friday to 6 a.m. today for San Diego DUI / drunk driving, compared to 93 San Diego DUI arrests last year.
1,296 people were arrested for California DUI between 6 p.m. Friday and 6 a.m. today. Last year, that figure was 1,301.

If you are in need of a quality San Diego DUI attorney to aggressively fight for you, fill out the free, online evaluation form today. Criminal defense lawyer Rick Mueller is scheduled to speak at the upcoming annual DUI seminar (click on the heading).

Q. Was the San Diego DUI Blood Tech Qualified by California Law to Draw?

California DUI defense lawyers may be able to defend a San Diego DUI blood test at DMV and/or in court upon successfully showing the blood was drawn by a person not licensed, certified or authorized under Vehicle Code Section 23158 and Business & Professions Code §1246.

BLOOD TESTS IN SAN DIEGO CANNOT BE PRESUMED RELIABLE UNLESS THEY ARE IN STRICT COMPLIANCE WITH VEHICLE CODE §23158(a) AND TITLE 17 §1219.1(a) OF THE CALIFORNIA CODE OF REGULATIONS


If your San Diego DUI attorney shows that a procedure or standard has not been complied with, then there is no longer any presumption of reliability for the alcohol tests.



If your blood specimen is not taken by a person authorized by law to do so, it does not enjoy the presumption of reliability which means the DMV should set aside the suspension action and/or a court must so instruct the jury.



A. Persons Drawing Blood Must Be Authorized Professionals Title 17 §1219.1 [Blood Collection and Retention] regulates:

"(a) Blood samples shall be collected by venipuncture from living individuals as soon as feasible after an alleged offense and only by persons authorized by Section 13354 (now 23158) of the Vehicle Code."

Vehicle Code §23158(a) (formerly §13354) lists several professions whose members are authorized to withdraw blood.



The authorized list is limited to only competent professions:

"Only a licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed clinical laboratory technologist or clinical laboratory bioanalyst, a person who hs been issued a 'certified phlebotomy technician' certificate pursuant to Section 1246 of the Business and Professions Code, unlicensed personnel regulated pursuant to Sections 1242, 1242.5 and 1246 (requiring the person to be 'employed by a clinical laboratory') of the Business and Professions Code, or certified paramedic acting at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein.

This limitation does not apply to the taking of breath specimens."



Ergo, under the doctrine of expressio unius exclusio alterius esti, no one else is empowered to poke someone in order to draw blood for forensic alcohol analysis in Vehicle Code §23152 cases.



B. Test is arguably Inadmissible if Drawer is Unauthorized or Incompetent.



Unless the person administering, processing, and collecting scientific test evidence is competent and qualified, that evidence is inadmissible. [People v. Adams (1976) 59 Cal.App.3d 559, 561, People v. Kelly (1976) 16 Cal.3d 24, 30]



The "only" wording of the statute makes clear the limitation is "mandatory and that compliance constitutes a duty imposed upon the agencies and individual officers and civilian employees who administer, analyze, and report the tests." [People v. Williams (May 17, 2001) No. C031921, quoting People v. Adams, supra, and Davenport v. Department of Motor Vehicles, supra.]



Illegal blood collection is clearly forbidden.



"It has been established by [a number of] cases that the right to penetrate the human tissue for injection of drugs, medicines, or to draw blood, does not come from the experience or training of the injector. The right to inject is based on the state's interest in protecting the public health. Competency is to be determined by the state, not by the injector's associates, and is evidenced by a license issued by the state." [People v. Rehman (1967) 253 Cal.App.2d 119, 161 [Citations omitted]. Since poking someone with a needle is an assault, a battery, and even an assault with a deadly weapon [People v. Lema (1987) 188 Cal.App.3d 1541, 1545, In re Jose R. (1982) 137 Cal.Ap.3d 269, 275-276], then only a specific category of persons may poke with a needle in response to orders by the police; otherwise, both the officer and the poker would be criminally liable under state law [Penal Code §§240/242/245] and federal law [18 U.S.C. §§241/242].



The blood test evidence, in addition to being collected in criminal violation of Licensee's rights, and the rights of all the members of the polity, was in violation of statute and case law, thereby not reliable and therefore evidentiarily inadmissible.



Results of a non-licensed test are "lacking in probativeness." [Coombs v. Pierce, supra @579.] "Probativeness" = relevance; lacking therein = irrelevant = inadmissible. [Evid. C. §§320/350]



In suppressing an unlawfully obtained blood sample taken by a person not authorized by statute to do so, a Texas court held the sample was inadmissible. [State v. Laird (2000) 38 SW3d 707, 2000 WL 1825504]



C. Business & Professions Code §1246 mandates any "unlicensed person" must be "employed by a clinical laboratory."



Business & Professions (B & P) Code §1246 subsections (a) and (b) require the employer to be a "clinical laboratory." This prerequisite must be met before reviewing Department of Health Services' regulations concerning the unlicensed person's credentials as a certified phlebotomist.



Since either B & P §1246 subsection (a) or (b) (1) specifies an "unlicensed person employed by a clinical laboratory," there is no exception to the requirement that a person — who is not licensed in a profession named in Vehicle Code §23158(a) — must be employed by a clinical laboratory in order to lawfully withdraw blood.



Business & Professions Code §1242.5 permits the department, by regulation, to authorize laboratory personnel certified pursuant to Section 1246 "for the purposes of withdrawing blood or for clinical laboratory test purposes, as defined by regulations established by the department." Each established regulation begins with the word "laboratory."



Title 17, Public Health, Division 1. State Department of Health Services, Chapter 2. Laboratories, Group 2. Clinical Laboratory Regulations, Article 1.5 Licensure of Clinical Laboratory Personnel §1034 [Unlicensed Personnel, Venipuncture and Skin Puncture and Arterial Puncture] regulates, as follows:

"Pursuant to Section 1242.5 and Section 1246(b) of the Business and Professions Code, unlicensed persons may perform venipuncture, skin puncture or arterial puncture upon meeting the following training requirements:



(a) An unlicensed person employed by a licensed clinical laboratory for the purpose of withdrawing blood for test purposes upon specific authorization from a licensed physician or surgeon, provided he has been trained in the proper procedure to be employed in the performance of venipuncture and skin puncture. Ten clock hours of such training shall be the minimum acceptable, shall be carried out under the general supervision of a licensed physician or surgeon or clinical laboratory bioanalyst and the personal and direct supervision of one of these...

