What if a San Diego DUI officer stops you and you have a valid out-of-state license?

What if your San Diego DUI lawyer is not present when the cop misinforms the driver that his or her (valid state license) would be suspended or revoked if the driver fails to submit to a California chemical test?

If you are in need of an aggressive San Diego California DUI criminal defense attorney, spend a few moments completing a free online consultation form today.

What does one state say about suppressing those test results after a top national drunk driving attorney raised some of these same questions?

Court of Appeals of Georgia

KITCHENS
v.
The STATE.
No. A02A1494.
Nov. 18, 2002.
Defendant was convicted in the Superior Court,
Douglas County, Emerson, J., of driving under the
influence of alcohol to the extent that she was a less
safe driver, failure to maintain lane, and driving
with an expired license. Defendant appealed. The
Court of Appeals, Pope, Senior Appellate Judge,
held that: (1) defendant's alcohol breath test results
were subject to suppression, and (2) evidence was
sufficient to support defendant's conviction for
driving under the influence of alcohol to the extent
that she was a less safe driver.
Affirmed in part and reversed in part.
West Headnotes
[1] Automobiles 48A 421
48A Automobiles
48AIX Evidence of Sobriety Tests
48Ak421 k. Advice or Warnings; Presence of
Counsel. Most Cited Cases
Defendant's alcohol breath test results were subject
to suppression in prosecution for driving under the
influence of alcohol to the extent that defendant
was a less safe driver; police officer incorrectly explained
the implied consent warnings to defendant
by overstating the legal limit of alcohol concentration
and incorrectly stating the consequences if defendant
refused to take the alcohol breath test, and
the misinformation may have affected defendant's
decision to consent to the alcohol breath test.
[2] Automobiles 48A 355(6)
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak355 Weight and Sufficiency of Evidence
48Ak355(6) k. Driving While Intoxicated.
Most Cited Cases
Evidence was sufficient to support defendant's conviction
for driving under the influence of alcohol to
the extent that she was a less safe driver; police officer
observed defendant's vehicle weaving repeatedly,
defendant smelled strongly of alcohol and
her eyes were bloodshot, defendant stumbled out of
her vehicle and could not maintain her balance
well, and defendant twice failed one of the field
sobriety tests.
**451 *416 Head, Thomas, Webb & Willis, William
C. Head, Atlanta, for appellant.
David McDade, Dist. Atty., Christopher R.
Johnson, Asst. Dist. Atty., for appellee.
*411 POPE, Senior Appellate Judge.
Defendant Mary Cloyd Kitchens was convicted
following a bench trial of driving under the influence
of alcohol to the extent that she **452 was a
less safe driver, failure to maintain lane, and driving
with an expired license. She appeals, arguing
that the trial court erred in admitting the results of
the state-administered breath test into evidence because
the implied consent warning read to her by
the arresting officer was misleading, inaccurate,
and coercive and that the evidence was insufficient
to support her conviction for “less safe” DUI.FN1
FN1. Kitchens does not challenge her convictions
for failure to maintain lane and
driving with an expired license.
As is relevant to this appeal, the transcript shows
the following: Officer Greg Holcomb of the Villa
Rica Police Department testified that on December
7, 2000, he received a call to be on the lookout for a
574 S.E.2d 451 Page 1
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

white Ford Explorer with Alabama license plates
traveling east on I-20. He spotted a vehicle matching
that description and, after verifying the license
plates and following the vehicle a “little way,” activated
his blue lights and flashing headlights. The
videocamera inside his patrol car was also activated.
Officer Holcomb testified that he decided to
activate his lights because the vehicle was
“weaving over the roadway, crossed the fog line,
also crossed the centerline,” and that he observed
the vehicle weave on numerous occasions. He continued
to follow the vehicle, which did not stop until
he pulled beside it and activated his siren.
Officer Holcomb requested license and insurance
information from the driver of the vehicle, defendant
Kitchens. Officer Holcomb testified that the
driver's license was issued by the State of Alabama
and had expired. The videotape shows that Officer
Holcomb remarked to Kitchens that her eyes were
bloodshot and that the odor of alcohol was
“extremely heavy, extremely heavy,” and that she
replied that she had just “taken some Listerine.”
Officer Holcomb *412 then requested that Kitchens
perform several field sobriety tests, based on
his observations of her driving, odor of alcohol, and
bloodshot eyes. Officer Holcomb testified and the
videotape of the stop shows that Kitchens stumbled
against the side of her vehicle as she was exiting
and that she could not correctly recite the alphabet.
Officer Holcomb also administered an Alco-Sensor
test, which registered positive for alcohol. Officer
Holcomb then placed Kitchens under arrest for
driving under the influence.
Officer Holcomb read Kitchens Georgia's Implied
Consent Warnings. While he was reading the warning,
Officer Holcomb informed Kitchens that if
“the results indicate an alcohol concentration of 10
grams or more,” her Georgia driver's license or
privilege to drive on Georgia highways may be suspended
for one year. After Officer Holcomb completed
the warning, he asked Kitchens if she would
submit to the state's test, and if she understood what
he had just stated to her. Kitchens responded, “I'm
not sure what you just said.” Officer Holcomb then
attempted to explain the notice and informed Kitchens
that her “license to drive in the State of
Georgia” would be suspended if she refused to take
the test, and “[i]f the results indicate ten or more,”
her license may be suspended. After this explanation,
Kitchens again told Officer Holcomb she was
not sure if she understood “exactly what you said,”
and subsequently indicated, “you have very much
confused me.” Officer Holcomb informed Kitchens
she had two choices, to take the test or not take the
test, in which case “you're automatically charged
with DUI and your license [is] going to be suspended.”
Kitchens then indicated that she would take
the test.
The results of the state's breath test indicated Kitchens'
blood alcohol level was 0.199. The trial
court denied Kitchens' motion to exclude the results
of the test and found her guilty of driving under
the influence to the extent that she was a less safe
driver.
[1] 1. Kitchens first argues that the trial court erred
by denying her motion to exclude the results of the
state-administered test because the implied consent
warning was misleading, inaccurate, and coercive.
As stated above, the videotape of the stop and arrest
shows that when Officer Holcomb read the implied
consent warning, he overstated the legal limit indicating
that it was 10 grams instead of 0.10 grams of
alcohol**453 concentration. The record further
shows that after Kitchens indicated she did not understand
the implied consent, Officer Holcomb
again incorrectly advised Kitchens that the legal
limit was 10 grams instead of 0.10 grams.
Moreover, Officer Holcomb also gave Kitchens incorrect
information concerning the consequences if
she refused to take the test. The transcript shows
that Officer Holcomb initially correctly informed
Kitchens, who held an Alabama driver's license,
that her Georgia *413 driver's license or privilege
to drive on the highways of this state would be suspended
for one year if she did not submit to the
574 S.E.2d 451 Page 2
258 Ga.App. 411, 574 S.E.2d 451
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state's test, but during his subsequent explanation of
her rights stated, “[s]o your second choice is to ...
not ... take that test. And once you do that, you're
automatically charged with a DUI and your license
[is] going to be suspended.” Kitchens then agreed
to take the test.
We find the trial court erred in failing to exclude
the test results in this case. Because the laws of this
state no longer require that the implied consent
warning be read exactly so long as the substance of
the notice remains unchanged, OCGA §
40-5-67.1(b)(3), we must now determine
whether the notice given was substantively accurate
so as to permit the driver to make an informed
decision about whether to consent to testing. In
Garrett v. Dept. of Public Safety, [237 Ga. 413,
415(2), 228 S.E.2d 812 (1976),] we recognized
that the purpose of the implied consent law is to
notify drivers of their rights so that they can
make informed decisions. Accordingly, we have
suppressed the results of chemical tests where the
driver was misinformed of his rights and where
that misinformation may have affected his decision
to consent. In State v. Coleman, [216
Ga.App. 598, 599, 455 S.E.2d 604 (1995),] for
example, we held that suppression was required
where an out-of-state driver was wrongly told
that he would lose his driver's license if he refused
testing. Likewise, we have suppressed evidence
of the driver's refusal to consent where that
refusal may have resulted from misleading information.
In State v. Terry, [236 Ga.App. 248,
511 S.E.2d 608 (1999),] for instance, we affirmed
the suppression of evidence of a driver's refusal
to take a blood test where police falsely informed
her that obtaining bond was a pre-condition to independent
testing. We agreed with the trial court
that the misinformation was confusing and could
have affected the driver's decision to refuse testing.
(Footnotes omitted.) State v. Becker, 240 Ga.App.
267, 271(2), 523 S.E.2d 98 (1999).
In this case, we cannot say that the substance of the
notice given was substantially accurate. When he
read the warning and when he explained it to Kitchens,
Officer Holcomb substantially altered the
substance of the notice by overstating the legal limit
of blood alcohol concentration to be 10 grams instead
of 0.10 grams. This court has previously recognized
that overstatement, as opposed to understatement,
of the legal limit of blood alcohol concentration
is the type of *414 misinformation that
might cause someone to submit to testing who
might otherwise refuse. See Maurer v. State, 240
Ga.App. 145, 147(2), 525 S.E.2d 104 (1999). The
state argues, however, that there is nothing in this
case to show that the erroneous overstatement of
the legal limit led Kitchens to submit to testing.
We find this argument unpersuasive.
“To accept the State's arguments, we must first find
that the [language concerning the legal limit] is
superfluous. This we refuse to do. We do not believe
substantial compliance means that it is permissible
to ignore completely the ‘particulars' of
the laws of this state or that it is permissible to
ignore statutory requirements as long as no harm
is shown. ‘The ... requirement is that when the
State seeks to prove the violation by evidence of
a chemical test, the State has the burden of
demonstrating compliance with the statutory requirements.’
(Cit.)”
State v. Hughes, 181 Ga.App. 464, 467, 352 S.E.2d
643 (1987). State v. Causey, 215 Ga.App. 85, 86,
449 S.E.2d 639 (1994).
We also find unavailing the state's reliance on State
v. Webb, 212 Ga.App. 872, 443 S.E.2d 630 (1994),
for the proposition that because Kitchens “was
simply confused,” no **454 harm has been shown.
The notice given in Webb was not inaccurate or
misleading, and Webb does not stand for the proposition
that misleading and inaccurate information
does no harm as long as the accused demonstrates
only general confusion or lack of understanding. As
the author of Webb subsequently made clear, erroneous
and misleading advice requires exclusion of
574 S.E.2d 451 Page 3
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

the state's test result. Allen v. State, 218 Ga.App.
844, 847(2), 463 S.E.2d 522 (1995).
Moreover, even assuming that drastically overstating
the legal limit of alcohol concentration had no
effect on Kitchens' decision to submit to the state's
test, the record discloses a clearer causal connection
between the officer misinforming Kitchens about
the consequences of her refusal to take the test and
her decision to submit to the test. As stated above,
Kitchens' decision to submit to the test occurred
immediately after Officer Holcomb misinformed
her that her driver's license, which was issued by
the State of Alabama, would be suspended if she refused
to submit to the test. As stated above, we
have previously recognized that misinforming the
holder of an out-of-state driver's license that refusal
to submit to the state's test would result in revocation
of the out-of-state license is the type of misleading
information which may affect the decision
to submit to the test, and may require suppression
of the test results. “Since the consent was based at
least in part on deceptively misleading information
concerning*415 a penalty for refusal, which the
State was unauthorized to implement, [defendant]
was deprived of making an informed choice under
the Implied Consent Statute. Accordingly, the test
results were rendered inadmissible.” Deckard v.
State, 210 Ga.App. 421, 423, 436 S.E.2d 536
(1993). See also State v. Coleman, 216 Ga.App.
598, 599, 455 S.E.2d 604 (1995). But see Rojas v.
State, 235 Ga.App. 524, 527-528(2), 509 S.E.2d 72
(1998) (misinformation about consequence of refusal
to take the state's test harmless because driver
had already refused to take test and misinformation
did not coerce driver to change decision and submit
to testing). And the fact that the officer initially
correctly informed Kitchens that her privilege to
drive on the highways of this state as opposed to
her out-of-state license would be revoked does not
change this result. In State v. Terry, 236 Ga.App. at
250, 511 S.E.2d 608 (1999), we held that inaccurate
and misleading information given in response to
questions about the implied consent notice may
lead to suppression of the state's test results, even
when the accused has previously been given an accurate
and complete notice.
Lastly, we also reject the state's argument that admission
of the test results did not give rise to harmful
error. The trial court, sitting without a jury, specifically
relied on the test results in reaching its
conclusion that Kitchens was a less safe driver,
stating, “[b]ased upon [the] result [of the state's
breath test], the court finds beyond a reasonable
doubt that she is guilty of the offense charged in
that the evidence shows the court that she was a
less safe driver. Her blood alcohol level was 0.199
which exceeds the legal limit significantly and the
evidence of her driving and personal demeanor revealed
that she was less safe to drive.” “ ‘The test
for harmful error is whether it is “highly probable”
that the error contributed to the judgment.’ Head v.
State[, 220 Ga.App. 281, 283(3), 469 S.E.2d 406
(1996)].” Smith v. State, 250 Ga.App. 583, 585(1),
552 S.E.2d 528 (2001). Because “[i]t is highly
probable that the evidence that [ Kitchens'] blood
alcohol level exceeded the legal limit contributed to
the trial court's determination that she was less safe
to drive[,] ... we cannot find the error harmless.”
(Footnote omitted.) Ladow v. State, 256 Ga.App.
726, 730, 569 S.E.2d 572 (2002). See also Smith v.
State, 250 Ga.App. at 585-586(1), 552 S.E.2d 528;
Carthon v. State, 248 Ga.App. 738, 742(1), 548
S.E.2d 649 (2001).
[2] 2. Kitchens also challenges the sufficiency of
the evidence. Having reviewed the transcript and
videotape of the stop, we find the properly admitted
evidence was sufficient to show beyond a reasonable
doubt that Kitchens was guilty of less safe
DUI.
Officer Holcomb testified and the videotape shows
that Kitchens was weaving repeatedly to both the
centerline and the fog line prior to the stop, and that
she did not immediately pull over when Officer
Holcomb activated his flashing lights. Officer Holcomb**
455 stated to Kitchens that the odor of alcohol
was “extremely heavy” and that her eyes
were bloodshot. The officer testified and the video-
574 S.E.2d 451 Page 4
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

tape discloses that Kitchens stumbled up against
her vehicle as she exited, and Officer Holcomb testified
that he had her walk to the back of the vehicle
and lean against it because she could not maintain
her balance very well. The videotape also shows
that at one point during the stop Kitchens held on
to the back of the vehicle as she took a few steps toward
the side. Additionally, Kitchens twice failed
one of the field sobriety tests, and she registered
positive on an Alco-Sensor test. Officer Holcomb
also testified that, based on his experience, Kitchens
was a less safe driver. It is well established
that police officers may offer opinion testimony
that a defendant was a less safe driver. Byrd v.
State, 240 Ga.App. 354, 523 S.E.2d 578 (1999);
Waits v. State, 232 Ga.App. 357, 358(1), 501
S.E.2d 870 (1998). The evidence in this case was
sufficient to authorize a rational trier of fact to conclude
that Kitchens was under the influence of alcohol
to the extent that she was a less safe driver.
Johnson v. State, 249 Ga.App. 29, 30(1), 546
S.E.2d 922 (2001); Byrd v. State, 240 Ga.App. at
354, 523 S.E.2d 578. “Thus, although we determined
in Division 1 of this opinion that [ Kitchens']
conviction for driving under the influence ... must
be reversed, she may be retried for that offense because
a rational [trier of fact] may find the properly
admitted evidence is sufficient for conviction.”
Carthon v. State, 248 Ga.App. at 743(2), 548
S.E.2d 649.
Judgment affirmed in part and reversed in part.
RUFFIN, P.J., and BARNES, J., concur.
Ga.App.,2002.
Kitchens v. State
258 Ga.App. 411, 574 S.E.2d 451
END OF DOCUMENT
574 S.E.2d 451 Page 5
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

San Diego's La Mesa Police Department is having a 4th of July DUI checkpoint.

San Diego DUI checkpoints are subject to strict rules and regulations.

The La Mesa Police Department will have extra California DUI officers on patrol that are specifically looking for drunk drivers this 4th of July weekend.

As part of the San Diego County AVOID the DUI campaign, many more cops will be looking for drunk drivers and asking questions folks do NOT have to answer, and asking folks to do things they don't have to do.

