San Diego California DUI lawyer commentary

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

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

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

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

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

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

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

Do you know what your local and state laws are regarding drinking alcohol and using a wheeled vehicle of any kind? Get the scoop.

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

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

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

www.SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI attorney news

May 10, 2008

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

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

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

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



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

http://www.sandiegodrunkdrivingattorney.net

http://www.sandiegoduilawyer.com

http://www.sandiegoduihelp.com

http://www.sandiegodui.com

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

San Diego DUI and DMV Penalties http://www.sandiegoduilawyer.com/penalty.html

San Diego Criminal Defense Attorney - San Diego DUI Lawyer news

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

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

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

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

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

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

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

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

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

San Diego DUI criminal defense attorney news

May 10, 2008

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

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

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

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

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


www.sandiegodrunkdrivingattorney.net/blog

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

May 9, 2008

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

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

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

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

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

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

San Diego DUI criminal defense attorney news

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

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

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

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

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

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

Aleve shows up as amphetamines.

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

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

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

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

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

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

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

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

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

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

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

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

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

San Diego DUI Criminal Defense Attorney news

www.SanDiegoDrunkDrivingAttorney.net/blog

May 8, 2008

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

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

SOFT / AAFS Forensic Laboratory Guidelines 2006

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

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

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

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



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

Mandatory Guidelines for Federal Workplace Drug Testing Programs


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

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

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

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

49 CFR Part 40

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

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

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

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


www.SanDiegoDrunkDrivingAttorney.net

San Diego DUI attorney news

May 8, 2008

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

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

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

San Diego DUI criminal defense lawyer news

May 7, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B.

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

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

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

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

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

C.

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

San Diego DUI criminal defense attorney jockey news

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

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

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

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

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

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

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

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

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

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

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

May 8, 2008

Governor Withdraws DUI Bill

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

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

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

www.sandiegodrunkdrivingattorney.net/articles

May 7, 2008


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

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San Diego DUI criminal defense attorney news from South Carolina

May 6, 2008

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

www.SanDiegoDrunkDrivingAttorney.net/articles

San Diego DUI attorney news

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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,
Plaintiff and Respondent,

v.

RAYMOND BRYANT,

Defendant and Appellant.
B201689
(Los Angeles County

Super. Ct. No. KA077913)


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

Tia Fisher, Judge. Affirmed.

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

No appearance for Plaintiff and Respondent.

______________________________

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

PERLUSS, P. J. WOODS, J.



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

San Diego DUI Criminal Defense Attorney news

May 6, 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

San Diego Drunk Driving Criminal Defense Lawyer Help



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



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



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




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



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



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

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San Diego DUI criminal defense attorney news

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

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

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

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

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

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

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

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

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

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

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

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


www.sandiegoduilawyer.com/blog

Drunk Boating

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

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

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

San Diego DUI attorney news

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

San Diego DUI criminal defense attorney news

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

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

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

Links to check out:

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

securetec.net (manufacturer)

pathtec.com.au (Australian distributor)

www.sandiegodrunkdrivingattorney.net/blog

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

Police & Critics Say Anti-Poleez Breath Mints Stink

5/2/08

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

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

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

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

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

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

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

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

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

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

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

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

Drucker, like many others say:

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

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

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

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

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

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

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

The mints contain a mixture of sweeteners and ammonium chloride.

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

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

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

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

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

San Diego DUI lawyer article

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



www.sandiegodui.com

San Diego DUI attorney news

Nonsense conflicts with Science sometimes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