Upon satisfaction completion of the above training in venipuncture and skin puncture techniques, the physician and surgeon or clinical laboratory bioanalyst in charge of such training shall prepare and issue to the unlicensed person a signed certificate that the named individual satisfactorily completed training which began and terminated on specified dates.

(b) An unlicensed person employed as a technician in respiratory services or cardiopulmonary laboratories in licensed clinics or hospitals may perform venipuncture...

(c) An unlicensed person employed as a technician in respiratory services or cardiopulmonary laboratories in licensed clinics or hospitals may perform arterial puncture...

(d) Copies of certificates issued under this section shall be maintained in the respective training facilities for a period of at least two years.

Having the name "Nurses" in a contractor's company name does not substitute for Vehicle Code §23158(a)'s or Business & Professions Code §1246's statutory requirement.



Does this blood drawer show a failure to belong to any of the Vehicle Code §23158(a)'s limited group of persons?



It this statutorily-defined unlicensed person not "employed by a clinical laboratory"?



Even if she/he could be found to be employed by the law enforcement laboratory; that is a forensic laboratory, not a clinical laboratory.



If the drawer does not fall into any of the statutorily defined professions or exception, the drawer is not authorized to lawfully draw blood.



D. A Phlebotomist's Credentials and Supervised Draws are Issues Only If the Phlebotomist Is Employed by A Clinical Laboratory



If the drawer's company is not a clinical laboratory, the drawer's credentials in phlebotomy are irrelevant and do not supplant this statutory prerequisite.



Compliance with parts of subsequent regulatory requirements - i.e. meeting proper qualifications - is insufficient. Similarly, proper "supervision" is a separate issue, only after the person performing venipuncture is shown to be "employed by a licensed clinical laboratory." E.g., B & P §1246(a) requires:

"(1) He or she works under the supervision of a person licensed under this chapter or of a licensed physician or surgeon or of a licensed registered nurse. A person licensed under this chapter, a licensed physician or surgeon, or a registered nurse shall be physically available to be summoned to the scene of the venipuncture within five minutes during the performance of those procedures."

Accordingly, questions of supervision, education, training and experience arise only after determination of the prerequisite question of authorized clinical laboratory employment.
DOES THE EVIDENCE SUPPORT THE NECESSARY FINDINGS

A. Can an Unauthorized Source of Information Support a Test Result's Required "Trustworthiness"? [Evid Code §1280(c)]



How can a test result meet the requirement of Evidence Code §1280(c) that the sources of information were such to indicate the blood test record's trustworthiness?



The Official Duty Presumption [Evid. C. §664] does not apply to the "trustworthiness" element of the Official Records Exception to the Hearsay Rule [Evid. C. §1280(c)]. [Shea v. DMV (1998) 62 Cal.App.4th 1057, 1060 - a test performed by an unauthorized person - an unsupervised trainee - is inadmissible; Manning v. DMV (1998) 61 Cal.App.4th 273]



The legislature was aware of Evid. C. §664 when it put the independent requirement of "trustworthiness" into Evid. C. §1280. Thus, before the Department can rely on any §664 official duty presumption, the evidence must first meet all three foundational requirements of Evid. C. §1280, the Official Records statute.



Since a source of this blood draw is unauthorized by law to draw blood, how can this evidence be trustworthy?



B. Is An Unauthorized Blood Draw The Sort of Evidence on Which Responsible Persons are Accustomed to Rely in the Conduct of Serious Affairs?



When considering forensic evidence, Manning v. DMV (1998) 61 Cal.App.4th 273, quoting Government Code §11513(c), indicates DMV should ask — Is it "the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs?"



If the blood test — drawn by an unlicensed person not employed by a clinical laboratory — the sort of evidence on which the Department is accustomed to rely in the conduct of serious affairs?



Breaking the law to enforce it grates shudderingly on the sensibilities of responsible-thinking people.



C. Does a Blood Test Record Cannot Support a .08% BAC Finding?



"Hearsay evidence may be used for the purpose of supplementing or explaining other evidence but over timely objection shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions." [Gov Code §11513(d); Lake v. Reed (1997) 16 Cal.4th 448, page 458]



In other words, hearsay is always admissible at a DMV hearing. But hearsay may not be used as the sole basis for a DMV decision unless some statutory hearsay exception applies which would make it admissible in a civil proceeding.



The statutory hearsay exception [Evid. C. §1280(c)] does not apply when the unauthorized source is not trustworthy. Therefore, an inadmissible alcohol report may not be solely relied on to determine DMV's third, BAC issue.

The blood test record is not sufficient in itself to support a finding. Only an admissible record of a blood test can show evidence of blood alcohol to support a BAC finding.

If the blood technician was a person not included in Vehicle Code §23158(a) except as an unlicensed person under the limitations of Business & Professions Code and if the unlicensed person was employed by a company which not a clinical laboratory, then the blood drawer was not authorized to take blood in a California DUI case.

San Diego County DUI enforcement will be erecting California drunk driving sobriety checkpoints and conducting extra patrols this Memorial Day weekend as part of a multi-agency "Avoid DUI Campaign."

California drunk driving checkpoints will be set up in Oceanside, Escondido and San Diego. From 6 p.m. through midnight Monday, more California drunk driving police officers than usual will be patrolling Escondido, San Diego, Chula Vista, Coronado, Encinitas and National City looking for San Diego DUI drivers.

These checkpoints must be in compliance with California safeguards and guidelines.

Sheriff's deputies will be doing California drunk driving patrols in Encinitas, Del Mar, Imperial Beach, San Marcos, Solana Beach, Vista and the county's unincorporated areas.

The California Highway Patrol will also step up its efforts to stop drunk driving on the county's highways and freeways. About 80 percent of all available CHP officers will be working this weekend.

In other drunk driving news, the son of a Merced County District Attorney pleaded guilty Friday morning to all charges in connection with a vehicle crash that killed an Oakland man and critically injured his friend who remains in a coma.

Morse, 18, pleaded guilty in Sonoma County Superior Court to three felony charges, three misdemeanor charges and admitted 13 enhancements to the charges.