If you the San Diego / La Mesa DUI officer contacts you in the checkpoint or asks you to go to secondary for a California DUI assessment, politely roll down your window and perhaps put your hands on the steering wheel.

If a San Diego / La Mesa DUI officer asks you if you for anything other than (1) License, (2) Registration, and (3) Insurance, remember you don't have to answer. Just give them the three items and politely wait.

Do not make any statements to the La Mesa DUI cop.

The million dollar question the San Diego / La Mesa DUI officer is likely to ask is, "Have you had anything to drink tonight?"

Remember you are not required to speak to La Mesa checkpoint / drunk driving officers. Be brave and hold your ground.

San Diego Checkpoint La Mesa cops are trying to collect DUI evidence against you. Please do not give the officer anything other than license, registration and insurance.

"Officer, I understand and respect what you do for a living, but I do not want to answer any of your questions." You do NOT have to answer anything. If the cop insists, give him the name of a San Diego DUI attorney like Rick Mueller and his phone number: 1 800 THE LAW DUI. You know your rights.

The less DUI evidence the cops get, the better for you. If you have alcohol on your breath, you will get arrested anyway. But do not give the San Diego DUI checkpoint officer anything to put in that report that she or he can use against you later.

The San Diego / La Mesa DUI officer may ask you to perform some acrobatics or gymnastics aka field sobriety tests. Please remember to let him or her know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give some tests to try to figure out if you are impaired (but mostly just to collect evidence and point out the things you allegedly did wrong).

Many San Diego / La Mesa drunk driving cops learn how to do these tests, and thereafter forget them, often making up their own series of "tests." Please do not do them. Polite hold the course and continue to say that you do not wish to perform and tests. You have that right.

The San Diego / La Mesa DUI cop may ask you to blow into a hand-held, breath test gadget. Unless you are on DUI probation, please do not blow in the little box.

Hand-held breath test gadgets are unreliable, and often "display" falsely elevated numbers which are higher than your true BAC. Do not blow in the little box.

NO ROADSIDE/PRELIMINARY BREATH TEST IS "ALCOHOL SPECIFIC." Other junk (soy sauce, white bread, etc.) falsely tests positive as "alcohol."

Under the California Vehicle Code, you are NOT required to blow into the little hand held machine; you are entitled to refuse the little breath test.

But you must provide blood or breath on a big breath test machine per California's implied consent laws; do one (not both) and that's it. Nothing more. Politely.

For more information on how to avoid a San Diego DUI this weekend, visit How to Avoid a DUI.

Extensive San Diego DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI. Trustworthy San Diego DUI help for San Diego DUI court and San Diego DMV. Help to save your license.

San Diego DUI Attorney Rick Mueller is a superb (Avvo-rated) San Diego Drunk Driving Lawyer, San Diego DUI & DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence. San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California. Consider completing Free Evaluation for your best San Diego DUI defense attorney strategy.

Contact a San Diego California DUI Criminal Defense Lawyer:

Video of San Diego DUI / DMV Attorney

San Diego DUI

If you have been facing possible violation of your San Diego Drunk Driving Probation terms while being monitored by a device like SCRAM, consider employing a top San Diego DUI attorney who knows what to do. San Diego DUI officers and San Diego drunk driving judges are testing a new gadget which is supposed to monitor repeat San Diego DUI offenders for alcohol.

Secure Continuous Remote Alcohol Monitor (SCRAM), fits on the ankle of the offender and monitors alcohol consumption. The data get regularly piped to a secure facility in Colorado for analysis. Guests at the 15th annual Drug Court Training Conference held at the Anaheim Convention Center tested out this SCRAM system over to the weekend. All told, already 2,000 Southern California DUI offenders wear SCRAM devices. There are nearly 10,000 SCRAMs in use across the US. The system uses sophisticated sensors to test alcohol concentration in the sweat and supposedly can detect when an offender has tampered with it. Prosecutors contend that fitting SCRAM devices on offenders deters repeat DUI events. However, privacy advocates counter that the monitoring system goes too far and that its accuracy has not been sufficiently proven and beta-tested. Moreover, SCRAM detractors argue that the system presumes the guilt of offenders, who can be mandated to wear the device for up to 90 days.

Complete free survey today if arrested for drunk driving and in need of a premier San Diego DUI defense lawyer.

San Diego's City Attorney's Office drops San Diego California DUI charges against Kyle Kraska, the well-known sports director of Channel 8. The CA will not file any San Diego drunk driving - related charges. Apparently, in any criminal action, he would not be found guilty beyond a reasonable doubt due to undisclosed proof issues. His BAC level has not been reported but as a responsible person it is likely he was under the .08% level and drove lawfully after legally drinking alcohol.

San Diego DUI Police maintain the officer was standing outside his patrol car at about 8:20 p.m. when he saw a car coming around the bend. The officer said he flashed his lights and had to move out of the way so he wouldn't get hit, according to the police spokesperson. The driver then lawfully pulled into the driveway of his home nearby.

We in San Diego are happy his name has been cleared.

If someone is legitimately arrested for a San Diego DUI, it is a good idea to peruse the free online Survey.

Aspirin increases blood alcohol concentrations in humans after ingestion of ethanol

Any drug that is absorbed from the stomach and intestine must first pass through the liver before reaching the circulation. If the drug is metabolized, such as in the liver, before reaching the circulation, there will be less active drug available to exert its therapeutic effects. The decrease in bioavailability, or availability of a drug at its sites of action, due to its metabolism before reaching the circulation, is known as the first-past effect. Ethanol undergoes oxidation, a metabolic reaction, in the stomach, and this reaction was shown to be an important factor in determining the blood levels of alcohol. Fasting, alcohol abuse, and female gender are associated with diminished first-pass metabolism. Certain drugs, such as cimetidine and ranitidine, used to treat ulcers, also affect first-pass metabolism and gastric alcohol dehydrogenase (ADH), an enzyme involved in alcohol metabolism. Treatment with these agents is associated with elevated blood alcohol levels after ingestion of only small or moderate doses of ethanol. Aspirin, which is commonly used to relieve pain and treat rheumatic disorders, can cause adverse gastrointestinal side effects. The effects of aspirin on ADH and first-pass metabolism of ethanol were assessed in five healthy volunteers given 0.3 grams per kilogram of body weight. Ingestion of one gram of aspirin one hour before alcohol intake was associated with higher blood levels of alcohol in the fed state, defined as one hour after a standard breakfast, as compared with levels in the absence of aspirin ingestion. Aspirin was shown to decrease the activity of ADH in the stomach of humans and experimental rats, but not the activity of rat liver ADH. Aspirin had no effect on blood alcohol levels in rats when alcohol was given directly into the circulation. These findings suggest that aspirin increases the blood levels of alcohol in humans by decreasing the metabolism of ethanol by gastric ADH. (Consumer Summary produced by Reliance Medical Information, Inc.)

author: Baraona, Enrique, Lieber, Charles S., Roine, Risto, Gentry, R. Thomas, Hernandez-Munoz, Rolando

Publisher: American Medical Association
Publication Name: JAMA, The Journal of the American Medical Association
Subject: Health
ISSN: 0098-7484
Year: 1990

If arrested for a DUI in San Diego, you want to know what goes on at the DMV in order to try to save your driver's license. For more information by a premier San Diego DUI Lawyer, visit these helpful drunk driving attorney sites:

San Diego DUI Defense Lawyer

Video of San Diego DUI / DMV Attorney

Once retained, your San Diego DUI criminal defense attorney has 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline expires. A San Diego DUI defense lawyer's defenses at an APS hearing are specialized and technical, different from San Diego Superior criminal court. Recurring San Diego DUI / DMV proof problems, including legal and procedural issues, are fertile grounds for prevailing at the hearing and keeping one's license.

A San Diego DMV hearing for an administrative per se license suspension action has unique San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.



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



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



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




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




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




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




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

The best San Diego DUI lawyer will vigorously investigate all San Diego drunk driving arrests to ensure that the client’s legal rights were preserved and the San Diego DUI officer followed proper standards.

To save your driver's license or privileges, your San Diego DMV lawyer has only ten (10) calendar days to contact DMV!



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



If all proper San Diego procedures were followed - an unlikely event - your San Diego DUI attorney will nonetheless defend your San Diego dui case to the most professional extent.



Your first San Diego DUI offense is the best opportunity for a San Diego DUI defense lawyer to vigorously defend and to request a reduced San Diego DUI sentencing.



A top-rated San Diego DUI attorney will be one with over 25 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.

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.

If you have been arrested or cited for a DUI or drunk driving offense that occurred in the San Diego area, 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.




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!

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San Diego California DUI Attorney

San Diego Superior Court jury is deciding if gross negligence got the best of San Diego police officer charged in an off-duty shooting that left a mother and her young son wounded.

San Diego police department officer White fired five bullets at Rachel Silva in the right arm and also hit her son in the leg.

To quote the San Diego DA prosecutor:

“I think it is fairly obvious why we are here. All people should be held accountable for their actions. Police officers aren't above the law."

Officer White claimed he feared for his life and that of his wife when Silva drove her car aggressively toward him. White also says he didn't know Silva's son was in the car.

Silva faces sentencing next month after San Diego DUI tests showed she had marijuana in her system and enough alcohol to be considered drunk. She pleaded guilty to felony child endangerment and San Diego DUI.

If you or a loved one face San Diego drunk driving or DUI charges, research San Diego DUI attorney specialists including Rick Mueller.

San Diego DUI and DMV defense attorneys constantly try to remind the local office of important laws.

After the Solovij case was decided, DMV sent out that 3 page memo to all law enforcement agencies dated June 13, 2001 from Roger E. Hagen.

Page 3 has the chart "Examples of Probable Cause" listing two categories: Insufficient and Sufficient examples.

In the Insufficient Examples are listed:

Erratic driving
Weaving
Illegal maneuver
Illegal turn
Reckless Driving
Almost Caused Accident
Improper lane usage
Unsafe lane change
Speeding or driving in violation of Section 22350; basic speed

While "following too close" is not mentioned specifically, certainly it is conclusory, as are many other insufficient examples which must be more detailed and specific.

MacDonald v. Guiterrez ' California Supreme Court may have relieved the officer of including ALL information relevant to the enforcement action holding that ONLY * "technical omissions" in a DS 367 may be supplemented or explained by the unsworn report.

That is different from substantive or material omissions, affecting the Respondent's substantial rights.

DMV has the Burden of Proof to lawfully and properly establish Lawful Arrest, Reasonable Cause & Probable Cause (PC) - a conclusory objection is appropriate.

Respondent's substantial rights are affected by any failure of the cop to comply with his duty to provide relevant info re: PC.

* Technical is defined as immaterial, not affecting substantial rights, without substance. [Englebretson v. Industrial Accident Commission 170 Cal. 793, 151 P. 421, 422; Black's Law Dictionary 4th Ed. p. 1632]

MacDonald pointed out the problem at the time of Solovi:

"The problem is that the form designed by DMV gives the arresting officer only 2 and a half lines to describe the facts and circumstances..."

But now that problem is gone.

DMV improved is form giving the officer a full 8 1/2 by 11" page with 16 to 18 lines in order to DESCRIBE IN DETAIL THE FACTS AND CIRCUMSTANCES, not provide a conclusion without foundational or underlying facts, specific and supportive of that conclusion.

Admissibility may have been slightly relaxed under MacDonald but not unlimited. Daniels v. DMV still demands a "showing by substantial competent evidence of facts supporting a suspension." [33 Cal. 3d 532, 536]

There's a balance between the California Evidence Code, the Vehicle Code, including section 13380 and the Government Code.

Without overruling Daniels, MacDonald limited itself to that 2 1/2 lines probem:
"(We) must not lose sight of the reason for the 'slight relaxation' of the rules of evidence applicable to an APS review hearing..."

DMV needs to be remembered that the APS proceedings are "relaxed" but only "slightly relaxed."

Not completely relaxed!!

Only 6 out of 23 people who were given San Diego DUI field sobriety tests were actually arrested for San Diego drunk driving. That means about 26% of the persons who San Diego DUI police thought were impaired or DUI were; that also means about 74% of those who the San Diego drunk driving "authorities" thought were impaired or DUI were NOT.

San Diego County DUI deputies from the Imperial Beach Sheriff’s station conducted a San Diego California DUI driving under the influence/driver’s license checkpoint on June 12, 2009 from 7:30 p.m. to 2:00 a.m. in the 900 block of Palm Avenue, in the City of Imperial Beach.

These checkpoints must follow the California Supreme Court requirements, even in San Diego.

San Diego Drunk Driving Checkpoint Activity:

Vehicles Contacted: 990

Vehicles Through Without Contact: 21

Total Vehicles Through: 1011

Vehicles Sent Into Secondary: 44

Field Sobriety Tests Given: 23

San Diego DUI / Drunk Driving Arrest Total: only 6

Do San Diego DUI police jump to conclusions or make erroneous opinions about a person's sobriety or level of impairment? You bet. Just look at these numbers. Of 44 people the cops initially thought were maybe DUI, only 23 were given actual tests and only 6 were arrested.

If you or a loved one think the San Diego DUI police may have made a mistake in your case, or if you think you are not guilty beyond a reasonable doubt of drunk driving in San Diego, call an aggressive San Diego DUI lawyer today at 1 800 THE LAW DUI or take a free online Survey.

Cleveland star wide receiver Donte Stallworth has agreed to plead a DUI manslaughter charge. The Browns WR will go to jail for an undertermined time as a result of a Miami car crash in which a pedestrian was struck and killed. He will to appear today in a Miami courtroom to enter the DUI plea. If accepted by Miami-Dade Circuit Judge Dennis Murphy, Stallworth would serve a short jail sentence for the unfortunate crash, followed by lengthy probation and numerous conditions.

If you are in need of a DUI criminal defense attorney in San Diego, consider Rick Mueller's San Diego County DUI Law Center for a free survey.

Enjoying San Diego before stopped by DUI cops? What you must do within 10 days of being arrested - read this now:

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! If you contact DMV to schedule a date conflicting with your San Diego DUI attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice, so don't schedule yourself. Make sure your San Diego DUI lawyer 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!






Check with a San Diego DUI Lawyer who has information here:

California DUI Attorney

San Diego DUI Help

San Diego DUI / DMV Attorney Rick Mueller specializes in DUI and
DMV law. He speaks on August 1, 2009 at Loyola Law School at the annual DUI seminar sponsored by MABA. He is the only DMV - DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several years. At an 8th seminar, San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California. San Diego DUI Lawyer Rick Mueller is known as the "DMV Guru" by the Bar Association. Specially recognized as a Contributor to the California Drunk Driving Law book, he is now the San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's bible for DUI defense, authored by Ed Kuwatch, Paul Burglin and Barry Simons, the book features some of San Diego DUI attorney Rick Mueller's hard work.



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



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

Quality San Diego DMV - DUI legal representation: 1-800-THE-LAW-DUI
(1-800-843-5293)



4660 La Jolla Village Drive, Suite 500

San Diego, CA 92122

(619) 218 - 2997 portable/voice mail




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

San Diego DUI

Video of San Diego DUI / DMV Attorney

In San Diego, California, DUI suspects have the right to CHOOSE between a blood or a breath test if arrested. The Police are SUPPOSED to respect that right. So if someone selects a breath test, the police must give the person that breath test.

The DUI police are not supposed to make the person do a blood test - yet alone force a blood test - if the person verbalizes his choice of a breath test and the machine is available!

If the police do a blood test when the person requested a breath test, the evidence must be thrown out, according to the case of Nelson v. City of Irvine, a federal case articulating the rights of suspects and the obligations of DUI cops.

Yet San Diego Chargers receiver Vincent Jackson was rejected yesterday by a judge when his premier San Diego DUI Attorney Specialist, Cole Casey, asked the court to suppress evidence obtained as a result of Jackson's January arrest on suspicion of a San Diego DUI.

In that motion, Jackson's San Diego DUI defense lawyer said Jackson was forced to have his blood drawn “against his will” after repeatedly requesting a breath test instead, as was his statutory right under the California Vehicle Code and under the precedent set in Nelson v. City of Irvine. In Nelson, top California DUI defense attorney Barry Simons caught the City of Irvine making drunk driving suspects do a blood test when they should have been given their requested choice of a breath test. That federal court basically said: Sorry, Charlie, follow the law. There's no need for a blood test. You have a breath test available. Uh, you are the law but you are not above the law. Cases thrown out!