San Diego DUI attorney news

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
State of Minnesota,
by Michael Campion, its
Commissioner of Public Safety,
Plaintiff,
vs.
CMI of Kentucky, Inc.,
a Kentucky corporation,
Defendant.
Civil Case No. 08-603 (DWF/AJB)
REPLY TO COUNTERCLAIM
Plaintiff State of Minnesota, by its Commissioner of Public Safety, Michael
Campion (“the State”), for its Reply to the Counterclaim asserted by Defendant CMI of
Kentucky, Inc. (“CMI”), states that, except as hereinafter expressly admitted, qualified or
otherwise answered, it denies each and every allegation in CMI’s Counterclaim. The
State further replies as follows:
I. Reply
1. In response to the allegations set forth in paragraph 62 of CMI’s Answer
and Counterclaim, the State admits that Michael Campion is the Commissioner of the
Minnesota Department of Public Safety, and admits that the State is a party in interest.
2. The State admits the allegations set forth in paragraph 63.
3. In response to the allegations set forth in paragraph 64, the State admits that
CMI is engaged in the manufacture, sale and support of breath alcohol testing products to
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 1 of 11
2
law enforcement professionals. The State further admits that CMI’s Intoxilyzer brand of
breath alcohol test instruments utilizes infrared spectrometry to detect and analyze the
presence of alcohol in a subject’s system. Upon information and belief, the State admits
that the Intoxilyzer has been approved by the National Highway Transportation Safety
Administration. Upon information and belief, the State admits that CMI sells its breath
alcohol testing equipment throughout the U.S. and around the world. With respect to the
remaining allegations set forth in paragraph 64, the State is without information sufficient
to form a belief as to the truth or falsity of those allegations, and therefore denies them.
4. The State admits the allegations set forth in paragraph 65.
5. In response to the allegations set forth in paragraph 66, the State admits that
in or about early 1997 the State awarded a contract to CMI, and since that time the State
has maintained over 200 Intoxilyzer instruments which are configured according to the
State’s specifications. Upon information and belief, the State admits that an existing
Intoxilyzer model was configured to meet the State’s needs and specifications. Upon
information and belief, the State further admits that this stock model Intoxilyzer, when
configured to the State’s specifications, has been referred to anecdotally by the State and
others as the “Minnesota model,” and that this same model has been referred to
anecdotally by CMI and others as the “Minnesota instrument.” With respect to the
remaining allegations set forth in paragraph 66, the State is without information sufficient
to form a belief as to the truth or falsity of those allegations, and therefore denies them.
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 2 of 11
3
6. In response to the allegations set forth in paragraph 67, the State denies that
in its response to the RFP, CMI informed the State that the options requested by the State
already existed in its standard Intoxilyzer model or were in the final stages of design. The
State affirmatively alleges that CMI informed the State that the options requested by the
State already existed or could be incorporated into a Minnesota configured
Intoxilyzer 5000 and meet the initial delivery requirement of thirty days after the award of
the contract. With respect to the allegation that CMI’s configuration of the Intoxilyzer
5000EN to conform to the State’s specifications did not require or result in the creation or
origination of any copyrightable material, the State responds that this allegation merely
sets forth a legal conclusion to which no responsive pleading is required. The State
denies any remaining allegations in paragraph 67.
7. The State admits the allegations set forth in paragraph 68.
8. In response to the allegations set forth in paragraph 69, the State admits that
pursuant to contract, CMI agreed to make its Owner’s Manual available to criminal
defendants, subject to a very brief, one-half page Confidentiality Agreement. With
respect to the remaining allegations set forth in paragraph 69, the State is without
information sufficient to form a belief as to the truth or falsity of those allegations, and
therefore denies them.
9. In response to the allegations set forth in paragraph 70, the State admits that
the source code is, in layperson’s terms, a computer program that has been written in a
“human readable” language. Upon information and belief, the State admits that the same
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 3 of 11
4
source code was used to program all of the Minnesota model Intoxilyzers currently in use
in the State of Minnesota. The State is without knowledge sufficient to form a belief as to
the truth or falsity of the remaining allegations in paragraph 70, and therefore denies
them.
10. The State is without knowledge sufficient to form a belief as to the truth or
falsity of the allegations set forth in paragraph 71, and therefore denies them.
11. In response to the allegations set forth in paragraph 72, the State
affirmatively alleges that CMI has made the source code to the Intoxilyzer available to
one criminal defendant in the State of Minnesota, but has refused to provide the State
with a copy of that same code. With respect to the remaining allegations set forth in