He faces 15 years in state prison when he is sentenced July 15. He traveled to Sonoma County for Friday's hearing from Florida where he is undergoing rehabilitation, his DUI defense attorney Chris Andrian said.

Morse pleaded guilty to felony counts of vehicular manslaughter while intoxicated but without gross negligence, DUI and DUI with a blood/alcohol level of 0.08 percent or more.

He also pleaded guilty to misdemeanor counts of being under age 21 and driving with alcohol in his vehicle, having a fraudulent or false evidence of age and identity and possessing less than an ounce of marijuana.

The enhancements he admitted concern causing great bodily injury or death to the three crash victims and having a blood/alcohol level of 0.15 percent or more.

He was visiting his friend Ryne Spitzer, 19, of Merced, a Sonoma State University student, on Feb. 14. The two were drinking alcohol at a party at SSU and later purchased alcohol from a Safeway store. They were returning to SSU from Sebastopol in a 1998 Volvo on Stony Point Road near state Highway 116 when Morse failed to stop at a red light and broad-sided a 1988 Honda that was driving east on Highway 116. The collision killed the Honda driver Alexander Ruiz, 25, of Oakland. Ruiz's passenger Vanessa King, 25, of Berkeley, suffered a broken arm and collarbone and facial lacerations. Spitzer suffered brain injuries and paralysis. Morse was not injured.

California criminal defense lawyer Andrian said Morse changed his not guilty plea "because it is the only right thing to do." "My client had absolutely no interest in contesting any of this and didn't want to prolong this for one additional day, he's remoreseful," California criminal defense attorney Andrian made clear.

"Attacking & Defending DUI Cases - Effective DUI Trial Advocacy that every DUI Lawyer Needs" has a new date: August 1, 2009. Learn the most recent changes in California DUI law, specific DMV laws and techniques, how to have a high technology DUI defense office, how to keep your client out of jail, the latest DUI trial techniques, how to deal with different DUI judges & Drunk Driving prosecutors throughout Southern California and much more.

San Diego DUI attorney Rick Mueller has been chosen by Attorney of the Year Felipe "Mad Dog" Plascencia to lecture at the Mexican American Bar Association's upcoming Annual DUI Seminar "Attacking & Defending DUI Cases" held at Loyola Law School in Los Angeles.

At the request of California DUI Lawyers Association President Vincent Tucci, San Diego DUI attorney Rick Mueller lectured at the California Attorneys for Criminal Justice Rules of the Road 2008 DUI Seminar.

San Diego DUI lawyer Rick Mueller is the only San Diego DUI criminal defense lawyer who is the Editorial Consultant for "California Drunk Driving Law," the most comprehensive reference for California DUI & DMV law. Known as California's Bible of DUI Defense, authored by legends Ed Kuwatch, Paul Burglin (San Francisco) and Barry Simons (Laguna Beach), the book features San Diego DUI attorney Rick Mueller's hard work.

San Diego DUI attorney Rick Mueller has been invited by leading California DUI criminal defense lawyer and author Donald Bartell to be a Contributing Editor of the hottest best-selling DUI Defense book: "Attacking and Defending Drunk Driving Tests."

To contact Rick today, simply go online and complete this Evaluation form.

San Diego travellers going north this weekend beware as the Summer’s First Holiday Weekend Mobilization as The Sheriff’s Department Plans California Drunk Driving Checkpoints and DUI Saturation Patrols.

The Orange County Sheriff’s Department and their contract city partners will be combining resources and sending out a unified message this Memorial Day weekend to holiday travelers, college graduates and communities enjoying local festivities that drunk driving won’t be tolerated. If you drive drunk, we will be looking for you. If you’re over the limit, you will be arrested.

The California Drunk Driving & DUI Task Force will be staffing a California Drunk Driving checkpoint in Lake Forest this weekend and deploying additional local DUI Saturation Patrols county-wide targeting those who still don’t heed the message to designate a sober driver before the celebrations begin.

The checkpoints are subject to strict guidelines and requirements in order to be legal. If illegal, the DUI evidence collected must be thrown out. If you need a San Diego DUI attorney, immediate help is available.

The enforcement campaign begins Friday night with a DUI/Drivers License Checkpoint in the City of Lake Forest. Local DUI Saturation Patrols will be out on Saturday night and Sunday night in the Cities of Mission Viejo, Rancho Santa Margarita, Lake Forest, Laguna Hills, Laguna Woods, Aliso Viejo, Laguna Niguel, Dana Point, San Juan Capistrano & San Clemente.

California Drunk Driving & DUI crackdowns are planned for the Independence Day weekend and during the National Summer DUI Mobilization effort Mid-August through Labor Day weekend.

A local Police Department will be conducting a San Diego DUI Checkpoint in the City of Escondido on Saturday night, May 23, 2009 from 6:00 PM until 12:30 AM, according to San Diego drunk driving attorneys.

The emphasis of the San Diego California DUI checkpoint will be to detect drunk drivers and those with suspended, revoked, or no driver license and to continue our education / awareness campaign on the dangers of driving impaired.

This San Diego California drunk driving checkpoint must follow strict guidelines established by the California Supreme Court. The roadblock is an effort to continue the Escondido Police Department’s commitment to traffic safety by reducing the number of people killed and injured in alcohol-involved collisions.

The San Diego California DUI checkpoint is being conducted in conjunction with the North County Law Enforcement Traffic Safety Council, the California Highway Patrol, and Mothers against Drunk Drivers.

If you find yourself in trouble, consider an aggressive San Diego DUI defense lawyer who will give a free evaluation today.

Folks in need of expungement can be helped by San Diego DUI attorney Rick Mueller who offers a free online drunk driving evaluation.

3 people were arrested on suspicion of California DUI - driving under the influence Friday night during Costa Mesa’s latest DUI checkpoint, according to San Diego DUI lawyers who follow this weak attempt at citizen interference.

More than 300 drivers were screened at the California DUI checkpoint at Newport Boulevard and 22nd Street. California DUI police interviewed 31 drivers for possibly being California DUI or under the influence. 8 drivers were ticketed for either not having a license or for driving with a suspended one. The California Office of Traffic Safety funds the city’s California DUI checkpoints. Costa Mesa police are scheduled to conduct another California DUI roadblock this Memorial Day Friday.

How to get a DUI off your record? expungement . This is something which can be done by by San Diego DUI lawyer Rick Mueller who offers an important online drunk driving consultation.