After being escorted to the lovely San Diego jail, Jackson elected to take a breath test. A California Highway Patrol officer then set it up for him, according to the officer's potentially tainted arrest report. But the officer apparently became impatient when the breath test machine didn't accept the sample right away. Jackson then was told he had to do a blood test even though he wanted the breath test. According to California and federal laws, the cops are not supposed to do that. The way they treated Jackson was wrong.

If the DUI cops were really playing fair, they'd have a video.

Click on the title if you need a free San Diego DUI attorney evaluation today.

Up north, drunk driving cops have new ideas. Salinas Police Department, in partnership with Sun Street Center’s P.A.R.T.S. and S.T.E.P.S. programs, (Preventing Alcohol Related Trauma in Salinas and Safe Teens Empowerment Project in Salinas) will be conducting a DUI and Drivers License Checkpoint during the evening hours of Friday June 12, 2009. The California dui checkpoint is done this weekend in an attempt to reduce the amount of DUI cases associated with graduation celebrations.

The California DUI and Drivers License Checkpoint must follow strict rules.

If asked to do acrobatics or California DUI sobriety tests, individuals stopped for drunk driving cannot be forced to submit to field sobriety testing. It is important to note that there may be consequences for refusing to submit to a chemical test (blood or Title 17 breath test machine) .

DUI/Drivers License Checkpoint by cops everywhere in San Diego County joined forces to conduct an AVOID - DUI Campaign Task Force DUI/Drivers License Checkpoint and roving Saturation Patrols in the unincorporated community of Fallbrook on Friday night.

These checkpoints must follow rules pronounced by the California Supreme Court relating to DUI roadblocsk.

This DUI Avoid Grant targeted Fallbrook. This DUI & drunk driving enforcement of alcohol related crimes and violations targeted drunk drivers. Cops involved were the San Diego County Sheriff’s Department, California Highway Patrol, San Diego PD, Oceanside PD, and Coronado PD.

Out of 700 vehicles, 289 vehicles were randomly directed into the primary screening area. 32 vehicles were directed into the secondary screening area where 19 citations were issued, 2 people were arrested for DUI. San Diego roving patrols arrested 2 other motorists for DUI. More San Diego DUI checkpoints for the Fallbrook area will happen soon. If you need help today, visit San Diego County DUI Law Center's website.

San Diego DUI attorney defenses at an administrative per se DMV hearing are specialized and technical, more than in criminal court. San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are bases for setting aside the suspension.



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




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



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




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




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




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


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



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



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

San Diego DUI

Video of San Diego DUI / DMV Attorney

Check out what Rick Mueller's clients have to say when they hired this San Diego DUI defense lawyer. Here's what one person said about this San Diego drunk driving attorney a couple of months ago.

"I got a DUI in San Diego with a Indiana prior. The courts found out about the IN prior, but the DMV did not. I told Rick that I needed to keep my license or else I would lose my job. I plead no contest to the courts, and have to do the required programs and fees. However, Rick won my DMV trial, and since they didn't know about my IN prior, I got my restricted license even after registering for the 18 month DUI program (for multiple convictions). As Rick will tell you, it can be frustrating not being involved with the day-to-day processes, but let Rick do his job. I have a lot of work to do for the court conviction, but with a 0.26 BAC, I really have to own up. All I care about is that he got my license back and I didn't lose my job (and don't have to spend cab fare on all of the programs I have to attend)!"

A San Diego drunk driving charge is no fun but don't worry. A quality San Diego DUI defense lawyer can aggressively defend you.

A top-notch San Diego DUI criminal defense attorney will be one with over 25 years of experience and expertise in San Diego California drunk driving cases. Look up the credentials of your San Diego DUI / drunk driving criminal attorney.

San Diego DUI attorneys will free initial consultation to learn more about your case. To find the best San Diego DUI tactic, please do the free, online evaluation San Diego DUI Evaluation.

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

A DMV attorney must successfully attack one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!

Short list of Premier San Diego DUI Attorneys:

San Diego DUI Lawyer

San Diego DUI Attorney

San Diego alcohol drinkers - here's what is going on in San Diego:

1. DUI checkpoints have increased throughout San Diego.

2. San Diego Drunk Driving police have increased efforts.

3. The San Diego Superior Court is now considering implementation of a "DUI Court."

4. San Diego has a "social host ordinances" that impose fines and other penalties on adults who supply alcohol to underage drinkers at house parties.

5. "Youth advocates" and teenagers from San Diego county host "sticker shock" events to warn adults not to buy alcohol for minors. The stickers read:

"Hey, you!! It's illegal to provide alcohol for people under 21,"
and
"You must be 21 to purchase alcoholic beverages. It's the law!"

6. DUI Defense attorney help is here in San Diego.

San Diego DUI lawyers warn the public of San Diego DUI police from all over San Diego County will be targeting drunk drivers tonight in Fallbrook.

There will be roving San Diego DUI patrols and a San Diego drunk driving checkpoint, the location of which was unfortunately not disclosed. These checkpoints must comply with the State Supreme Court requirements.

The San Diego Sheriff's Department, CHP, San Diego County Probation and the San Diego, Oceanside, Escondido, National City, Chula Vista and Coronado police departments will be involved in this broadsweeping DUI enforcement effort.

If you find out you need help, it may be appropriate to contact a top San Diego DUI lawyer and get a free, online evaluation.

Imperial Beach, San Diego County, is the place to party. One bar, liquor store or other vendor selling alcohol for every 626 residents. It is about four and a half square miles with 45 alcohol establishments, 25 of which are along the mile and a half part of Palm Avenue aka "Party Town".

Arrests in Imperial Beach for alcohol-related crimes were higher than those of two other San Diego towns similarly sized. In 2008, deputies made 261 DUI arrests in Imperial Beach compared with 215 in Coronado and 85 in Lemon Grove.

Coronado has more officers than Imperial Beach has deputies on the street. Despite that, Imperial Beach has a higher number of arrests.

Imperial Beach is in the top 10 percent of alcohol-related accidents and in the top 15 percent in arrests for California DUI for towns with 50,000 residents or less in California.

San Diego DUI arrests have increased annually in the city. In 2007, there were 238 and in 2006, there were 211.

The Responsible Retailer program will pay for a part-time deputy to work with alcohol establishments. The deputy will inspect bars, restaurants, and liquor and grocery stores, enforcing laws that regulate sales and consumption of alcohol.

A deputy would have the options to counsel, warn or cite individuals violating local laws. Those who fail to comply could have their city business licenses revoked.

The DUI program's objective is to increase the awareness of the dangers of improper sales and serving of alcohol, especially to minors or those already intoxicated, and reduce the number of DUIs and other alcohol-related crimes.

If you or a loved one need assistance after being arrested for a San Diego DUI, consider a free online consultation with a premier San Diego drunk driving attorney.

San Diego DUI lawyers get tough cases. What about when someone is facing 27 years in state prison?

One guy's 27 year sentence for DUI was upheld: Jeffrey Wren of California must serve the lengthy sentence under the state's "three-strikes" felony sentencing guidelines because he had a long record of criminal and DUI / drunk driving convictions.

An Appeals Court said he had 3 prior DUI convictions and was out on bail when his latest offense occurred. He also was convicted 18 years ago on 2 felony "strike" counts.

If you need help with a San Diego DUI charge, make sure you hire the best possible California drunk driving attorney asap to avoid big problems later (during the appeals process, e.g.). Try a free San Diego DUI attorney evaluation today.

California Highway Patrol has CHP 202 Arrest Report templates usually used by the CHP officer who arrests someone for a California DUI. This sample form suggests what the officer

should

see (not necessarily what the officer saw):

"First Observations:

On 0-00-09, I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer X. I was traveling...

Observations After Stop: I contacted the driver and advised him/her the reason for the stop. As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath. I noticed that the driver had red watery eyes, as well as slow and slurred speech. I asked the driver for his/her driver’s license, which he/she provided me. I identified the driver using his/her California Driver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “–.” I asked the driver to exit his/her vehicle and meet me at the right front of my patrol vehicle. I noticed that as the driver walked he had an unsteady gate. As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person. I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes. I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and asked him/her how much he/she had to drink and he/she stated, “—-.” I explained and demonstrated several FST’s to Name, which he/she could not complete as explained and demonstrated.


FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated. I asked Name if he/she understood each test completely and he/she stated that he did. All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris. The weather was cool, clear/cloudy, and daylight/dark.

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees. Name’s eyes showed vertical gaze nystagmus.


2)One leg stand:Name lifted his/her right/left foot and dropped it immediately on the count of 1000.

3)Romberg:Name estimated 30 seconds in 0000 seconds. Name body swayed in a circular motion 1 to 2 inches from center of mass.

4)Finger Count:I explained the test to Name

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test. I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.


Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.

Arrest: Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle. I placed Name under arrest for 23152 (a) CVC at 0000 hours. I advised Name of implied consent and he/she chose the blood/breath test. I booked Name into the County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____"

California Highway Patrol has CHP 202 Arrest Report templates usually used by the CHP officer who arrests someone for a California DUI. This sample form suggests what the officer

should

see (not necessarily what the officer saw):

"First Observations:

On 0-00-09, I was on routine patrol in a fully marked CHP patrol vehicle, with my partner officer X. I was traveling...

Observations After Stop: I contacted the driver and advised him/her the reason for the stop. As I spoke with the driver I smelled the strong odor of an alcoholic beverage emitting from his/her breath. I noticed that the driver had red watery eyes, as well as slow and slurred speech. I asked the driver for his/her driver’s license, which he/she provided me. I identified the driver using his/her California Driver’s License as John Doe 00-00-00. I asked the driver if he/she had anything to drink and he stated, “–.” I asked the driver to exit his/her vehicle and meet me at the right front of my patrol vehicle. I noticed that as the driver walked he had an unsteady gate. As I spoke with the driver I noticed that he/she had an odor of an alcoholic beverage emitting from his/her breath and person. I also noticed that the driver was unsteady on his/her feet swaying in a circular motion 1 to 2 inches from center of mass, he/she had slow slurred speech, and red and watery eyes. I advised the driver that I smelled a strong odor of alcohol emitting from his/her breath and asked him/her how much he/she had to drink and he/she stated, “—-.” I explained and demonstrated several FST’s to Name, which he/she could not complete as explained and demonstrated.


FIELD SOBRIETY TESTS

All FST’s were explained and demonstrated. I asked Name if he/she understood each test completely and he/she stated that he did. All tests were performed on a Location dirt/asphalt Parking lot/Shoulder that was free of debris. The weather was cool, clear/cloudy, and daylight/dark.

1)Horizontal Gaze Nystagamus:

Name eyes showed lack of smooth pursuit, distinct nystagmus at the extremes and an onset prior to 45 degrees. Name’s eyes showed vertical gaze nystagmus.


2)One leg stand:Name lifted his/her right/left foot and dropped it immediately on the count of 1000.

3)Romberg:Name estimated 30 seconds in 0000 seconds. Name body swayed in a circular motion 1 to 2 inches from center of mass.

4)Finger Count:I explained the test to Name

5)Preliminary Alcohol Screening Device:

I admonished Name regarding the Preliminary Alcohol Screening Device (PAS) and he/she agreed/refused to take the test. I administered the PAS to Name at 0000 and 0000 hours with BAC results of .000% and .000%.


Other Factual Information:

All times are approximate and may vary from the times on the Preliminary Alcohol Screening Device, the breath test and times provided to me by dispatch.

Arrest: Based on my observations of Name’s driving, Name’s objective signs of alcohol intoxication, and his/her performance on the FST’s, I formed the opinion that Name was driving under the influence of an alcoholic beverage and unable to safely operate a motor vehicle. I placed Name under arrest for 23152 (a) CVC at 0000 hours. I advised Name of implied consent and he/she chose the blood/breath test. I booked Name into the County Jail.

Recommendations:

I recommend a copy of this report be forwarded to the District Attorney’s for review, and that Name be prosecuted for violation of 23152 (a) CVC driving under the influence of an alcoholic beverage, and _____"

What you must do within 10 days of being arrested for a San Diego drunk driving charge:

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



Do not schedule yourself. If you contact DMV to schedule a date conflicting with your San Diego DUI attorney's calendar, DMV will not reschedule and you may not get the San Diego DUI attorney of your choice. There is no rush as long as your San Diego DUI 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 a San Diego DUI lawyer.

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 San Diego 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!






San Diego DUI Lawyer who can help:

San Diego DUI

Video of San Diego DUI / DMV Attorney

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.

Drunk Driving lawyers who handle San Diego DUI cases know how San Diego county police try to get the annual MADD award for most San Diego county DUI arrests (not convictions).

A California DUI officer in Northern California, Bryan Pinto, as aaVisalia police officer, received a "California Hero Award" from Mothers Against Drunk Driving and a new assignment from the police department, in recognition for his work in finding and arresting suspected drunken drivers; he arrested 57 DUI suspects in California last year.

The officer returned to duty in 2 1/2 years ago, more than 3 years after the department fired him amid allegations of sexual misconduct with a teenage boy and lying to investigators. Although he was cleared of all criminal charges by a jury, the department and the city of Visalia fought efforts to reinstate Pinto, challenging a Tulare County Superior Court ruling in Pinto's favor and filing subsequent appeals. In Pinto's notice-of-termination letter, then-police Chief Jerry Barker cited several reasons for the firing, adding that Pinto's conduct reflected poor judgment: "Your behavior is conduct unbecoming a member of this department and is contrary to the department's good order, efficiency and protective obligations to all citizens of the public and especially victims of alleged crimes," a letter reportedly said.

His dedication to catching DUI offenders resulted in his being selected as the police department's DUI / Drunk Driving teacher. Speed in making a DUI arrest means an officer can get back on the street and make another DUI arrest quicker. Quick DUI arrests is why you may find yourself in need a DUI Specialist lawyer for the San Diego County area.

San Diego DUI criminal defense lawyers point out the below reference of voltages "drift" in a voting machine when asking what do you think a breath test machine will do, by analogy? If San Diego California DUI breath test data indicates an error - e.g. log shows unstable reference prior to a person being tested - what does this mean in a California drunk driving trial and what is the significance?

Answer: give bad breath test results.

Tuesday saw elections for school boards and city officials throughout Kansas. In Saline, ES&S voting machines in several locations were 'mis-calibrated,' and when the voter touched next to one candidate's name, the 'x' appeared next to another one. One person I talked to said he tried to vote three times before going to the 80-something-year-old election worker, who told him 'It was doing that earlier, but I thought I fixed it.' From the story in today's Salina Journal: 'The iVotronic machines used in Saline County are sold by Elections Systems and Software. In October, the Brennan Center for Justice at New York University School of Law notified 16 secretaries of state, including Kansas Secretary of State Ron Thornburgh, that the machines are known to record votes to the wrong candidate.' The county does calibrate the machines the day before each election, but, '... in conversations with ES&S on Thursday, [the county clerk] was told that the calibration might change during the day. "What they've seen is calibration drift on a unit," Merriman said. "They're fine in the morning, but by afternoon they're starting to lose their calibration."' There was also coverage of the problems when they occurred two days ago."