paragraph 72, the State is without knowledge sufficient to form a belief as to the truth or
falsity of those allegations, and therefore denies them.
12. In response to the allegations set forth in paragraph 73, the State denies that
it has erroneously asserted that it owns all or some part of the source code. The State
admits the remaining allegations set forth in paragraph 73.
13. The State admits the allegations set forth in paragraph 74.
14. In response to the allegations set forth in paragraph 75, the State admits that
CMI has not been a party to any implied consent or criminal DWI cases in the State of
Minnesota. The State affirmatively alleges that it has requested CMI’s intervention in
such cases, but that CMI has refused to intervene. With respect to the remaining
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 4 of 11
5
allegations in paragraph 75, the State responds that these are legal conclusions to which
no responsive pleading is required.
15. In response to the allegations set forth in paragraph 76, the State responds
that the allegation that Minnesota district courts have not acknowledged or addressed the
substantial risk of harm to the State’s testing program that would follow from
dissemination of the source code without appropriate controls is a legal conclusion to
which no responsive pleading is required. The State is without knowledge sufficient to
form a belief as to the truth or falsity of the remaining allegations set forth in paragraph
76 and, therefore denies them.
16. In response to the allegations set forth in paragraph 77, the State denies that
it does not own any part of the source code. The State admits the remaining allegations
set forth in paragraph 77.
17. The State denies the allegations set forth in paragraph 78.
18. In response to the allegations set forth in paragraph 79, the State
affirmatively alleges that in early 2006 it began requesting that CMI voluntarily provide it
with a copy of the source code to the Minnesota model Intoxilyzer. The State admits that
CMI initially refused to produce the source code to the State or to any other litigant in the
State of Minnesota. The State affirmatively alleges that while CMI has produced a copy
of the source code to one criminal defendant in Dakota County, it has refused to produce
the source code to the State. The State lacks information sufficient to form a belief as to
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 5 of 11
6
the truth or falsity of the remaining allegations in paragraph 79, and therefore denies
them.
19. In response to the allegations set forth in paragraph 80, the State admits that
CMI revised its policy regarding disclosure of the source code in September 2007, and
since then CMI has voluntarily offered to make the source code available subject to
litigants signing a specific Non-Disclosure Agreement and Protective Order. The State
lacks information sufficient to form a belief as to the truth or falsity of the remaining
allegations in paragraph 80, and therefore denies them.
20. The State denies the allegations set forth in paragraph 81.
21. The State admits the allegations set forth in paragraph 82.
22. The allegations set forth in paragraph 83 are legal conclusions to which no
responsive pleading is required.
23. The allegations set forth in paragraph 84 are legal conclusions to which no
responsive pleading is required.
24. The allegations set forth in paragraph 85 are legal conclusions to which no
responsive pleading is required.
25. The allegations set forth in paragraph 86 are legal conclusions to which no
responsive pleading is required.
26. In response to the allegations set forth in paragraph 87, the State admits that
CMI has not been a party to any of the actions in which a Minnesota district court ordered
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 6 of 11
7
the State to produce the source code. The State affirmatively alleges that CMI has made
no effort to intervene in any of those matters, despite requests from the State that it do so.
The State denies the remaining allegations set forth in paragraph 87.
27. The State admits the allegations set forth in paragraph 88.
28. The allegations set forth in paragraph 89 are legal conclusions to which no
responsive pleading is required.
29. In response to the allegations set forth in paragraph 90, the State admits that
CMI’s response to the Request for Proposal included a sample cover letter to attorneys, a
brief Confidentiality Agreement, and an affidavit to be executed by the requesting
attorney. The State further admits that the cover letter to attorneys specifically references
CMI’s Operator’s Manual. The State denies that the documents contained in the contract
between the State and CMI expressly limit the information that CMI would provide to
individual defendants to the Operator’s Manual. The State is without information
sufficient to form a belief as to the truth or falsity of the remaining allegations set forth in
paragraph 90.
30. In response to the allegations set forth in paragraph 91, the State admits,
upon information and belief, that CMI has offered to produce its Operator’s Manual to
criminal defendants when asked. The State denies the remaining allegations set forth in
paragraph 91.
31. The State denies the allegations set forth in paragraph 92.
Case 0:08-cv-00603-DWF-AJB Document 7 Filed 04/29/2008 Page 7 of 11
8
32. In response to the allegations set forth in paragraph 93, the State denies that
CMI has offered to provide it with a copy of the source code pursuant to a suitable Non-
Disclosure Agreement and Protective Order. The State