San Diego DUI lawyers report San Bernardino California drunk driving police arrested ten people and wrote numerous tickets during a weekend driver's license and Califiornia DUI sobriety checkpoint. This Califiornia DUI checkpoint was from 3 until 11 p.m. Saturday in the 1600 block of West Fifth Street.
Califiornia DUI officers impounded 69 vehicles and wrote 167 tickets. Califiornia DUI police said 50 motorists ticketed did not have a license or were driving on a suspended license. 4 of the 10 people arrested were suspected of Califiornia DUI - driving while under the influence. Police paid for the Califiornia DUI checkpoint through a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration, according to San Diego DUI lawyers.`

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Drunk driving attorneys from San Diego California twit that a couple of men died Friday night in a traffic collision on Interstate 5 in south Sacramento County California. Al Hu was driving a red Toyota Camry southbound on Interstate 5, north of Twin Cities Road, at about 10:15 p.m. when his vehicle allegedly crossed the divider and went into northbound traffic, according to San Diego DUI lawyers. The Camry struck a northbound white Honda Accord, driven by Reyes-Torres, causing major damage, and he and the other driver were pronounced dead on the road. The passenger riding in the Accord was treated for minor injuries and had severe shock. Te driver of the Toyota Camry appeared to be driving recklessly prior to the collision, according to witnesses interviewed by the California DUI officers, although investigators are not sure.

In Concord California, a driver suspected of drunk driving crashed into cars parked in the driveway of a Concord house early Thursday morning, sending one of the vehicles into the living room. No one inside the home and the driver of the SUV escaped with minor injuries but was arrested on suspicion of DUI and driving with a suspended license. The dui crash, which occurred about 4:20 a.m., may have threatened the home's foundation. California DUI police saw the SUV speeding at more than 70 mph, and began to pursue the vehicle. Instead of turning at West Street where Clayton Way ended, the Expedition plowed into a minivan and Nissan Altima parked in the driveway of the home's living room before lodging in the garage, spreading vehicle debris into neighboring driveways and striking a gas main.

In California DUI checkpoint new, Citrus Heights police report that one person was arrested on suspicion of driving under the influence and 20 citations were issued during a DUI-driver's license checkpoint Friday night on Auburn Boulevard, north of Auburn Oaks Court. The California drunk driving roadblock location on Auburn Boulevard was chosen as part of a collaborative effort with the Roseville Police Department, which conducted a checkpoint on northbound Auburn Boulevard at Whyte Avenue. DUI operations are funded by a grant from the California Office of Traffic Safety.

DUI lawyers in San Diego report a man was arrested early Friday morning on suspicion of drunk driving following a rollover crash in Santee. The San Diego DUI solo crash occurred on Magnolia Avenue, near Princess Joann Road, around 12:30 a.m., according to San Diego County criminal defense attorneys. The man suffered minor injuries but a 14 yr. old girl in the passenger seat was not injuried.

If you find yourself arrested for a San Diego DUI or drunk driving charge, you may want an attorney who only handles those types of cases. Consider an online consultation today.

Worried about a drunk driving stop? San Diego DUI Specialist Rick Mueller is a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as the "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California. 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 in California on May 30th. There's a free San Diego County Drunk Driving Defense Survey to find out your best strategy. Here's a taste:

Video of San Diego DUI / DMV Attorney

Drunk Driving lawyers who handle San Diego DUI defense cases in California are told Orange County police will conduct a DUI checkpoint in Costa Mesa on Friday night until early Saturday. California Drunk Driving police say the most effective way to prevent traffic-related injuries is to not drink and drive. California DUI cops are asking for the public’s help this weekend to report California DUI / drunk drivers.

Beginning 8 p.m. to 2 a.m., Costa Mesa California DUI police will screen drivers on northbound Newport Boulevard at 22nd Street to educate drivers about the dangers of drinking and driving and driving without a valid license. Money for the California DUI checkpoint is usually provided by the California Office of Traffic Safety without any apparent funding limits.

Criminal attorneys in San Diego California who handle DUI cases always wonder why cops are vying for the most drunk driving arrests? Awards & promotions perhaps.

Mothers Against Drunk Drivers with awards during a brief ceremony today. This California DUI award event, held at the California Highway Patrol's Merced area office, applauded officers who made 25 or more DUI arrests in 2008.

The event, held at the California Highway Patrol's Merced area office, recognized officers who made 25 or more DUI arrests in 2008. California DUI enforcement agencies that were recognized included CHP, Merced police, Los Banos police and Atwater police. The officers received certificates and pins for their efforts in taking intoxicated drivers off the roadways in 2008.

MADD says statistics show that when DUI arrests go up, the number of California DUI alcohol-involved crashes probably go down.

If you or a loved one are facing serious California DUI consequences, contact Rick Mueller at 1 800 THE LAW DUI.

Filed 6/27/07; pub. order 7/9/07 (see end of opn.)






COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



DALE HILDEBRAND,

Plaintiff and Appellant,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Respondent.
D048540



(Super. Ct. No. GIC 854885)


APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed.