Filed 1/29/09



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE, )
)
Plaintiff and Respondent, )
) S058472
v. )
)
ERIC WAYNE BENNETT, )
) Orange County
Defendant and Appellant. ) Super. Ct. No. 95ZF007
)

A jury convicted defendant Eric Wayne Bennett of the first degree murder (Pen. Code, § 187, subd. (a)) of Marie Powell Evans and found two special circumstances to be true — that the murder was committed while engaged in the commission of rape (§ 190.2, subd. (a)(17)(iii)) and burglary (id., subd. (a)(17)(vii)). The jury also convicted defendant of several crimes related to his assault of Pamela B., including forcible oral copulation (§ 288a, subd. (c)), rape (§ 261, subd. (a)(2)), first degree robbery within an inhabited dwelling (§§ 211, 212.5, subd. (a), 213, subd. (a)(1)), and first degree burglary of an inhabited dwelling (§§ 459, 460, subd. (a), 461.1). The jury found that defendant personally used a knife when he committed the crimes against Pamela B. (§ 12022, subd. (b).) The jury returned a death verdict. The trial court sentenced defendant to death on the murder count and imposed and stayed a determinate term of 15 years four months for the crimes against Pamela B. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).) We affirm the judgment.
I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution’s Case
a. Crimes Committed Against Pamela B.
In mid-September 1994, defendant installed flooring at the Costa Mesa home of Mary Beth Baughman. Shortly thereafter, defendant signed a rental contract for an adjoining unit and he, his wife, and two children moved in. Pamela B. lived alone in a small apartment directly behind Baughman’s unit with a driveway separating her unit from defendant’s.
On September 27, about 10:00 p.m., Pamela B. was home alone watching television in her bedroom. As it was a warm evening, Pamela B. had her front door, which opened into her bedroom, open with the screen door closed and latched. Pamela B. saw defendant standing outside on her front porch. She watched him bend over, take his shirt off and wrap it around his head and face “ninja style” so that only his eyes were uncovered. Defendant then charged through the door with a four-inch knife in his hand. Wearing only a pair of black shorts, defendant charged at Pamela B. and pinned her down on top of the bed. Holding the knife to Pamela B.’s neck, defendant told her that he would not hurt her and that he only wanted her money. Pamela B. screamed.
Baughman was inside her living room and heard the scream. She walked out onto her patio and yelled across the fence, “Pam, are you all right?” Baughman thought she heard a response, but could not understand what Pamela B. had said so she called out again. Defendant still had a knife to Pamela B.’s neck and said, “Shit. Tell her you’re okay.” Pamela B. did so and Baughman did not come any nearer.
Defendant again told Pamela B. that he wanted her money. Afraid defendant would harm her if she did not comply, she told him where her purse was. Defendant stayed within a foot of Pamela B. while she retrieved her purse and got her money out of it. After defendant took her money, he got upset and asked for the “rest of it.” Pamela B. told him that was all she had and defendant rolled the money up and put it in his shorts. The shirt began to fall from defendant’s face and, as he tightened it back up, defendant warned Pamela B. not to look at his face. “If you look at my face, I’ve got to hurt you.”
Defendant told Pamela B. he was not done and directed her to get face-down on the bed. Defendant got behind her, put his left arm under her abdomen and pulled her up on her hands and knees. Defendant rubbed her breasts and hips and rubbed his penis against her body. Defendant had a partial erection that he lost when he heard a car drove by. Defendant became angry and said, “Now, you got to suck it.” Although terrified, Pamela B. refused. Defendant told her he would not hurt her, pushed her head onto his penis, and then insulted her about the manner in which she was orally copulating him. After defendant obtained an erection, he pulled Pamela B. to her hands and knees, got behind her, threw her nightgown over her head, and put his penis into her vagina.
After defendant ejaculated, Pamela B. ran out the front door. She ran outside her gate and turned left, near her car. Defendant gave chase and cornered Pamela B. by her car. He lunged at her, causing her to scream, at which point defendant ran away. Pamela B. lost sight of defendant.
Pamela B. ran to Baughman’s unit and banged on her back door. After Baughman opened the door, Pamela B. entered and called 911. City of Costa Mesa Police Officer Mitchell Johnson responded within minutes. Officer Johnson did not see any cars leave the area and felt that the suspect must still be nearby. He quickly searched the area and set up a perimeter within a block of the location. When Officer Johnson met with Pamela B., she was “borderline hysterical” and crying. After calming her down, Officer Johnson was able to obtain a statement after which he took Pamela B. to the hospital for a sexual assault examination.
While Officer Johnson was obtaining a statement from Pamela B. at the apartment, Baughman was outside and saw defendant. Defendant asked what the police activity was about. Defendant said he had been sleeping on the sofa with his baby and the lights woke him up. Baughman told defendant she would rather not say. Defendant was insistent and, after he inquired several more times, Baughman told defendant Pamela B. had been raped. Defendant said that was terrible and left.
A sexual assault examination showed Pamela B. had suffered an abrasion near her vaginal opening and that there was sperm present in the secretions from her vagina. DNA was extracted from the semen.
After the rape, Pamela B. was in physical pain, could not move her right thumb for a week, and had a large bruise on the side of her thigh. She never slept at her apartment again and moved out at the end of October.
b. Evans’s Murder
On September 27, 1994, the same day defendant assaulted Pamela B., he installed flooring at Marie Powell Evans’s new townhouse in Laguna Hills.
On October 13, Evans went to the home of her daughter and son-in-law, Christine and John Hougan, to bring her son-in-law a birthday present. Evans had a dark leather purse with her. Evans left their home at around 8:30 p.m. Around 11:00 a.m. the next morning, Christine received a phone call from Evans’s boss, who told her that her mother had not shown up for work that morning, which was highly unusual. The Hougans worked for the City of Newport Beach Police Department, Christine as a police dispatcher and John as a police officer. Christine called someone from work and requested her mother’s license plate be run to see if there had been a reported traffic accident. Upon discovering that there was no report of an accident involving Christine’s mother, the Hougans went to Evans’s house.
They entered Evans’s patio area and saw that the window screen was off the kitchen window. John Hougan noticed that dust on the windowsill had been disturbed and a plant had been knocked over into the sink leading him to think someone had crawled in through the window. Upon closer inspection, he observed a large amount of blood and a pillowcase on the kitchen floor. He took his wife back to the car and had her wait while he retrieved his gun and returned to the house. John entered the house through the front door, which was closed, but unlocked. There was a bloody bare footprint on the entryway throw rug that was facing downward toward the stairs. John then went downstairs and, when halfway down, saw Evans’s semi-naked body on the floor of the bathroom. After checking the other bedrooms to see if anyone was in the house, he phoned 911.
A rear sliding glass door leading into the master bedroom was found open with the screen door closed; the screen had a cut from top to bottom, leaving an opening large enough for a person to walk through. There was blood on the bed in the master bedroom and signs of a struggle, including a porcelain clock that had been knocked over. In the bathroom next to the master bedroom, Evans was lying on her back with her robe pulled up over her chest. There was blood on the bathroom door, floor, and wall. There was a bloody footprint next to the body and a wet towel, a television, and a pillow on top of Evans’s head. The television’s cord was plugged into a socket in the master bedroom and the television was still on.
There was a bloody footprint in the kitchen and another at the top of the stairs facing downwards, along with some potting soil. In the living room, there were shelves holding several glass decanters. On one of the shelves, there was a ring-shaped impression in the dust as if something had been taken. On the kitchen counter there was a notepad with the name Eric (the same as defendant’s first name) and a phone number, later determined to be defendant’s, written on it. Missing from the house were Evans’s purse and a glass decanter.
An autopsy showed Evans had suffered multiple major injuries. The autopsy determined she died as a result of bruising to her brain due to blunt force trauma. There were pattern marks on her face between the left eye and ear consistent with a blow from a heavy, patterned object. There were multiple skull fractures and tears in Evans’s scalp. Her hands had skin breakage, lacerations, swelling and discoloration, which may have been from an attempt to ward off a blow. There were also marks in Evans’s vaginal area that could have been injuries.
A sexual assault examination recovered sperm from Evans’s anal, perianal, and perivaginal areas as well as her vagina. Sperm was also found on the bed sheets in the master bedroom. DNA was extracted from the sperm.
c. Defendant’s Arrest
Defendant did not return to his job after October 14. On October 18, aware that he had installed carpet in Evans’s home, the police obtained defendant’s fingerprints in an effort to exclude him as a suspect in the murder. Shortly afterwards, defendant and his wife moved out of his apartment without notifying his landlord that he would be moving.
For reasons not explained to the jury at the guilt phase, defendant was arrested on an unrelated charge by the San Diego County Sheriff’s Department. While in custody, defendant’s blood was drawn by a nurse and his DNA was compared to DNA recovered from the two crime scenes and found to match. The probability of a random match with semen and blood recovered from Pamela B. and her home was 1 in 1.2 billion within the general population. The probability of a random match with semen recovered from Evans’s body was 1 in 17 million within the general population. The probability of a random match with semen recovered from Evans’s bed sheets was 1 in 7 million within the general population.
Defendant was arrested on October 31. The prosecutor presented the case to a grand jury, which returned an indictment on January 11, 1995.
2. Defense Case
At a live lineup two and a half months after the attack, Pamela B. was unable to pick defendant as the person who assaulted her. She instead picked another man out of the lineup as the person most resembling her attacker. Nor could she make an in-court identification of defendant as the man who assaulted her. She described her attacker to the police as having a dark complexion, possibly black, with dark brown eyes while defendant had blond-to-brown hair and blue eyes. Defendant presented evidence that none of the fingerprints that were taken at Evans’s house matched his. Defendant also challenged the reliability of the DNA evidence and the probability estimates given by the prosecutor’s DNA experts.
B. Penalty Phase
1. Prosecutor’s Case
The prosecution’s case in aggravation consisted of two witnesses: Alice Ware, Evans’s 82-year-old mother, and Christine Hougan. They described the impact Evans’s death had on them. Additionally, Hougan testified about the impact it had on her to be present when her mother’s body was found and Ware testified about finding out about Evans’s murder over the phone from Hougan.
2. Defendant’s Case
The defense presented testimony about defendant’s childhood. He was raised as a Jehovah’s Witness, although he stopped attending church on a regular basis when he was a teenager and began using drugs. There was testimony of a family history of alcohol and drug abuse. Defendant himself had a significant problem with alcohol and drugs throughout his life. He was diagnosed in grade school as dyslexic. Defendant ultimately dropped out prior to completing high school.
Defendant’s cousin testified that, when she was 11 or 12 years old and defendant was four or five years old, she was taking care of him and gave him a bath. She dried him off and then tried, unsuccessfully, to have sexual intercourse with him. After this incident, defendant engaged in other instances of inappropriate, precocious sexual behavior.
Defendant married Karen Bennett, his second marriage, in December 1991. They had a child together and she had a child from a previous relationship that defendant treated as his own. She testified that she still loved defendant and did not want to seem him executed. She also testified that defendant was a good father to their two boys and she wanted him to continue his relationship with the children. Karen Bennett also testified that their marriage had been rocky at times due, among other things, to defendant’s drug use. She testified that she demanded or asked defendant to commit to stopping his drug use.
Dr. Nancy Kaser-Boyd, a clinical psychologist, testified defendant had expressed guilt about his crimes and the effect his crimes had on his family and the family of the victims. She also testified that defendant exhibited risk factors for acting out sexually. Among the factors were his sexual molestation at the hands of his cousin; defendant’s drug use; his dyslexia and attention deficit hyperactive disorder; and his dysfunctional family. Dr. Kaser-Boyd also testified extensively about the relationship between defendant and his stepson, opining that the child was attached to defendant and identified defendant as his father.
Defendant conceded that he had raped Pamela B. and killed Evans and presented evidence of his remorse. While he was in custody after his October 31 arrest, he returned to the Jehovah’s Witness faith. Within weeks of his arrest, he confessed to his wife that he had killed Evans and raped Pamela B. and told her he wanted to plead guilty to spare those involved the pain of a trial. He cried and said he was sorry to her, their children, his parents, and the family of the victims. Defendant subsequently told his mother the same thing. He also expressed a desire to plead guilty to his attorneys but they, together with his family, sought to convince him to proceed to trial. Defendant’s wife and her grandmother contacted James Waltz, an attorney and a Jehovah’s Witness, and asked him to talk to defendant about whether to plead guilty. Defendant told Waltz that he wanted to plead guilty, but Waltz told defendant to cooperate with his attorneys. Rick Wentworth, an elder in the Jehovah’s Witness church, testified that he had visited defendant in jail numerous times and that they had engaged in Bible study and talked about family. Jenk Janes, a Jehovah’s Witness and recovering addict, testified he took defendant to an Alcoholics Anonymous meeting in August or September 1994. Janes testified that defendant sincerely desired to change his lifestyle and overcome his addiction to drugs.
II. DISCUSSION
A. Pretrial and Guilt Phase Issues
1. Failure to Record Portions of Grand Jury Proceedings
The district attorney sought an indictment from the grand jury. Defendant contends critical portions of the grand jury proceedings were not recorded, thereby violating state law and the Eighth and Fourteenth Amendments to the United States Constitution. Specifically, defendant argues reversal is required because of the failure to record the superior court’s interview of prospective grand jurors and an alleged meeting between the prosecutor and the grand jury. We disagree.
At the time of defendant’s trial, section 190.9 required that, “[i]n any case in which a death sentence may be imposed, all proceedings conducted in the . . . superior courts . . . shall be conducted on the record with a court reporter present.” (Stats 1993, ch. 1016, § 3, p. 5739.) Defendant cites Dustin v. Superior Court (2002) 99 Cal.App.4th 1311, 1321-1323 for the proposition that section 190.9 applies as well to grand jury proceedings in capital cases.
While the federal Constitution does not require that all proceedings be transcribed, it does require that there be a record adequate to permit meaningful appellate review. (People v. Howard (1992) 1 Cal.4th 1132, 1165-1166.) A record is inadequate “only if the complained-of deficiency is prejudicial to the defendant’s ability to prosecute his appeal.” (People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8.) It is defendant’s burden to show that any deficiencies are prejudicial. (People v. Young (2005) 34 Cal.4th 1149, 1170.) Inconsequential inaccuracies or omissions are insufficient to constitute prejudice. (Ibid.) Nor will mere speculation suffice. (Ibid.)
a. Interviews of Prospective Grand Jurors
On May 18, 1994, the Orange County Superior Court selected 19 individuals from a roster of 29 nominees to comprise the 1994-1995 grand jury (§ 895). Section 896 requires that the superior court personally interview each prospective grand juror to ascertain whether they possess the qualifications required by section 893. As part of the appellate record completion process, defendant sought to augment the record with transcripts of the superior court’s interview and selection of the grand jury. Neither the interviews nor the selection process were recorded. Defendant argues this constitutes reversible error. We disagree.
Section 190.9 requires that all proceedings be reported in a “case in which a death sentence may be imposed.” The Court of Appeal concluded in Dustin that section 190.9 applies to grand jury proceedings in death penalty cases where indictments are returned. (Dustin v. Superior Court, supra, 99 Cal.App.4th at p. 1322.) That case is unlike this one. There, the Court of Appeal considered a defendant’s pretrial claim that the prosecutor violated section 190.9 by ordering the court reporter to leave while he gave his opening and closing statements to the grand jury. (99 Cal.App.4th at pp. 1314-1315.) Even assuming Dustin was correctly decided, section 190.9 cannot reasonably be interpreted to apply before a “case” even exists. Defendant did not commit his crimes until September 1994, he was not arrested until October 1994, and the case was not presented to the grand jury until January 1995. The “case” could not have been said to exist in May 1994 when the 1994-1995 grand jury was interviewed, selected, and impaneled. Section 190.9 does not impose a duty to record the personal interviews of prospective grand jurors. Nor is there a constitutional violation, as defendant has failed to establish that the absence of the sought record prejudices his ability to prosecute his appeal. (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.)
b. Alleged Meeting Between Prosecutor and Grand Jury
On Thursday, January 5, 1995, Deputy District Attorney Carolyn Kirkwood presented the state’s case to the grand jury. The next morning, Friday, January 6, Kirkwood gave her closing argument and answered the grand jury’s questions. The foreperson then excused Kirkwood and the court reporter so the jury could begin deliberating. Later that afternoon, Kirkwood and District Attorney Guy Ormes returned to address several written questions the jury had submitted. Afterwards, the grand jury resumed deliberations, but recessed for the day without returning an indictment.
On Wednesday, January 11, Ormes and Kirkwood returned to address more questions submitted by the grand jury. Ormes noted the jury had recessed Friday without returning an indictment and, “Since that time you presented me with a — actually several questions . . . .” Ormes indicated the People were prepared to address the questions by calling additional witnesses. Ormes and Kirkwood first addressed several questions themselves. When addressing one of the questions, Kirkwood remarked, “We received a note from the grand jury on [Monday,] January 9, 1995 . . . .” The People then examined several witnesses, after which Kirkwood made concluding remarks and the jury resumed its deliberations. Later that afternoon, it returned an indictment against defendant.