Plaintiff Dale Hildebrand appeals the trial court's judgment denying his petition for writ of mandate, upholding the administrative suspension by respondent, the Department of Motor Vehicles (DMV), of his driving privileges. (Veh. Code, § 13353; Code Civ. Proc., § 1094.5.) Hildebrand contends there was insufficient admissible evidence introduced at the DMV's administrative hearing to establish he was driving at the relevant time because the only such evidence introduced at the hearing was the inadmissible hearsay statement of a non-peace officer.
Hildebrand further claims the evidence was insufficient to support the trial court's finding that he had refused to complete a chemical test after appropriate admonishment, and therefore suspension of his license should be set aside.
We conclude the trial court's decision to deny the petition for writ of mandate was based on substantial evidence and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Arrest
Around 2:30 a.m. on July 17, 2005, Fire Department Engine 3 was returning to the station when its occupants observed a vehicle stuck on the train tracks in the 1100 block of West Laurel Street. Fire captain G. Uzdavines approached the vehicle while the driver, later identified as Hildebrand, was revving the engine in an attempt to drive off the tracks, which was causing the right wheel to spin and sling gravel. Uzdavines helped Hildebrand, the only occupant, out of the car and to the sidewalk in case a train came along. Hildebrand appeared to him to be too intoxicated to walk.
Captain Uzdavines then reported to the San Diego Police Department (SDPD) that a suspected drunk driver, Hildebrand, had driven his car onto, and become stuck on, train tracks. Officer D. Brackrog responded to the scene first and Uzdavines informed the officer of what had happened. At approximately 3:05 a.m., Officers S.J. Samoncik and H. Hernandez of the traffic unit came to the scene, and Samoncik took over the investigation. Brackrog told Samoncik where Hildebrand was and Samoncik approached Hildebrand, who was leaning against a fence railing with his head slumped forward. Samoncik immediately noticed signs of Hildebrand's intoxication, including an odor of alcohol coming from his breath and person, bloodshot and watery eyes, drooping eyelids, and the appearance that he was about to fall asleep on his feet. After Samoncik introduced himself, Hildebrand told the officer he was entitled to professional courtesy because his roommate was a vice detective.
Officer Samoncik administered a series of coordination tests. In the gaze nystagmus test, Hildebrand was unable to smoothly follow Samoncik's finger as the officer moved it from right to left. Samoncik then asked Hildebrand to step off the fence rail. Hildebrand took an exaggerated step forward onto the toe of Samoncik's boot. Samoncik then administered a one-leg stand test, and Hildebrand immediately lost his balance and started to fall. Determining Hildebrand was intoxicated for the purposes of driving, Officer Samoncik placed him under arrest and assisted him to the patrol car.
Hildebrand was transported to SDPD headquarters where a chemical test was required for determining his blood alcohol content (BAC). Hildebrand chose a breath test but was unable to complete all portions of the test. His first sample showed a BAC of .21 percent, however, he could not provide a second sample. Numerous attempts to complete a second breath sample were taken, but all failed because Hildebrand puffed out his cheeks while placing his tongue on the end of the mouthpiece, and he would not blow hard enough to make the machine sound for 8-10 seconds. After his sixth attempt, Hildebrand stated "I'm blowing as hard as I can. If that's not good enough . . . too bad. And I'm not taking any other tests."
Officer Samoncik voided the test and explained to Hildebrand that he was still required to submit a sample and because he could not complete the breath test, he was required to give a blood sample. Hildebrand responded "Fuck you . . . I'm not giving a blood sample. You got what you got now let me go!" When Samoncik tried to read the refusal admonishment on the back of the "Admin Per Se" form, Hildebrand continued his tirade about professional courtesy and insisted that he wanted his lawyer there "right fucking now!" At that point, Samoncik informed Hildebrand that he was refusing to submit to a blood test and explained his options after refusing -- Hildebrand could either voluntarily provide a sample or a forced blood draw would be taken. In response, Hildebrand again insisted on professional courtesy and his lawyer being called and present.
Officer Samoncik notified the watch commander that Hildebrand was going to require a forced blood draw and placed him in the secure chair. Samoncik again read the refusal admonishment to Hildebrand. Thereafter, a forced blood draw was taken, which revealed that Hildebrand had a BAC of .22 percent. In the course of the arrest, Hildebrand was served with an administrative per se suspension/ revocation order, suspending his license for two years.
B. Administrative Hearing
On August 25, 2005, an administrative per se hearing was held on the elements of an implied consent violation. The reports were submitted and Hildebrand testified about his efforts to complete the breath test. On September 26, 2005, the DMV issued Hildebrand a notification of findings and decision informing him that the evidence indicated that he had refused to complete a chemical test when requested to do so by a police officer. Specifically, the DMV determined: i) the police officer had reasonable cause to believe Hildebrand was driving a vehicle; ii) Hildebrand was placed under lawful arrest; iii) Hildebrand was told that his driving privileges would be suspended or revoked if he refused to complete the required testing; and iv) Hildebrand refused or failed to complete the chemical test or tests.
C. Mandamus Proceedings and Ruling
On October 4, 2005, Hildebrand filed a petition for writ of administrative mandamus challenging the decision to suspend his license. (Code Civ. Proc., § 1094.5.) He claimed he never refused to take a chemical test and there was no admissible evidence that he was driving the vehicle. On February 23, 2006, a hearing was held and the court denied Hildebrand's petition. On May 2, 2006, Hildebrand filed a notice of appeal.
DISCUSSION
I
STANDARD OF REVIEW
In ruling on a petition for writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, whether the weight of the evidence supported the administrative decision. (Lake v. Reed (1997) 16 Cal.4th 448, 456 (Lake).) The parties do not dispute that the superior court appropriately utilized the independent judgment test in deciding the application for writ of mandate following the order of suspension. (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1233; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817, 824 (Fukuda).) Under the independent judgment test, the court determines whether the administrative hearing officer abused his or her discretion because the findings are not supported by the weight of the evidence. (Id. at pp. 816-817.) The administrative findings come before the superior court with a "strong presumption of correctness," and the burden rests on the petitioner to establish administrative error. (Id. at p. 817.)
On appellate review of the superior court's exercise of its independent judgment, this court will sustain the court's findings if they are supported by substantial evidence. (Fukuda, supra, 20 Cal.4th at p. 824.) We resolve all conflicts in favor of the DMV, as the party prevailing in the superior court, and give it the benefit of all reasonable inferences in support of the judgment. (Pasadena Unified School Dist. v. Commission on Professional Competence (1977) 20 Cal.3d 309, 314.) We do not substitute our deductions regarding the record for those of the superior court. (Ibid.) " ' "We may overturn the trial court's factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]' " [Citations.]" (Lake, supra, 16 Cal.4th at p. 457.)
In a case in which the pertinent facts are not in conflict and the only issues presented are an interpretation of a statute or regulation, an appellate court is not bound by the trial court's legal conclusions. (Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1925-1926.) Here, however, the superior court analyzed the record, made credibility determinations, and applied the law to the facts as established in that manner. Accordingly, we should give the trial court appropriate deference with respect to its views on whether the administrative findings were supported by the weight of the evidence. (Fukuda, supra, 20 Cal.4th 805, 816-817.)
II

SUFFICIENT ADMISSIBLE EVIDENCE WAS INTRODUCED AT THE DMV
ADMINISTRATIVE HEARING TO ESTABLISH HILDEBRAND WAS DRIVING

A. Issues Presented

Hildebrand contends insufficient admissible evidence was introduced at the DMV's administrative hearing to establish he was driving. Specifically, he claims the observations of Fire Captain Uzdavines contained in Officer Samoncik's sworn "Officer's Statement" and in his unsworn arrest report are inadmissible to prove he was driving.
To justify suspension of Hildebrand's driving privilege, it is the DMV's burden to prove that Officer Samoncik had reasonable cause to believe that Hildebrand was driving in violation of sections 23152 or 23153. (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638 (Gananian).) In meeting its burden at the administrative level, the DMV may present "[a]ny relevant evidence . . . if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions." (Gov. Code, § 11513, subd. (c).) "A police officer's report, even if unsworn, constitutes 'the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs.' " (Lake, supra, 16 Cal.4th at p. 461; see MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 158-159.) Moreover, the DMV may use hearsay evidence ". . . for the purpose of supplementing or explaining other evidence . . . ." (Gov. Code, § 11513, subd. (d).) However, hearsay evidence is not ". . . sufficient in itself to support a finding unless it would be admissible over objection in civil actions." (Gov. Code, § 11513, subd. (d); Gananian, supra, 33 Cal.App.4th at p. 640.)
In this case, the DMV offered two pieces of evidence to prove Hildebrand was driving: (i) Officer Samoncik's sworn "Officer's Statement" and (ii) Samoncik's unsworn arrest report. Both documents included statements that Captain Uzdavines said Hildebrand was the driver. In the "Officer's Statement," Samoncik checked the box stating that Uzdavines observed Hildebrand driving at the time of arrest. In the unsworn arrest report, Samoncik stated Uzdavines saw the vehicle, driven by Hildebrand, stuck on the railroad tracks, and Uzdavines saw Hildebrand, the only occupant, in the driver's seat and helped him to the sidewalk. Additionally, Hildebrand answered questions at the time of the arrest about where he was going and why he got stuck on the tracks. In response to the question "where are you going," he answered "home." In giving his "explanation for driving" and why he became lodged on the tracks, he told Samoncik he "took a wrong turn."
In challenging the DMV's evidentiary showing, Hildebrand argues that the hearsay statements of Captain Uzdavines "would not be admissible over objection in any civil action and thus [are] not [] admissible . . . ." The DMV responds that the "Officer's Statement" and unsworn arrest report, which included Captain Uzdavines's statements, would be admissible in a civil action under the public employee records exception to the hearsay rule to establish the fact of driving. (Evid. Code, § 1280) Furthermore, DMV argues Captain Uzdavines's statements would be admissible for the purpose of supplementing or explaining his admissions under Government Code section 11513 administrative rules. We discuss those statutory arguments separately.
B. Evidence Code Section 1280 Principles
In analyzing these issues, we are mindful that they arose in an administrative hearing context, and they involve several layers of reports and statements by public safety employees acting within the scope of their duties. Pursuant to Evidence Code section 1280, we agree with the DMV that the "Officer's Statement" and unsworn arrest report each qualifies as an admissible public employee record in the administrative hearing, even to the extent that each reports Uzdavines' personal observations. These reports are each sufficient to prove that Hildebrand was driving. Evidence Code section 1280 makes admissible a writing that records an act, condition, or event if "(a) [t]he writing was made by and within the scope of duty of a public employee; [¶] (b) [t]he writing was made at or near the time of the act, condition, or event; and [¶] (c) [t]he sources of information and method and time of preparation were such as to indicate its trustworthiness."
"The object of this hearsay exception 'is to eliminate the calling of each witness involved in the preparation of the record and substitute the record of the transaction instead. [Citations.]' [Citation.] Accordingly, for the exception to apply, '[i]t is not necessary that the person making the entry have personal knowledge of the transaction. [Citations.]' [Citation.] Assuming satisfaction of the exception's other requirements, '[t]he trustworthiness requirement . . . is established by a showing that the written report is based upon the observations of public employees who have a duty to observe the facts and report and record them correctly.' [Citation.]" (Gananian, supra, 33 Cal.App.4th at pp. 639-640; fns. omitted.)

In McNary v. Department of Motor Vehicles (1996) 45 Cal.App.4th 688 (McNary), the court held that hearsay statements of one officer, incorporated in the otherwise admissible report of another officer, are admissible under Evidence Code section 1280 in an administrative hearing to establish whether a licensee was driving. (Id. at p. 695.) In rejecting competing case law, the court in McNary relied on Gananian, supra, 33 Cal.App.4th 634, in which the court determined that to qualify as an admissible exception to the hearsay rule within the meaning of Evidence Code section 1280, a declarant's personal observation is not always required. (McNary, supra, at p. 695.)
Accordingly, a public employee's observations about a licensee's driving, incorporated into the report of a police officer who did not have personal knowledge of the licensee driving, were found admissible under the public employee records exception in an administrative hearing context. (McNary, supra, 45 Cal.App.4th at p. 695.) Therefore, those observations could be considered as competent evidence establishing that the licensee was driving the vehicle. (Ibid.) Hildebrand argues the present case is distinguishable because, unlike in Gananian, supra, 33 Cal.App.4th 634, where the observations were made by a police officer, the observations in this case were "made by a non peace officer." However, there is no principled reason for affording different treatment in the administrative hearing context to statements made in their official capacities by police officers, firefighters, or similar public safety officials charged with

duties relating to public safety and duly reported to and by each other. We draw this conclusion from Evidence Code sections 1280 and 195. The public employee records exception is not limited to police officers. (See Evid. Code, § 1280, subd. (a) ["within scope of duty of a public employee"].) " 'Public employee' means an officer, agent, or employee of a public entity." (Evid. Code, § 195.) Moreover, the rationale of Fisk v. Department of Motor Vehicles (1981) 127 Cal.App.3d 72, applies here:
"[T]he essential 'circumstantial probability of trustworthiness' justifying the common law exception to the hearsay rule for official statements 'is related in its thought to the presumption that public officers do their duty. When it is a part of the duty of a public officer to make a statement as to a fact coming within his official cognizance, the great probability is that he does his duty and makes a correct statement . . . . The fundamental circumstance is that an official duty exists to make an accurate statement, and that this special and weighty duty will usually suffice as a motive to incite the officer to its fulfillment . . . . It is the influence of the official duty, broadly considered, which is taken as the sufficient element of trustworthiness, justifying the acceptance of the hearsay statement.' [Citation.]" (Fisk, supra, 127 Cal.App.3d at pp. 78-79.)