Defendant moved to dismiss the indictment. He argued that the grand jury indicted him only after the prosecution presented additional, allegedly inadmissible, evidence on January 11. At a hearing on the motion, counsel for both sides discussed whether the jury “refused” to return an indictment on January 6, whether it deliberated on January 9 and 10, and how it transmitted its questions to the prosecution. Defendant asked to examine Ormes and the foreperson about whether the jury deliberated on January 9 and 10, whether it had taken a vote prior to January 11, and whether there were any unreported discussions between it and the prosecutors. The court denied the request, but ordered the prosecutor to produce the jury’s written questions for in camera review.
The court reviewed the written notes in chambers with only the prosecutors present. One note, written by the foreperson, was dated January 9 and contained questions about the People’s DNA evidence, whether there was any non-DNA evidence implicating defendant, and about exculpatory evidence. Another note, also written by the foreperson, was dated January 10 and began, “These 4 points are what I told the panel I had discussed with you.” The note then listed points regarding the DNA evidence, the existence of corroborative evidence, and exculpatory evidence. The note concluded by informing the prosecutor that the grand jury would be convening at 8:45 a.m. on January 11.
As part of the appellate record completion process, defendant sought to augment the record with an explanation of the procedure followed for transmitting the grand jury’s questions to the district attorney, any record of when grand jury proceedings took place, and transcripts of any communications between the grand jury and any prosecutor other than remarks contained in existing transcripts. At a hearing, the superior court appellate clerk explained that there were no other transcripts to produce. She indicated that the district attorney had told her the jury had been deliberating on January 9 and 10, so there was no transcript for those days. The jury wrote questions down on those days, transmitted the questions to the district attorney, and the questions were answered on January 11. The People indicated there was no set procedure for communicating questions from the grand jury to the district attorney and it could therefore not say how it was done in this case.
Defendant contends the record suggests the prosecutor had a number of unreported communications with the grand jury in violation of section 190.9 and Dustin v. Superior Court. He first relies on the January 9 and January 10 written questions, which he claims suggest unreported communications took place because the grand jury had to give the written questions to the prosecutor. He also places great weight on the prosecutors’ readiness to answer the questions on January 11 with live testimony, arguing this demonstrates the existence of unreported communications. We conclude that neither establishes an unreported communication took place. It is just as likely that the grand jury transmitted its notes to the district attorney in an innocuous manner without direct communication, putting the district attorney on notice that it needed to present more evidence to answer the jury’s questions. Moreover, even assuming unreported communications took place, defendant has failed to identify anything other than mere speculation to support his contention that he has suffered prejudice, i.e., that the grand jury's decision to indict may have been in some way influenced by the alleged unreported communications. (People v. Young, supra, 34 Cal.4th at p. 1170.) A defendant seeking postconviction reversal for irregularities in grand jury proceedings must establish that the complained-of errors were structural or resulted in actual prejudice relating to his conviction. (People v. Jablonski (2006) 37 Cal.4th 774, 800.) Defendant does not establish the existence of an irregularity justifying postconviction reversal.
Defendant also points to the opening sentence of the January 10 note. In it, the foreperson wrote “These 4 points are what I told the panel I had discussed with you.” This statement does indicate the foreperson had an unreported conversation with the district attorney. However, even assuming this constitutes error, defendant fails to establish the necessary prejudice to warrant postconviction reversal. (People v. Jablonski, supra, 37 Cal.4th at p. 800; People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) The statement indicates that the topic of conversation was memorialized in the note. Moreover, the contents of the January 10 note are nearly identical to the substance of the January 9 note, suggesting that the four topics identified in the two notes constitute the extent of the jury’s interest.
2. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct during the guilt phase of the trial when, in the course of examining a prosecution witness, she implied defendant could, and should, have had the DNA evidence retested. Defendant argues reversal is required because his rights under state law and the Fifth, Sixth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
Mary Hong, a crime lab forensic scientist put on by the prosecution, testified extensively about DNA, the DNA testing in the case, and on the methods and reliability of DNA testing. On cross-examination, defense counsel elicited that the crime lab, which did the DNA testing, was affiliated with the Orange County Sheriff’s Department. Defense counsel also elicited that the crime lab performed analyses for other police agencies, but that it was not open to the public nor could a private person come in and ask for assistance in doing an analysis.
On redirect examination, the prosecutor explicitly referenced defense counsel’s question about private persons not being able to obtain the crime lab’s assistance in analyzing DNA. The prosecutor then asked, “Are you familiar with a procedure where the defense can come in and actually get a split of the sample of evidence and have it tested privately in any lab that they choose?” Hong answered, “Yes,” and the prosecutor followed up by asking whether “any split [was] asked for in this particular case so that the defense could have retested any particular sample or any particular test . . . ?” Defense counsel objected and asked to approach.
The trial court excused the jury for the day and then heard counsels’ argument. Defense counsel argued that the question was irrelevant and was substantially more prejudicial than probative as the jury would infer that defendant’s failure to retest meant he agreed with the results of the People’s DNA testing. The prosecutor responded that the question was relevant to demonstrate that the evidence was available for retesting if defendant so desired. The trial court said, “That’s in.” The prosecutor then pointed out the defense counsel had opened the door by eliciting testimony about the inability of a private person to seek assistance with analysis. The court said there was a difference between the ability of a private person to request a split of a sample of evidence and whether such a split was sought by defendant in this case. The latter area of inquiry would lead to questions about the credibility and competence of defense counsel and why they did not seek a split for retesting. Accordingly, the trial court ruled the probative value was substantially outweighed by the risk of prejudice and sustained the objection to the question of whether defendant sought a split.
The next morning, defense counsel moved for a mistrial on the basis of prosecutorial misconduct. Defense counsel argued that the prosecutor’s question had implied to the jury that it was defendant’s burden to provide evidence. Failing a mistrial, defense counsel requested an admonition. The trial court denied defendant’s motion for a mistrial, explaining that the brief question did not cause such prejudice that it could not be sufficiently cured with an admonition. Further, the trial court declined to conclude the prosecutor had committed misconduct. The trial court indicated it would admonish the jury, and upon resumption of redirect examination, did in fact admonish the jury that the court had sustained defendant’s objection, that questions are not evidence, and that it should not speculate as to what the answer might have been.
Later, during the redirect examination of Ed Buse, another crime lab forensic scientist, the prosecutor asked, “And there are samples available in the crime lab on this case, so that if there were more probes —.” Defense counsel objected and asked to approach. Defense counsel argued the prosecutor’s question again insinuated that defendant had the burden to retest the DNA sample. The prosecutor responded that she, consistent with the court’s earlier ruling, was not asking whether the defense sought a sample, but rather whether there was evidence available for retesting at all. The trial court nonetheless sustained the objection, ruling that the question improperly implied defendant should have retested the available sample. The prosecutor could ask whether there was a sample available for the crime lab to test, but could not imply defendant could use it to retest if he wanted to.
During the cross-examination of Dr. Bruce Kovacs, the prosecution expert called to testify about the reliability of DNA evidence, defense counsel challenged the testing protocol followed in this case. The defense also asked Dr. Kovacs whether one of the DNA tests had gone wrong because the printout did not show a control blank. Dr. Kovacs responded that, in the specific sample counsel cited, it could not be determined whether something had gone wrong. In her redirect examination the prosecutor asked, “Would there be a way — if somebody wanted to — to see if there was a problem, that they could go back and run a control blank on this?” Defense counsel objected that the question was irrelevant and speculative, and the trial court sustained the objection as speculative. The prosecutor then asked, “Doctor, are you familiar with ways in which a sample can be tested months or years later to determine if there was any problem that existed at the time?,” to which Dr. Kovacs responded, “Yes.” Dr. Kovacs explained how DNA evidence was frozen and kept, allowing retesting. Defendant did not object.
During the cross-examination of defense DNA expert witness, Dr. William Shields, the prosecutor asked whether he, had he been asked to, could have taken evidence, such as the evidence in this case, and run an analysis. Dr. Shields testified that he could do that. The prosecutor then asked whether a National Research Counsel report recommended retesting to ensure quality control, and Dr. Shields agreed that retesting was recommended. The prosecutor continued, “In other words, retesting is a wrongly accused person’s best insurance against the possibilities of being falsely —” Defense counsel objected and the trial court sustained the objection.
During closing arguments, the court granted defense counsel’s request for an order prohibiting the prosecutor from commenting on defendant’s failure to retest the DNA evidence.
Defendant claims the prosecutor’s questions constituted reversible misconduct because they allegedly insinuated defendant should have retested the DNA evidence. We disagree.
A prosecutor’s conduct violates a defendant’s federal constitutional rights when it comprises a pattern of conduct so egregious that it infects “ ‘the trial with unfairness as to make the resulting conviction a denial of due process.’ [Citation.]” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) The focus of the inquiry is on the effect of the prosecutor’s conduct on the defendant, not on the intent or bad faith of the prosecutor. (People v. Crew (2003) 31 Cal.4th 822, 839.) Conduct that does not render a trial fundamentally unfair is error under state law only when it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ [Citations.]” (People v. Espinoza (1992) 3 Cal.4th 806, 820.)
To preserve a claim of prosecutorial misconduct for appeal, “ ‘the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have otherwise cured the harm caused by the misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858.) When a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones (1997) 15 Cal.4th 119, 168.) Whether misconduct warrants a mistrial is a decision which is within the sound discretion of the trial court. (People v. Price (1991) 1 Cal.4th 324, 430.)
Defendant first argues the prosecutor violated the work product privilege by asking questions that sought to invade defense counsel’s impressions or thought process. We initially note that the claim is forfeited because defendant failed to invoke the work product privilege as the basis of his objection or to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Furthermore, we conclude the prosecutor’s questions did not violate the work product privilege. In rejecting a nearly identical claim, we recently explained that section 1054.6 provides that the privilege applies in criminal cases only to materials or information that are work product as defined in Code of Civil Procedure section 2018.030, subdivision (a). (People v. Zamudio (2008) 43 Cal.4th 327, 351-356.) That subdivision defines work product as a “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.” (Code Civ. Proc., § 2018.030, subd. (a), italics added.) The prosecutor’s questions at issue here merely sought to clarify that, contrary to defense counsel’s implication, DNA samples were available for independent testing. As such, the prosecutor’s questions did not elicit or attempt to elicit evidence of a “writing” reflecting defense counsel’s “impressions, conclusions, opinions, or legal research or theories” and therefore did not violate the work product privilege.
Defendant also argues the prosecutor committed misconduct by blatantly ignoring the trial court’s rulings. To the contrary, the record established that the prosecutor was trying to follow what was, at times, less than clear guidance from the court. The prosecutor first asked Hong whether the defense had requested a split for retesting. The court sustained defendant’s objection, but told the prosecutor she could ask whether evidence was available for retesting. During her examination of Buse, the prosecutor asked whether samples were available for further testing. Even though the question was consistent with the court’s prior ruling, the court sustained defendant’s objection and suggested the prosecutor only ask whether evidence was available for the crime lab to retest. After defense counsel elicited testimony from Dr. Kovacs about a problem with one of the DNA tests, the prosecutor asked whether it would be possible to retest a sample to determine whether there had been any problems. Nothing about the question suggested the prosecutor was talking about retesting by the defendant, as opposed to the crime lab. Finally, when examining Dr. Shields, following up on the witness’s testimony that a report recommended retesting to ensure quality control, the prosecutor asked whether, therefore, retesting was a wrongly accused person’s best insurance against being falsely convicted. An objection was sustained and the prosecutor moved on. While the last question could be interpreted as having violated the court’s rulings, the record demonstrates that, overall, the prosecutor was attempting to follow the court’s instructions regarding what was permissible.
Defendant makes a number of other arguments that we briefly address. Defendant claims the prosecutor’s questions violated Griffin v. California (1965) 380 U.S. 609, in which the high court held the prosecution may not comment on a defendant’s failure to testify. (Id. at p. 615.) However, Griffin does not prevent a prosecutor from commenting upon the evidence or upon the failure of the defense to introduce material evidence. (People v. Bradford (1997) 15 Cal.4th 1229, 1339.) Nor did the prosecutor’s questions, as defendant asserts, violate his attorney-client privilege. The privilege protects the disclosure of “a confidential communication between client and lawyer.” (Evid. Code, § 954.) Asking whether there was evidence available for retesting, and even whether the defense sought a split of the sample, did not violate the privilege. (People v. Coddington (2000) 23 Cal.4th 529, 605.) Nor did the prosecutor’s questions shift the burden of proof onto defendant. The prosecutor did not state or imply that defendant had a duty to produce evidence. The complained-of questions merely asked whether there was evidence for retesting. Moreover, the jury was instructed that the prosecution bears the burden of proof. We presume the jury followed the instructions it was given. (People v. Prince (2007) 40 Cal.4th 1179, 1295.)
We conclude the prosecutor’s questions did not constitute reversible misconduct.
3. Jury Instructions Regarding Felony Murder
Defendant claims the trial court violated state law and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it failed to properly instruct the jury on first degree felony murder. Specifically, defendant contends the court failed to instruct the jury that, to find him guilty of first degree felony murder, it must find a concurrence of act and intent. Defendant also argues the instructions failed to properly limit the first degree felony murder doctrine. We disagree.
The prosecutor’s theory was that defendant was guilty of first degree murder both because he had committed premeditated and deliberate murder and because he had murdered Evans during the course of the felonies of rape or burglary. Its theory for the burglary was that defendant entered Evans’s condominium with the intent to steal from her and/or rape her.
After the closing arguments, the jury was instructed pursuant to CALJIC No. 8.21 that “[t]he unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of rape or burglary is murder of the first degree when the perpetrator had the specific intent to commit such crime. The specific intent to commit rape or burglary and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.” The jury was also instructed pursuant to CALJIC 3.30 that, for the crimes of forced oral copulation and rape, “there must exist a union or joint operation of act or conduct and general criminal intent.” The jury was instructed pursuant to CALJIC No. 3.31, that, for the “crimes of burglary and robbery and the special circumstance allegations of murder during the commission of burglary and murder during the commission or attempted commission of rape, there must be a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.”
Defendant contends these instructions failed to convey that, in order to find him guilty of first degree murder, the jury needed to find a concurrence of act and intent — namely, that defendant formed the intent to commit rape or burglary before or during, rather than after, the application of force to the victim. We disagree. We have previously rejected an identical attack on similar instructions. In People v. Pollack (2004) 32 Cal.4th 1153, the defendant was charged with first degree felony murder and, like defendant here, claimed the trial court had erroneously failed to instruct the jury “on the concurrence of act and specific intent required for first degree felony murder . . . .” (Id. at p. 1175.) The Pollack trial court gave the jury the same standard instructions given here, namely CALJIC Nos. 3.31 and 8.21. (Id. at pp. 1175-1176.) We concluded that the instructions given were sufficient. (Id. at p. 1176.) “More specific instructions on this issue are considered pinpoint instructions that the trial court is required to give only upon request [citation] . . . .” (Ibid.) As in Pollack, defendant did not request more specific instructions, nor did he object to the instructions given by the court.
Moreover, even assuming the trial court erred, any error was harmless beyond a reasonable doubt as any defect clearly did not affect the verdict. (People v. Harris (2008) 43 Cal.4th 1269, 1300.) In addition to finding defendant guilty of first degree felony murder, the jury returned a true finding on the charged special circumstances. In order to find true the special circumstance allegations of murder during the commission of burglary and murder during the commission or attempted commission of rape, which it ultimately did, the jury was instructed it had to find there was “a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator.”
Defendant also argues the instructions did not convey that the felony cannot be “incidental” to the murder. However, we concluded in Pollack that the standard instructions adequately inform the jury “that the defendant must apply the force for the purpose of accomplishing the taking.” (People v. Pollack, supra, 32 Cal.4th at p. 1176, italics added.) Defendant contends the instructions failed to inform the jury that the murder and the felony must be part of a “continuous transaction.” To the contrary, the instructions properly informed the jury that, to find defendant guilty of first degree murder, it had to find the killing “occur[red] during the commission or attempted commission of rape or burglary . . . .” (Italics added.) Finally, defendant argues the instructions did not adequately convey that the intent to steal must have been formed before or during the application of force to the victim. We rejected this very argument in Pollack. (Ibid.)