These principles are applicable to this case. In reporting his personal observations to the reporting police officer, Captain Uzdavines was acting pursuant to his duty as a fire captain to observe the facts and report them correctly. Because Hildebrand's vehicle, which was stuck on the train tracks, presented a serious danger to himself and others, Uzdavines as the first to respond had a duty to make sure Hildebrand was extricated from the vehicle and to notify the proper authorities -- this was classic public safety activity. Hildebrand offered no contrary evidence. Nor did he offer any evidence to suggest that Uzdavines was not performing his duty at that time. Accordingly, both of Samoncik's reports of these events qualified as admissible public employee records even to the extent that they reported Uzdavines's observations. This constituted adequate proof that Hildebrand was, in fact, driving.
C. Government Code Section 11513 Hearsay Principles
Even if Captain Uzdavines's hearsay statements were considered to be inadmissible under Evidence Code section 1280 to establish that Hildebrand was driving, we next determine whether Uzdavines's observations may be admitted to supplement or explain Hildebrand's own admissions.
Under Government Code section 11513, subdivision (d), evidence in an administrative hearing may include "[h]earsay evidence . . . for the purpose of supplementing or explaining other evidence . . . ." Contained in Samoncik's unsworn arrest report, in addition to other statements, is Hildebrand's admission he was driving. In response to the question "where are you going," he answered "home." In giving his "explanation for driving" and why he became lodged on the tracks, he told Samoncik he "took a wrong turn." Hildebrand now contends there is ambiguity as to the meaning of the responses and who made the statements. However, those questions and answers are found under the arrest report form's heading "interview," and thus, Hildebrand's statements are excepted from the hearsay rule as party admissions. (Evid. Code, § 1220.) Any ambiguity of the meaning of those statements was properly clarified through the admission of evidence to supplement or explain Hildebrand's admissions. (Gov. Code, § 11513, subd. (d).) This included Uzdavines's observations of the circumstances of the discovery of Hildebrand's car on the tracks. Accordingly, those observations are admissible under Government Code section 11513, subdivision (d) to "supplement[] or explain[]" Hildebrand's own admissions.
In sum, we conclude the record adequately supports the trial court's implied finding that Hildebrand was driving. Fire captain Uzdavines's reported observations were properly admitted and considered in the administrative hearing because (i) Samoncik's "Officer's Statement" and unsworn arrest report qualified as admissible public employee records even to the extent that they reported Uzdavines's observations and (ii) Hildebrand's admissions recounted therein come within the party admission exception to the hearsay rule, thereby permitting the introduction of the other evidence (Uzdavines's observations) to explain and supplement his admissions about driving.
III

SUFFICIENT EVIDENCE WAS PRESENTED TO SUPPORT THE
TRIAL COURT'S FINDING THAT HILDEBRAND REFUSED A CHEMICAL TEST

Hildebrand next contends insufficient evidence was presented to establish that he was properly admonished about his choice of a blood or breath test before any of the tests were administered, or before he refused to complete a test. However, Hildebrand's contention has no merit.
"[T]he law of implied consent mandates that an arrestee is required to submit to and complete one of the three tests upon their first having been offered to him by an arresting officer. [¶] . . . [¶] . . . It is the initial refusal which forms the basis for suspension of the driver's license under Vehicle Code section 13353. [Citation.] Once the driver refuses to take any one of the three chemical tests, the law does not require that he later be given one when he decides, for whatever reason, that he is ready to submit. [Citations.] [¶] . . . Simply stated, one offer plus one rejection equals one refusal; and, one suspension." (Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283; see People v. McHugh (2004) 119 Cal.App.4th 202, 212 (McHugh).)
Here, prior to completing or attempting any test, Officer Samoncik told Hildebrand that he had a choice of tests -- "Mr. Hildebrand chose a breath test but was unable to complete the test." After the failed test, Samoncik read him the admonishment about implied consent. Hildebrand argues that he was not "warned that his failure to provide an adequate breath sample or his failure to complete one of the required tests would result in the suspension of his driving privileges until after he had attempted to complete one of the tests at the direction of the arresting officer." He argues this delay in admonishment undermines any refusal finding. However, Officer Samoncik was required only to inform Hildebrand that he had a choice of tests to take, prior to administering any test, and Samoncik did inform Hildebrand of this choice. (McHugh, supra, 119 Cal.App.4th at pp. 211-212.) Hildebrand understood a test was required and made several attempts but failed to complete the breath test. Officer Samoncik then read the refusal admonishment to Hildebrand. This reasonably satisfied the purpose of the required admonishment as there was no need to repeat it for each test. Hildebrand cannot show Samoncik misinterpreted his responses to the testing request. (See Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517-1518.)
Hildebrand nevertheless claims that Officer Samoncik was obligated to offer him, after the failed breath test, a new choice of tests. His theory appears to be that when he then refused the blood test, he was actually choosing a breath test again. Alternatively, he did not refuse "all chemical tests." These interpretations are not supported by the record. Hildebrand chose to take a breath test. When the breath test was offered, it was outside Officer Samoncik's knowledge that Hildebrand apparently would not cooperate and would intentionally frustrate the officer's administration of the test. When Samoncik asked again, Hildebrand then said "You got what you got now let me go!" and continued to object. The officer could reasonably interpret this as a refusal to complete any offered tests.
Accordingly, substantial evidence supports the trial court's finding that Hildebrand refused a chemical test because Hildebrand was required to submit to and complete one of the three tests after he was offered a choice of tests, but did not do so voluntarily.
Finally, the Supreme Court recently resolved the issue that proof of actual driving is not an essential element of an implied consent license suspension case. In Troppman v. Valverde (2007) 40 Cal.4th 1121, the Supreme Court decided that a person's driver's license may be suspended under section 13353 for refusal to take or complete a chemical test as required by the "implied consent" statute (see § 23612), without proof being required that the licensee was actually driving at the time of the alleged offense. Hildebrand only claims that there is insufficient evidence to establish he refused a chemical test after being told he had a choice of tests, but the record is to the contrary. In any case, there is ample evidence in the record showing the arresting officer had reasonable cause to believe Hildebrand was driving the vehicle while under the influence of alcohol. The trial court correctly denied Hildebrand's petition.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to DMV.