We accordingly conclude the trial court adequately instructed the jury on first degree felony murder.
4. Cumulative Error
Defendant contends the cumulative effect of the various errors committed during the guilt phase requires reversal of his conviction. As we have rejected the individual claims of error, we conclude there is no cumulative error requiring reversal.
B. Penalty Phase Issues
1. Request to Empanel a Separate Jury
Defendant claims the trial court violated state law and his rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when it denied his motion to empanel a separate jury for the penalty phase. We conclude the trial court did not err.
Defendant’s guilt phase strategy was to argue the state had failed to meet its burden of proving beyond a reasonable doubt that he had committed the charged crimes. After defendant was convicted, his counsel moved to empanel a new jury for the penalty phase, arguing that his penalty phase defense would be inconsistent with what was argued at the guilt phase. At the penalty phase, defendant intended to establish that he had admitted his guilt to his family and counsel early on in the proceedings, that he felt remorse, and that he had wanted to plead guilty, but was talked out of it by his attorneys. Defense counsel argued that, in light of the strategy employed during the guilt phase, the currently impaneled jury would disbelieve defendant and his attorneys.
The trial court denied defendant’s motion, noting that his guilt and penalty phase strategies were not inconsistent, different defense attorneys would be handling the guilt and penalty phases, the court would admonish the jury that defendant’s exercise of his right to a trial was not to be considered during deliberations, and that, even if the two strategies were arguably in tension with one another, tactical decisions do not constitute good cause to empanel a separate jury. The trial court concluded that a new jury was not warranted under state law or under the federal Constitution.
Section 190.4, subdivision (c) provides that the same jury that decided guilt in a death penalty case “shall consider . . . the penalty to be applied, unless for good cause shown the court discharges that jury . . . .” (Italics added.) While a trial court retains discretion to empanel a separate jury, there is a “ ‘ “long-standing legislative preference for a single jury to determine both guilt and penalty.” ’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 114; People v. Yeoman (2003) 31 Cal.4th 93, 119; People v. Kraft (2000) 23 Cal.4th 978, 1069.) We review a trial court’s ruling on a motion to empanel a separate penalty phase jury for abuse of discretion. (People v. Kraft, supra, 23 Cal.4th at p. 1069.)
Defendant contends that his desire to employ allegedly “conflicting” strategies constituted good cause to empanel a separate penalty phase jury. We disagree. Even assuming defendant’s guilt and penalty phase strategies were in tension with one another, a counsel’s tactical decision to present inconsistent defenses “do[es] not, without more, constitute good cause.” (People v. Catlin, supra, 26 Cal.4th at p. 115; People v. Pride (1992) 3 Cal.4th 195, 252; People v. Taylor (1990) 52 Cal.3d 719, 737-738.) Additionally, defendant’s assertion that his and his counsel’s credibility would be undermined was too speculative to establish sufficient good cause. (People v. Pride, supra, 3 Cal.4th at p. 253; People v. Taylor, supra, 52 Cal.3d at p. 738.)
Nor were defendant’s constitutional rights violated by having the same jury decide the guilt and penalty phases. The high court has repeatedly rejected such claims, explaining that the federal Constitution permits “the same jury [to] sit in both phases of a bifurcated capital murder trial.” (Lockhart v. McCree (1986) 476 U.S. 162, 180; Buchanan v. Kentucky (1987) 483 U.S. 402, 417.) This court has reached the same conclusion. (People v. Catlin, supra, 26 Cal.4th at p. 115; People v. Johnson (1992) 3 Cal.4th 1183, 1244; People v. Balderas (1985) 41 Cal.3d 144, 204-205.) Nothing warrants revisiting the issue.
We therefore conclude the trial court did not err when it denied defendant’s motion for a separate jury.
2. Exclusion of Defendant’s Execution-impact Evidence
Defendant contends the trial court violated state law and his constitutional rights when it excluded an expert’s testimony about the impact defendant’s execution would have on his son and stepson. Defendant argues that the testimony should have been permitted as mitigation evidence indirectly relevant to his character. We disagree.
During the penalty phase, the defense indicated its intent to have Dr. Kaser-Boyd testify about the effect defendant’s execution would have on his children. The prosecutor indicated she would object to such testimony because it would be speculative and would constitute irrelevant execution-impact evidence. After some discussion between counsel and the court, defense counsel asked the court to defer ruling so that he could talk with Dr. Kaser-Boyd to get a better sense of the possible testimony.
The next morning, defense counsel told the court Dr. Kaser-Boyd would testify that, when a child loses a parent for any reason, “there is a feeling of abandonment and grief . . . that often can interfere with normal development” and result in feelings of anxiety or distrust, whereas those feelings would be less if the defendant were sentenced to life without parole. The prosecutor objected to the proposed testimony because it would constitute impermissible execution-impact evidence and would be speculative. The prosecutor also argued that the effect that losing one’s parent would have on a child was not a proper subject for expert testimony because the jury was capable of considering the impact on its own. The trial court sustained the prosecutor’s objection and excluded the evidence, but it made clear that the defense would still be able to solicit testimony from Dr. Kaser-Boyd regarding defendant’s character, nature, and potential for future contribution.
We conclude the trial court did not err. The impact of a defendant’s execution on his or her family may not be considered by the jury in mitigation. (People v. Smith (2005) 35 Cal.4th 334, 366-367; People v. Smithey (1999) 20 Cal.4th 936, 1000; People v. Ochoa (1998) 19 Cal.4th 353, 454-456 (Ochoa).) In Ochoa, we explained it is a defendant’s background and character, and “not the distress of his or her family,” that is relevant under section 190.3. (19 Cal.4th at p. 456.) We distinguished between “evidence that [a defendant] is loved by family members or others, and that these individuals want him or her to live. . . . [and evidence about] whether the defendant’s family deserves to suffer the pain of having a family member executed.” (Ibid.) The former constitutes permissible indirect evidence of a defendant’s character while the latter improperly asks the jury to spare the defendant’s life because it “believes that the impact of the execution would be devastating to other members of the defendant’s family.” (Ibid.)
In arguing that the trial court erred when it excluded part of Dr. Kaser-Boyd’s testimony, defendant contends it constituted permissible evidence of defendant’s character. We disagree. As defense counsel told the trial court, Dr. Kaser-Boyd intended to testify that defendant’s execution would have a “damaging effect” on his children and the children would have “a feeling of abandonment and loss” requiring therapy and intervention. Such testimony, rather than “illuminat[ing] some positive quality of the defendant’s background or character” (Ochoa, supra, 19 Cal.4th at p. 456), was impermissible execution-impact evidence intended to make the jury feel “sympathy for . . . defendant’s family.” (Ibid.)
Defendant alternatively argues that, even if the testimony constituted execution-impact evidence, the trial court should have nonetheless allowed it. Defendant acknowledges we rejected an identical claim in Ochoa, but he argues our decision was wrongly decided for several reasons. None are persuasive.
Defendant first asserts that Ochoa conflicts with the high court’s decision in Payne v. Tennessee (1991) 501 U.S. 808. There, the high court held that victim-impact evidence is admissible during the penalty phase. (Id., at pp. 811, 829.) Defendant argues the high court’s decision contains an implicit recognition capital defendants have the right to introduce execution-impact evidence. To the contrary, the high court made clear, consistent with Ochoa, that a defendant must be allowed to introduce mitigating evidence “concerning his own circumstances.” (Payne, supra, 501 U.S. at p. 822, italics added.) As we have explained, execution-impact evidence is irrelevant under section 190.3 because it does not concern a defendant’s own circumstances but rather asks the jury to spare defendant’s life based on the effect his or her execution would have on his or her family. (Ochoa, supra, 19 Cal.4th at p. 456.) We further concluded that nothing in the federal Constitution requires a different result (id., at p. 456) and defendant identifies no reason to reconsider our conclusion.
Defendant next argues section 190.3, which permits the prosecutor and defendant to introduce evidence “as to any matter relevant to aggravation, mitigation, and sentence,” should be construed to permit execution-impact testimony as evidence relevant to mitigation and sentence. We rejected this construction in Ochoa, supra, 19 Cal.4th at page 456, and we see no reason to revisit the issue. Defendant’s argument rests on the use of the word “mitigation” in statutes governing determinate sentencing (§ 1170) and probation (§ 1203). Neither statute is analogous to section 190.3. Unlike those statutes, section 190.3 identifies examples of matters relevant to aggravation, mitigation, and sentence including, but not limited to “the circumstances of the present offense, any prior felony conviction . . . , and the defendant’s character, background, history, mental condition and physical condition.” We concluded that, “[i]n this context, what is ultimately relevant is a defendant’s background and character — not the distress of his or her family.” (Ochoa, supra, 19 Cal.4th at p. 456, italics added.) The statutes cited by defendant have no bearing upon this court’s construction of section 190.3.
We conclude the trial court did not err when it excluded the portion of Dr. Kaser-Boyd’s testimony concerning the effect defendant’s execution would have on his children.
3. Other Penalty Phase Evidentiary Rulings
Defendant contends the trial court made four erroneous evidentiary rulings that allowed the prosecutor to wrongly impeach defendant’s mitigation witnesses. Defendant claims these rulings violated state law and the federal Constitution requiring reversal of the penalty verdict. We disagree.
While a capital defendant must be permitted to offer any relevant mitigating evidence (§ 190.3; People v. Marlow (2004) 34 Cal.4th 131, 152; Skipper v. South Carolina (1986) 476 U.S. 1, 4-8), this does not “ ‘abrogate[] the California Evidence Code.’ [Citation.]” (People v. Phillips (2000) 22 Cal.4th 226, 238.) The trial court retains the discretion to exclude irrelevant evidence. (People v. Marlow, supra, 34 Cal.4th at p. 152.) We address each challenged ruling in turn.
a. Direct Testimony of Defendant’s Mother
Defendant’s mother was the first defense witness. She testified after Christine Hougan testified about the impact her mother’s death had on her. Defense counsel asked defendant’s mother whether there was “something you wanted to say first before we got to the formal questioning?” The prosecutor objected that there was no question pending and the trial court sustained the objection. Defense counsel then asked, “Did hearing Christine Hougan’s testimony move you to want to say something?” Defendant’s mother responded “Yes” and defense counsel inquired “What’s that?” The prosecutor objected and the trial court sustained the objection on relevance grounds. The parties then approached the bench.
The trial court said it suspected that defendant’s mother, like everyone in the courtroom, felt bad for Christine Hougan, but the fact that she felt sorry for the victim’s family was neither relevant nor admissible as mitigating evidence. Defense counsel argued that the testimony was relevant to the credibility of defendant’s mother. Counsel explained that defendant’s mother would testify that it was very hard and that “if she could undo it herself, she would.” The trial court ruled that defense counsel was trying to demonstrate the character of defendant’s mother, which was irrelevant.
Defendant contends the trial court erred by excluding relevant evidence concerning the credibility of defendant’s mother, violating his rights under state law and the federal Constitution. We disagree. Evidence Code section 780 permits credibility evidence “that has any tendency in reason to prove or disprove the truthfulness of [the witness’s] testimony.” (Italics added.) Defendant does not explain how his mother’s desire to “undo” the murder was relevant to her truthfulness. The trial court did not abuse its discretion in concluding the testimony was irrelevant. (People v. Marlow, supra, 34 Cal.4th at p. 152.)
b. Direct Testimony of Rick Wentworth
Rick Wentworth, an elder in the Jehovah’s Witness church, was called as a defense witness. Wentworth testified that he was asked to visit defendant in jail and that they established a relationship. He testified that defendant expressed an interest in Bible study and that he visited defendant about three times a month over the previous year and a half. Wentworth and defendant discussed family, friends in the congregation, and then had a formal study. Defense counsel then asked Wentworth whether defendant discussed any concerns about his own plight and Wentworth answered “no.” Defense counsel asked “What areas has he expressed concern about to you?” The prosecutor objected and asked to approach the bench. Defense counsel said that Wentworth would testify that defendant had “expressed concern about his family — that’s all — and how they’re handling it.” The prosecutor said the testimony constituted improper testimony about the impact on defendant’s family and was also hearsay. The trial court agreed that it appeared to be hearsay. Defense counsel replied that the testimony fell into the state of mind exception (Evid. Code, § 1250). The trial court responded that even so, it was irrelevant.
Defendant argues that the trial court erred and we agree. Evidence that defendant was concerned about how his family was doing was relevant in mitigation “because it constitutes indirect evidence of the defendant’s character.” (Ochoa, supra, 19 Cal.4th at p. 456.) However, even assuming the error violated defendant’s constitutional rights, the erroneous exclusion of the evidence was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Cole (2004) 33 Cal.4th 1158, 1195.) Defendant introduced ample alternative evidence of his relationship with his family. Defendant’s wife testified extensively about her love for him, how he had wanted to plead guilty to avoid causing more pain for his family, his character, and his relationship with her and with his children. Additionally, Dr. Kaser-Boyd testified at length about the children’s bond with defendant, their love for him, and how they would benefit from a continuing relationship if he were allowed to live. Thus, even without the excluded testimony, the jury was presented with substantial evidence of defendant’s relationship with his family and his concern for them. There is no reasonable possibility that the jury would have returned a different sentence even if Wentworth had been permitted to testify that defendant had inquired after his family’s well-being.
c. Cross-examination of Defendant’s Wife
During the prosecutor’s cross-examination of defendant’s wife, the prosecutor asked whether she was encouraging the relationship between defendant and his children because she thought it would help him and she answered, “No, not true at all.” The prosecutor then asked whether she had ever brought the children to court and she said that, while she had not, someone else had. The prosecutor asked “Was the purpose of bringing your children here to court to give —,” at which point the court interjected that the prosecutor’s question called for speculation because the witness had testified that she did not bring the children to court. The prosecutor continued cross-examining defendant’s wife who testified that she was aware the children had been brought to court. The prosecutor then began, “You relinquished the children to somebody —,” whereupon defense counsel objected and asked to approach the bench.
Defense counsel argued the prosecutor was improperly insinuating that the children were “brought to court to be spectacles to the jury which I think is improper and prejudicial and has very little probative value.” The prosecutor countered that, “If she allowed the children to be brought to court and knew that was the purpose it goes to her bias and goes to her willingness to use her kids for show.” The prosecutor also pointed out that defense counsel had mentioned the children’s presence in court in the opening statement. The trial court ruled that the prosecutor could ask whether defendant’s wife allowed the children to be brought to court, but not whether they were brought by another person. The prosecutor continued his cross-examination, asking whether defendant’s wife had allowed the children to be brought to court, to which she answered “Yes.”
Defendant argues the trial court erred in admitting irrelevant testimony that was more prejudicial than probative. We disagree. The question was relevant to the witness’s credibility. Defendant’s wife had testified that she encouraged the contact between defendant and his children and that she wanted to stay married because she thought it would help defendant. Whether she also intended to help him by encouraging his relationship with his children or allowing them to be brought to court was relevant to her credibility. (Evid. Code, § 780, subd. (f).) We also disagree that the question and witness’s response were more prejudicial than probative. There was no risk of prejudice since, even without the testimony, the jury could have inferred from the children’s presence in court that their mother had allowed them to attend. The testimony, on the other hand, was probative of the witness’s credibility. The trial court did not err.
d. Cross-examination of James Waltz
James Waltz, an attorney and a Jehovah’s Witness, was called by the defense and testified on direct examination that he had been asked by defendant’s wife’s grandmother to speak with defendant in jail regarding a disagreement between defendant and his attorneys over whether defendant should plead guilty. Waltz testified that he advised defendant of the legal and religious aspects of going to trial, ultimately recommending that defendant cooperate with his attorneys.
On cross-examination, Waltz acknowledged that he knew defendant had been charged with a capital crime when he went to meet with him. He also testified that he was a devout member of the Jehovah’s Witness church. The prosecutor then asked a series of questions about whether Waltz was personally opposed to the death penalty. Defense counsel objected on relevance grounds, but the objection was overruled. In response to a question asking whether he would “ever vote for the death penalty?,” Waltz answered “No.” The prosecutor continued, “And isn’t that, in part, your Jehovah Witness connection with the defendant and your opposition to the death penalty, aren’t those really the reasons why —,” to which Waltz responded, “I’m not opposed to the death penalty.” The prosecutor followed up, “You just personally would never vote for it. Is that right?” and Waltz answered, “Correct.”
Defendant contends the trial court erred in permitting the prosecutor to ask these questions, arguing that the testimony was irrelevant and more prejudicial than probative. We disagree. The witness’s personal philosophical opposition to the death penalty is relevant to his credibility. (Evid. Code, § 780, subd. (f); see People v. Mickle (1991) 54 Cal.3d 140, 196 [expert’s philosophical views on capital punishment might disclose bias].) Defendant’s claim that the testimony was more prejudicial than probative is forfeited by his failure to object on that ground at trial. (People v. Ashmus (1991) 54 Cal.3d 932, 972, fn.10.) Even were the claim not forfeited, it is without merit. The value of giving the jury a full and accurate view of Waltz’s credibility was not substantially outweighed by the probability of a substantial danger of undue prejudice. (Evid. Code, § 352.)
Defendant claims the above evidentiary rulings, singly and cumulatively, violated his constitutional rights. We disagree. The trial court’s exclusion of Wentworth’s statement was the only error and it does not require reversal.
4. Prosecutorial Misconduct During Cross-examination
Defendant argues that, during the cross-examination of two defense witnesses, the prosecutor committed misconduct by improperly insinuating defendant had committed other crimes. He contends the alleged misconduct violated state law and the federal Constitution requiring reversal. We disagree.
a. Background
Defendant identifies four alleged examples of misconduct. The first instance occurred during the prosecutor’s cross-examination of Jenks Janes, a Jehovah’s Witness and recovering addict who testified on direct examination that he took defendant to an Alcoholics Anonymous meeting in August or September 1994. On cross-examination, Janes testified that defendant wanted to go to the meeting because he wanted to turn his life around and that Janes believed defendant to be sincere. The prosecutor then asked whether defendant had expressed any other reason for going to the meeting and whether defendant had told Janes that he had been ordered to attend such meetings. Janes answered “no” to both questions. The prosecutor sought to have a document marked as an exhibit and the court asked the attorneys to approach the bench.
At sidebar, the prosecutor said she had a certified copy of a court order, dated October 11, 1994, requiring defendant to attend two Alcoholics Anonymous meetings per week. She intended to ask the witness whether defendant had ever told him that he had been ordered to attend meetings. Defense counsel argued the document was hearsay and pointed out that the order’s date was after the meeting discussed by the witness. The prosecutor noted the timing did not mean defendant was not aware, prior to the order, that he would be ordered to attend the meetings. Defense counsel argued it was irrelevant and requested an admonition because the reference to the order had “created a false impression of the facts.” The prosecutor said defendant had been arrested for driving under the influence in August 1994 and one could infer he had a motive for attending the meetings other than turning his life around.
The court was dubious of the prosecutor’s rationale and was concerned about the order being dated months after the Alcoholics Anonymous meeting about which the witness was testifying. The trial court said it would admonish the jury that there was no order that defendant attend an Alcoholics Anonymous meeting in August 1994. While the court acknowledged that evidence of defendant’s arrest was relevant to defendant’s motivation for attending the meetings, it concluded that the prosecutor’s mention of a court order suggested that not only had defendant been arrested, but that he had also been convicted and had a prior crime. Accordingly, the court concluded that further testimony about the arrest or the order would be more prejudicial than probative.
The trial court admonished the jury, reminding them that questions are not evidence and that they should not make any assumptions based on a question being asked. Additionally, the court told the jury that “[s]pecifically as to any court orders, you should disregard any question with respect to that and not draw any inferences that there was ever any court order.” In response to the defense counsel’s request, the court further clarified that, “[y]ou should not assume that because there is no evidence that there was such a court order.” The cross-examination proceeded and the prosecutor did not return to the topic.
The second alleged instance of misconduct occurred later the same day during the prosecutor’s cross-examination of defendant’s wife. On direct examination, defendant’s wife testified defendant told her, after he had been arrested for murdering Evans, that he had also raped Pamela B. On cross-examination, the prosecutor inquired about the night defendant raped Pamela B. After asking some initial questions about the events of the evening, the prosecutor asked whether the witness suspected defendant had committed the rape and defendant’s wife answered “No.” The prosecutor then asked, “Does he have a ninja mask?” The witness answered, “No.”
The third alleged instance of misconduct also occurred during the cross-examination of defendant’s wife. The prosecutor questioned defendant’s wife about defendant’s drug use. The witness testified defendant used drugs throughout most of her pregnancy with their younger child and during his relationship with his stepson. The prosecutor asked whether defendant was “spending the money that he made at work, in part, on drugs.” The witness responded, “Some of it.” After eliciting testimony that defendant and his wife had been experiencing financial problems and that it was expensive to raise two children, the prosecutor asked, “[b]ut he was spending some of the money on his choice, which was methamphetamine. Is that right?” The witness answered, “Yes.” The prosecutor asked, “How was he getting all this money to support this drug habit that he had?” and the witness responded, “From work.” Later the prosecutor asked a series of questions about defendant’s conduct around the time of the rape and the murder in an effort to show that defendant was not remorseful or affected by the crimes he had committed. As evidence, the prosecutor elicited testimony that defendant had, in the days after killing Evans, purchased a brand new Toyota, was not “crying himself to sleep at night,” and took his wife out for a romantic dinner.
The fourth alleged instance of misconduct also came during the cross-examination of defendant’s wife. The prosecutor asked defendant’s wife a series of questions about photographs of defendant and his family that had been admitted into evidence. The prosecutor elicited that one of the photographs, taken in 1991, showed defendant with long hair. The prosecutor then began to show the witness a photograph to see whether it accurately reflected the way defendant used to look. Defense counsel requested a sidebar at which she challenged the relevance of the photograph. The prosecutor explained the photographs showed defendant had changed his appearance, including the length and color of his hair, from time to time. The prosecutor argued defendant’s altering of his appearance “shows a manipulative kind of character.” The trial court was unconvinced, but did not rule on the objection nor did defendant press for a ruling. Back in front of the jury, the prosecutor asked the witness whether defendant had changed his appearance. Defense counsel objected on relevance grounds and the trial court sustained the objection.
At the conclusion of the day’s testimony, after the jury had been excused, the trial court indicated it had some concerns. The trial court said that, during the guilt phase closing arguments, the prosecutor told the jury, “I’m sure you have many questions in your mind. If you don’t now, you will in the course of deliberation. And at the conclusion of this phase, the next — I won’t be able to talk to you at the conclusion of this phase. But at the end of your service on this case, I’ll be available to answer any questions that you have.” The next day, defense counsel objected and requested an admonition, arguing that the prosecutor’s closing argument had implied that there was additional evidence indicating defendant’s guilt that the prosecutor could discuss with the jury at the conclusion of the case. The prosecutor explained that she was merely referring to a general ability to talk to the jury and answer any procedural questions. The trial court credited the explanation and denied defendant’s request for an admonition and a mistrial.
The trial court now expressed its concern that, in light of the prosecutor’s comments during the guilt phase closing argument, the questions about defendant changing his appearance and about the source of his money could invite a defense argument that the jury was being urged to speculate whether there were other crimes. The prosecutor responded that, regarding defendant’s finances, she was merely trying to show that defendant was choosing to spend his income from work on drugs rather than on his children, and not to imply anything else. Regarding her comments at sidebar about how defendant’s change in appearance could be evidence of manipulative behavior, the prosecutor said she noticed the way the court looked at her and she decided to “rethink that area.” Regarding the questions about the “ninja mask,” the prosecutor argued that whether defendant’s wife noticed a mask went to the witness’s credibility. Defense counsel pointed out that there had never been testimony about a mask, but rather of a T-shirt that was tied around defendant’s face “ninja style.” The court indicated it had no problem with the ninja question in light of Pamela B.’s testimony. Defense counsel explained that she did not object to the question about defendant’s spending of money because it was phrased in a way that made it clear that it referred to defendant’s decision to spend money on drugs rather than his children and “the answer was not a problem.” The court adjourned for the day.
The following morning, defense counsel moved for a mistrial based on prosecutorial misconduct. Defense counsel identified four alleged instances of misconduct: (1) the prosecutor’s mention of a court order in relation to defendant’s motive for attending an Alcoholics Anonymous meeting; (2) the prosecutor’s question about a ninja mask; (3) the prosecutor’s questions regarding where defendant got the money to purchase drugs and regarding his purchase of a new Toyota; and (4) the questions regarding defendant changing his appearance. Defense counsel argued that, cumulatively, the prosecutor’s questions invited the jury to draw an inference that “this person is going out with a ninja mask and other crimes are being done . . . and there are all kinds of crimes nobody knows about . . . .”
The prosecutor responded that the questions regarding defendant’s motive for going to the Alcoholics Anonymous meetings were relevant and reasonable in light of the timing of defendant’s arrest and Janes’s memory of the timeline. She also pointed out that the trial court had admonished the jury to disregard the mention of the court order. Regarding the reference to the ninja mask, the prosecutor pointed out that Pamela B. had herself described the face-covering defendant was wearing during the rape in similar terms. With regard to defendant’s spending, the prosecutor explained that she wanted to show defendant was choosing to spend his money on drugs, rather than on his children, and that her question about where the money came from was merely to see whether defendant had been taking the money from other sources such as a savings account or an inheritance. With regard to defendant changing his appearance, the prosecutor pointed out that Pamela B.’s neighbor had told the police that she thought defendant’s wife dyed his hair after the rape. The prosecutor thought evidence of defendant changing his appearance, especially with his wife’s help, went both to defendant’s lack of remorse as well as his wife’s bias.
After listening to both counsels’ arguments, the trial court concluded that there was not sufficient evidence to demonstrate prosecutorial misconduct and denied the request for a mistrial. The trial court concluded that evidence of defendant spending money on drugs instead of his children despite limited financial resources was probative. Additionally, evidence that defendant changed his appearance immediately after the rape was probative of his lack of remorse. While the court felt that evidence of defendant’s motivation for attending Alcoholics Anonymous meetings was relevant, it concluded that evidence about the court order was more prejudicial than probative. However, the court noted that it had already adequately admonished the jury. Defense counsel asked the court to admonish the jury that there was no other criminal activity related to other factors in the case and, in response, the court invited defense counsel to submit a proposed special instruction. The court, at defense counsel’s request, also directed the prosecutor to limit questions about defendant’s finances to the limited nature of the resources, rather than the source of the money. The court also excluded any further questioning with respect to defendant’s occasional changing of his appearance, but concluded that evidence of defendant changing his appearance immediately after the rape was permissible. The penalty phase proceeded.
Defendant did not submit a proposed instruction to the trial court admonishing the jury that there was no other criminal activity related to other factors in the case.
b. Analysis
Defendant argues that the prosecutor committed prejudicial misconduct by asking questions of Jenks Janes and defendant’s wife that improperly implied defendant had committed other crimes. He further argues the trial court erred by denying his motion for a mistrial and concludes that the misconduct and denial of his motion for a mistrial require reversal of the penalty verdict. We disagree.
At the outset we note defendant has forfeited this claim. After the trial court denied his motion for a mistrial, defendant asked the court to admonish the jury that there was no other relevant criminal activity. In response, the court invited defendant to submit a proposed instruction to give to the jury. Such an instruction could have cured any potential harm by informing the jury there was no evidence defendant had committed other crimes. Defendant’s failure to submit an instruction, even after the court invited him to do so, forfeits the claim. (People v. Earp, supra, 20 Cal.4th at p. 858.)
Even were the claim not forfeited, we conclude it is without merit. Regarding the cross-examination of Janes, defendant argues the prosecutor committed misconduct by attempting to elicit inadmissible evidence about defendant’s conviction for driving under the influence. We disagree. The point of the prosecutor’s question was to establish that defendant had an alternative motive for going to Alcoholics Anonymous meetings, not to prove he had been convicted of another crime. This was, as the trial court acknowledged, a logical inference that reasonably could be drawn from the evidence. (People v. Stewart (2004) 33 Cal.4th 425, 491-492.) Additionally, even if the question was improper, defendant suffered no prejudice. The trial court sustained defendant’s objection and admonished the jury to disregard the question and not draw any inferences from it. We assume the jury followed the admonition and that prejudice was therefore avoided. (People v. Jones, supra, 15 Cal.4th at p. 168.) Moreover, while the question made reference to defendant being “ordered” to go to meetings, it made no mention of a court order. Further, the court specifically admonished the jury there was no evidence of a court order. Thus, there is no “ ‘reasonable likelihood that the jury construed or applied any of the [prosecutor’s] complained-of remarks in any objectionable fashion.’ [Citation.]” (Ochoa, supra, 19 Cal.4th at p. 427.)
Regarding the prosecutor’s mention of a “ninja mask,” defendant argues the prosecutor insinuated defendant kept a mask to “disguise himself while committing more crimes.” To the contrary, the brief reference obviously alluded to Pamela B’s description of the disguise defendant used during the sexual assault. For that reason, the trial court stated, “I don’t see the ninja mask question being particularly significant.” The question did not constitute misconduct. Nor is there a reasonable likelihood the jury interpreted the question to mean defendant kept a ninja mask for use in a crime spree.
Regarding the question about defendant’s money, defendant argues the prosecutor implied defendant “was out committing other robberies and burglaries” to obtain money. We disagree. With regard to the source of defendant’s money, in context it is clear the question was part of an effort to show defendant chose to spend his limited resources on drugs rather than on his children. Indeed, in explaining her decision not to object to the question, defense counsel admitted as much. The question therefore did not constitute misconduct. Moreover, defendant suffered no prejudice. It was a single, brief question, defendant’s wife’s answer indicated the source of defendant’s money was his job, and the prosecutor moved on without following up.
The same is true of the prosecutor’s reference to defendant purchasing a new Toyota. The prosecutor was asking questions in an effort to show defendant was not acting remorseful or as if he had been affected by his commission of the crimes. To that end, the prosecutor elicited that defendant had taken his wife out for a romantic dinner, was sleeping well at night, and purchased a new Toyota. The reference to defendant purchasing a new Toyota was clearly intended to establish defendant was living a normal life, not that he was spending money other than that earned at work. The statement did not constitute misconduct. Additionally, there is no reasonable likelihood that the jury construed the stray reference to the new Toyota to mean defendant was engaged in a crime spree to get more money.
Regarding the question about the change in appearance, defendant argues the prosecutor committed misconduct by insinuating defendant was disguising himself in order to commit other crimes. We disagree. At sidebar, the prosecutor explained she thought defendant’s changes in appearance were probative of his “manipulative kind of character.” While the trial court was doubtful of the prosecutor’s theory of relevance, it did not rule on defendant’s objection nor did defendant press for a ruling. Back in front of the jury, the prosecutor asked the witness whether defendant had changed his appearance over the course of their relationship. Defense counsel immediately objected and the trial court sustained the objection. There was no misconduct. First, the prosecutor did not insinuate defendant was disguising himself to commit other crimes and there is no reasonable likelihood the jury construed her question in such a fashion. Second, the prosecutor did not violate a court order as the trial court did not rule on defendant’s objection and defendant failed to press for a ruling. Third, even if the prosecutor’s question was misconduct, defendant suffered no prejudice. It was a brief question, defendant’s objection was immediately sustained before the witness answered, and the prosecutor did not return to the subject.
Because we conclude the complained-of remarks did not constitute misconduct, either cumulatively or on their own, we also conclude the trial court did not err in denying defendant’s motion for a mistrial. That decision is within the sound discretion of the trial court (People v. Price, supra, 1 Cal.4th at p. 430) and the trial court did not abuse its discretion here.
5. Prosecutorial Misconduct During Closing Argument
Defendant identifies numerous alleged examples of prejudicial misconduct committed by the prosecutor during her penalty phase closing argument. Specifically, defendant claims reversal is required because the prosecutor mischaracterized the evidence, speculated about defense strategy, ignored the trial court’s rulings, and argued facts not in evidence. We disagree.
The prosecutor began her closing argument by discussing defendant’s rape of Pamela B. The prosecutor argued that, when Pamela B. tried to escape from defendant, he “lunged toward her with the knife.” Defense counsel objected that the argument misstated the evidence. The trial court did not rule on the objection, but nonetheless admonished the jury that it was “the exclusive judge of the evidence.” The argument did not misstate the evidence. Pamela B. testified that defendant had a knife in his hand during the entire assault and that, after she escaped and ran outside, defendant chased after her and “lunged at [her].” The prosecutor correctly recounted the testimony or, at a minimum, drew reasonable inferences from the testimony. (People v. Williams (1997) 16 Cal.4th 153, 221.) Additionally, we assume the jury followed the court’s admonition, avoiding any prejudice. (People v. Jones, supra, 15 Cal.4th at p. 168.)