HUFFMAN, Acting P. J.

WE CONCUR:



McINTYRE, J.



O'ROURKE, J.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


DALE HILDEBRAND,

Plaintiff and Appellant,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Respondent.
D048540



(Super. Ct. No. GIC 854885)

ORDER CERTIFYING OPINION FOR PUBLICATION


The opinion filed June 27, 2007 is ordered certified for publication.
The attorneys of record are:
William D. Holman, for Plaintiff and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Jacob A. Appelsmith, Senior Assistant Attorney General, Chris A. Knudsen and Michael J. Early, Deputy Attorneys General, for Defendant and Respondent.



HUFFMAN, Acting P. J.

Criminal defense lawyers specializing in San Diego DUI cases report what happened last weekend in San Diego County's Lemon Grove DUI / Drunk Driving Checkpoint:

Here's the San Diego DUI Checkpoint Activity:

Vehicles Contacted & checked to see if San Diego DUI : 1198

Vehicles Through Without San Diego DUI investigative Contact: 34

Total Vehicles Through: 1232

Vehicles Sent Into Secondary: 223

San Diego DUI Fst’S Given: 8

San Diego DUI Arrest Total: 2

Sheriff’S Morning News Report
Lemon Grove Sheriff’S Station
Traffic Division
Dui/Driver’S License Checkpoint
Dui Saturation Patrol
Date: May 8, 2009
Time: 1900 – 0200 (Briefing 1900)
Location: E/B Broadway, 7000 Block
Agencies: Sdsd

What you must do within 10 days of being arrested in San Diego as beware of California DMV:

10. If you need to save your driver's license or privileges, your San Diego drunk driving attorney has only ten (10) calendar days to contact DMV!



Do not schedule yourself. If you contact DMV to schedule a date conflicting with your attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice. There is no rush as long as your attorney contacts DMV by the 10th day from your arrest.



9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact an attorney ASAP.



8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.



7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.



6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.



5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.



If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.



4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.



3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)



Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.



2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!



1. All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!






Click on below sites for more information or to contact a San Diego DUI Lawyer who can help:

San Diego DUI

Video of San Diego DUI / DMV Attorney

Cited for a DUI or drunk driving offense in San Diego?

You need the best San Diego DUI attorney available to defend your San Diego drunk driving case. An experienced San Diego DUI criminal defense attorney will provide the most thorough investigation and professional handling of your case from start to finish. With a goal to protect your legal rights and reduce penalties to the minimum, you San Diego DUI criminal defense lawyer will keep you advised every step of the way.



In order to properly defend your San Diego DUI case and give you the best chance to get back to your life, it is important to seek San Diego DUI legal representation immediately.



Retaining top San Diego drunk driving legal representation will ensure any necessary bail posting as soon as possible to reduce initial San Diego jail time.



The best San Diego DUI defense attorney will investigate all San Diego drunk driving arrests to ensure that the client’s legal rights were preserved and the San Diego county police officer following proper San Diego procedure.



If your San Diego DUI criminal lawyer identifies an illegal action or misconduct by the San Diego police officer, it could be grounds for San Diego DUI case dismissal.



However, if all proper San Diego procedures were followed - an unlikely event - your San Diego DUI attorney will nonetheless defend your San Diego drunk driving case to the most professional extent.



A first San Diego DUI / drunk driving offense is the best opportunity for your San Diego DUI defense lawyer to vigorously defend and to request a reduced San Diego DUI sentencing.



A premier San Diego DUI attorney will be one with over 24 years of experience and expertise in San Diego California drunk driving cases. Excellent San Diego court outcomes and satisfied clients will also be illustrative of the talent of your San Diego DUI / drunk driving criminal attorney.



San Diego DUI law firms provide free initial consultation to learn more about your case. To find the best San Diego DUI criminal defense lawyer, visit www.SanDiegoDrunkDrivingAttorney.net .

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


Or try a Free California DUI Evaluation at http://www.sandiegodrunkdrivingattorney.net/survey.html .







On May 30, 2009, Rick will speak at the Annual DUI Seminar in connection with the American Bar Association at Loyola Law School in Los Angeles. 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.



If you need to save your driver's license or privileges, your attorney has only ten (10) calendar days to contact DMV!





All a DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!

Video of San Diego DUI / DMV Attorney

Click to contact San Diego DUI Attorneys:

San Diego DUI Attorney

San Diego Sheriff’s Department Vista Traffic Division will be conducting a San Diego DUI/Drivers License checkpoint during the evening of Saturday May 9th, 2009 in the City of Vista, according to San Diego DUI lawyers. In an effort to reduce the number of persons killed and injured in alcohol involved crashes, San Diego California DUI checkpoints are conducted to identify offenders and get them off the street, as well as educate the public on the dangers of impaired driving.

California Drunk Driving Laws, Penalties & Fines

San Diego Sheriff’s Department goes after DUI Drivers with Checkpoint in Vista tonight.

Do I Really Need a San Diego DUI Attorney?

DUI defense lawyers out of San Diego are told a California man who killed a family of six in a DUI / drunk driving accident has been sentenced to 60 years to life in prison today.

In March, 28-year-old Bradley Bledsoe was convicted on six counts of second-degree murder, hit and run, California DUI and driving in violation of a restricted license. He was arrested in September of 2006 outside his home after fleeing the scene of the California DUI crash, which left three generations of an Olivehurst family dead. A California DUI report by the California Highway Patrol said Bledsoe was driving his sport utility vehicle on Highway 70 south of Marysville when he rear-ended the family's SUV which had been returning from a relative's baptism, causing it to spin and slam into a eucalyptus tree.

Former Chicago Bear Quarterback Bob Avellini was set to go on trial for a 2007 DUI / drunk driving arrest, but the officer who pulled him over wasn't able to make it to court to testify because of the weather, and as a result the judge dismissed the case.

That is NOT how things work in San Diego California if you go to trial on a DUI case.

It's not the first time Avellini has been lucky enough to avoid charges after a DUI arrest. According to the Chicago Tribune, Avellini has been arrested four times for DUI in suburban Chicago DuPage County, and on three of those occasions the charges were dropped.

San Diego DUI Specialist Rick Mueller is a Top-Rated San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. Known as the "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone.

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 in California.



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.