The prosecutor later addressed Dr. Kaser-Boyd’s testimony. Discussing the expert’s statement that defendant had been “the victim of a child molest[er]. . . . the victim of a social system . . . the victim of a dysfunctional family,” the prosecutor argued defendant “wants to be the victim. He wants you to see him as the victim.” Defense counsel objected. At sidebar, the trial court stated that, so long as the argument was about the defense, rather than defendant, the prosecutor’s attack on the mitigation evidence was permissible. We agree. Prosecutors are allowed “wide latitude in penalty phase argument, so long as the beliefs they express are based on the evidence presented. [Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 613.) The prosecutor’s argument was a fair comment on defendant’s mitigation evidence, specifically Dr. Kaser-Boyd’s testimony, and did not constitute misconduct.
The prosecutor continued to address Dr. Kaser-Boyd’s testimony, telling the jury it should reject her opinion because of her failure to use certain tests in assessing defendant. The prosecutor suggested Dr. Kaser-Boyd might have chosen not to give certain tests because she knew they would hurt the defense. Defense counsel objected and the trial court sustained the objection, ruling, “You can’t speculate as to defense counsel strategy.” The prosecutor then argued that the expert’s failure to give certain tests and to talk to defendant about his crimes undermined the value of her opinion. The prosecutor also argued that, as a result, certain relevant questions could not be asked. Defense counsel objected and the trial court again told the prosecutor not to speculate as to counsel’s reasoning process.
The prosecutor continued, specifically identifying particular questions she could have asked the expert had the expert talked to defendant about his crimes. Defense counsel objected and the court asked both counsel to approach and told the prosecutor that she was not permitted to speculate “as to why the defense did this or that.” Defense counsel complained that the prosecutor had ignored several of the court’s rulings and moved for either a mistrial or an admonition. The trial court indicated that it did not believe the prosecutor had violated a court order, but that she had kept to addressing what the expert had or had not said in her testimony. The trial court ruled the prosecutor could argue that the expert’s failure to give certain tests prevented the prosecutor from asking critical questions and, therefore, that the expert’s testimony should be given less weight. The trial court agreed that the prosecutor should not speculate about why the information was not offered. The trial court denied defendant’s motion for a mistrial, but admonished the jury that it should decide the case “based on the evidence and the law” and not “speculate as to why counsel did or did not do something or what they knew or did not know either in evidence or in argument.”
Defendant contends the prosecutor committed misconduct by improperly commenting on defense strategy and ignoring the trial court’s rulings. We disagree. After the trial court sustained defendant’s objection to the prosecutor’s hypothesizing about why the expert did not give certain tests, the prosecutor did not return to the subject. She subsequently argued that the expert’s testimony should be given less weight due to her failure to give certain tests. As the trial court concluded, such argument was not improper. “Prosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] . . . [A]nd counsel can argue from the evidence that a witness’s testimony is unsound, unbelievable, or even a patent lie. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 522.) Even assuming the prosecutor’s comments were improper, the trial court sustained defendant’s objection and admonished the jury not to speculate about defense counsel’s strategy. We assume any prejudice was thereby avoided. (People v. Jones, supra, 15 Cal.4th at p. 168.)
Later in the closing argument, the prosecutor argued that defendant’s efforts to stop using drugs and make changes to his life were insincere and hypothesized that defendant’s wife “gave him an ultimatum.” Defense counsel objected and the trial court sustained the objection. The prosecutor continued, “[d]id he want to appease her. Did he want to — she was contemplating leaving him.” Defendant argues the prosecutor improperly argued facts outside the evidence. We disagree. Initially we note that defendant forfeited this claim because he failed to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the argument was fair comment on defendant’s wife’s testimony that she and defendant were having martial problems, she was contemplating leaving him, and she demanded he quit using drugs. Additionally, the prosecutor is afforded wide latitude in penalty phase closing argument and her argument about defendant’s possible motivation for making changes was based on permissible inferences from the evidence. (People v. Cook, supra, 39 Cal.4th at p. 613; People v. Williams, supra, 16 Cal.4th at p. 221.)
While discussing the testimony of defendant’s family members and arguing the witnesses were biased, the prosecutor commented on defendant’s failure to call “his best friend Troy Clark” as a witness. The prosecutor reminded the jury of testimony that Clark was the person who knew defendant best, “but they didn’t call his best friend who if they were going to try to portray to you —.” Defense counsel objected, noting “[w]e don’t know where Mr. Clark is.” The trial court told the prosecutor she could not speculate about why witnesses were not called or suggest that she knew why witnesses were not called. The prosecutor continued, arguing that “there are individuals out there that know the defendant, have had more exposure to the defendant than the people the defense called as witnesses, and if you didn’t hear from those people you have to ask yourselves why not.” Defendant’s failure to request an admonition when doing so would have cured any prejudice forfeits this claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, the prosecutor did not commit misconduct by arguing that defendant’s family members were biased and by commenting on defendant’s failure to call witnesses that knew defendant best. (People v. Davis (1995) 10 Cal.4th 463, 539.)
Defendant next claims the prosecutor committed misconduct by misstating the testimony regarding defendant’s confession to his mother, Rita Bennett. Not so. The pages of the record cited by defendant relate to defendant’s confession to his wife, Karen Bennett, not his mother, Rita Bennett. Although the prosecutor’s reference to “Ms. Bennett” could be understood to mean either defendant’s wife or his mother, the prosecutor clearly identified defendant’s wife, Karen Bennett, as the subject of that portion of her argument. Moreover, in response to defendant’s objection that the prosecutor had misstated the evidence, the trial court admonished the jury that it should follow the evidence as the jury believed it to be. We assume the jury followed the court’s admonition avoiding any prejudice. (People v. Jones, supra, 15 Cal.4th at p. 168.)
The prosecutor next addressed testimony about defendant’s confession to his wife. Recounting the wife’s testimony, the prosecutor noted that she said defendant had not given her many details about his crimes, but had told her that Evans had hit him in the head with a clock. Reminding the jury that defendant had allegedly confessed the rape and murder within the space of an hour-long conversation, the prosecutor remarked that it would have been odd for defendant to have told his wife the detail about being hit with a clock. The prosecutor then argued, “Now, more than likely she made that up because there had been testimony about the photo and the clock.” Defense counsel objected that the argument was improper, and the court ruled that “the more than likely is improper.” Defendant forfeited the misconduct claim by failing to request an admonition. (People v. Earp, supra, 20 Cal.4th at p. 858.) In addition, the prosecutor’s argument did not constitute misconduct. It was permissible to argue based on the evidence that the testimony was not credible. (People v. Dennis, supra, 17 Cal.4th at p. 522; People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor then addressed the testimony of James Waltz, arguing that he was biased because “[h]e’s involved with this family here and he doesn’t believe in the death penalty.” Defense counsel objected that the prosecutor had misstated the evidence, and the trial court sustained the objection. The prosecutor continued, arguing that Waltz “doesn’t support the death penalty. He said he could never vote for the death penalty regardless of what the case was.” Defendant did not request an admonition and thus forfeited the claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, the prosecutor did not commit misconduct. Waltz testified that he would never vote for the death penalty under any circumstances, and the prosecutor’s argument that Waltz was biased because of his ties to defendant’s family and his stance on the death penalty constituted fair comment on the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor returned to discussing the circumstances of the crime and invited the jury to speculate about Evans’s final moments. “That poor woman was raped and bludgeoned, beaten. Don’t you think she begged for mercy, if she couldn’t verbally, don’t you think she cried out with her eyes.” Defense counsel objected that the argument was speculative and the court said that, unless it was supported by the evidence, the prosecutor could not argue it. The prosecutor continued, “We know she was alive during this period of time. We know she didn’t consent to her murder and her bludgeoning.” Defendant failed to request an admonition and so forfeited the misconduct claim. (People v. Earp, supra, 20 Cal.4th at p. 858.) Moreover, the prosecutor’s argument did not constitute misconduct. As she explained, her argument that the victim likely sought mercy was a reasonable inference from evidence in the record. (People v. Williams, supra, 16 Cal.4th at p. 221; People v. Scott (1997) 15 Cal.4th 1188, 1220.)
At the close of her argument, the prosecutor anticipated defendant’s closing argument by saying, “Now he’s going to come in through his defense attorneys — when I sit down here sometime today. They’ll talk to you tomorrow and ask you through the defense attorneys [sic] do him a favor of not giving him the death penalty and I ask you please don’t do that. Do not give this man what he wants.” Defense counsel objected that there was no evidence about what punishment defendant wanted and the trial court sustained the objection. The misconduct claim is forfeited due to defendant’s failure to request an admonition when an admonition would have cured any prejudice. (People v. Earp, supra, 20 Cal.4th at p. 858.) Additionally, arguing that defendant did not want to be sentenced to death did not constitute an unreasonable inference from the evidence. (People v. Williams, supra, 16 Cal.4th at p. 221.) Moreover, while prosecutorial comment on what punishment a defendant wants may not be proper, no conceivable prejudice could have resulted from the brief remark.
Accordingly, we conclude the complained-of remarks did not constitute reversible misconduct.
6. Cumulative Effect of Prosecutorial Misconduct
Defendant contends the numerous alleged instances of prosecutorial misconduct rendered his trial fundamentally unfair, in violation of his federal constitutional right to due process and a reliable verdict. We disagree. Having found no prosecutorial misconduct, we conclude there was no cumulative effect.
7. Cumulative Error
Defendant contends the cumulative prejudicial effect of the various penalty phase errors he has raised on appeal requires reversal of his death sentence. With the exception of a single erroneous evidentiary ruling, which was harmless beyond a reasonable doubt, we have rejected all other claims of error, thus there is no cumulative error.
C. Juror Misconduct Issues
1. Juror No. 84
Defendant contends the trial court erred by failing to excuse Juror No. 84, thereby violating state law and the Eighth and Fourteenth Amendments to the federal Constitution. Specifically, defendant argues reversal is required because the trial court should have excused Juror No. 84 for being unable to perform her duty. We disagree.
After the trial commenced, the court told the jury it anticipated the trial would conclude by the end of Labor Day week. On August 16, 1996, during the penalty phase, the trial court told the jurors that closing argument would likely occur the day after Labor Day, with deliberations to begin thereafter, and if any of the jurors had any problem with the case going into the week of September 9, they should notify the bailiff. The court then recessed until August 26.
On August 29, the jurors were excused early and told to call the court clerk after 4:00 p.m. to see whether they should return on Friday, August 30 or Tuesday, September 3. After the jury exited the courtroom, the trial court advised counsel that Juror No. 84 indicated that, because she was the office manager of an elementary school, it would be difficult on the new students and the staff if she were not at school when the teachers returned on September 9. Defense counsel, concerned that deliberation might be affected if Juror No. 84 remained, requested that the juror be excused and an alternate be seated. The prosecutor asked the trial court to wait and see whether a problem would actually arise. Ultimately, the trial court agreed with the prosecutor and decided not to excuse the juror.
When the jurors called on August 29 to see when they should return, they were informed they should return on September 3. When Juror No. 84 called, the juror told the court clerk she was not happy that she had to return on Tuesday. The court clerk surmised the juror was unhappy because she had wanted to come back on Friday, August 30, and the court described the juror as being disappointed that the jury was not returning until September 3, instead of August 30. Defense counsel asked the court to voir dire the juror and the court agreed.
When the jury returned on September 3, the court told Juror No. 84 that it needed to talk to her, but would do so during a break. At the end of the day, outside the presence of the other jurors, the trial court told Juror No. 84 that it received her note and appreciated her concerns. “Your commitment to your job and your concerns about your job demonstrate you’re a responsible person and when you’ve got a job to do you’re going to do it, so that tends to cause us to believe you’d be a good juror because you understand your obligations and are true to them, but I’m very concerned with respect to divided attention, and the law sets up certain standards for me to review in terms of whether a juror should be excused on the basis of hardship, and I guess what I need to know from you is . . . whether you’ll be distracted.
“Juror No. 84: No, I just felt like I’ve already given up my summer vacation for this and I’ve got almost seven hundred students to worry about and a staff of sixty.
“The court: When you say I’ve already given up my summer vacation for this, it has been a hardship and I need to know either based on that you think subconsciously you would move more quickly either towards reaching a verdict or more quickly towards declaring an impasse saying we can’t reach a verdict. Again, I know you won’t consciously do that, but —
“Juror No. 84: I don’t even think subconsciously that would be a problem.
“The court: Because I know sometimes if I’m in a hurry to get out of here on Friday afternoon when I come back Monday and look at something I wrote, I think I didn’t spend a —
“Juror No. 84: I understand what you’re saying. That’s not a problem.
“The court: So if you are required to remain to the conclusion of the case, it could be two or three weeks into the school year.
“Juror No. 84: I understand.
“The court: You still feel you’d be able to approach this task with the same commitment you’ve had throughout the trial?
“Juror No. 84: Sure.
“The court: You won’t be distracted wondering what’s happening in school?
“Juror No. 84: Of course I’ll be wondering what’s happening at school, but it’s just — really, I feel strongly about continuing.
“The court: Continuing on the jury?
“Juror No. 84: Yes
“The court: And maintaining your focus on the jury?
“Juror No. 84: Yes.”
The next day, after the defense counsel finished its closing argument, the court excused the jury and asked counsel for feedback regarding Juror No. 84 while indicating that it “thought [Juror No. 84] made it pretty clear that she would continue to perform her duties as a juror in a competent fashion . . . .” Defense counsel continued to believe the juror should be excused and the prosecutor thought the juror should remain. The court decided not to excuse the juror, explaining that, “Based on what she said yesterday, although I initially had some concerns, after talking with her yesterday I think she appreciates the seriousness of her duties in connection with this case. And I’m not concerned that she will rush to a verdict or rush to an impasse in an effort to end her jury service.” The jury began deliberating later that day, continued to deliberate on Thursday, September 5 and Friday, September 6, stopped for the weekend, and reached a verdict on Monday, September 9.
Defendant claims the trial court erred when it decided not to excuse Juror No. 84. We disagree. Section 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is “found to be unable to perform his or her duty.” A trial court “has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve.” (People v. Millwee (1998) 18 Cal.4th 96, 142, fn. 19.) A juror’s inability to perform “ ‘must appear in the record as a “demonstrable reality” and bias may not be presumed.’ [Citations.]” (People v. Beeler (1995) 9 Cal.4th 953, 975.) We review the trial court’s determination for abuse of discretion and uphold its decision if it is supported by substantial evidence. (People v. Boyette (2002) 29 Cal.4th 381, 462.)
Here, the juror never indicated at any point that her ability to deliberate would be affected by her concern about the impending school year. To the contrary, on numerous occasions, she affirmatively indicated she would not be distracted, would not feel pressure to reach a decision, and would not lose focus because of her job. Indeed, she told the court she felt strongly about remaining on the jury. The court was in the position to observe the juror’s demeanor (People v. Schmeck (2005) 37 Cal.4th 240, 298) and the court was persuaded that the juror could perform her duties. Defendant speculates the juror was biased; however, nothing in the record supports his assumption. (People v. Beeler, supra, 9 Cal.4th at p. 975.) Accordingly, we conclude the court did not abuse its discretion in declining to excuse Juror No. 84.
2. Juror No. 20
Defendant argues the trial court erred when it allegedly failed to adequately examine Juror No. 20, failed to excuse Juror No. 20, and declined to reinstruct the jury. Defendant contends reversal is required because his rights under state law and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution were violated. We disagree.
At 10:00 a.m. on September 9, the jury informed the court it had reached a verdict. The court excused the jury until 2:00 p.m. Before taking the verdict, the court called counsel into chambers and told them that, at 1:40 p.m., Juror No. 20 called the courtroom and spoke with the bailiff. The bailiff, who was in chambers, recounted that “The gist of the phone call was that [Juror No. 20] had a concern as to what was taking place in the jury room. At that point I told him if there’s any problems you need to write them down and I will forward them up and he said he just didn’t feel right and once again I told him to write it down and, you know, if he had any problems he had to put it on paper and I would pass it on.” The trial court then indicated that Juror No. 20 did not give the bailiff a note when he, along with the other jurors, assembled in the jury room.
The trial court was unsure whether it should inquire of Juror No. 20. Defense counsel felt an inquiry was necessary and the prosecutor wanted to take the verdict without doing so, reasoning that the juror’s failure to write a note must mean any concerns had been resolved. There was a lengthy discussion about how best to proceed and, ultimately, it was decided to bring Juror No. 20 into chambers, reference his phone conversation with the bailiff, and invite him to write down any concerns should he have any. Once Juror No. 20 had been brought into chambers, the court inquired and advised him to write any concerns on a note. The juror did so and then returned to the jury room. The court read the note aloud to counsel: “I have reached a verdict as to the proper verdict. It is just very hard for me to verbally say it when being polled. In my mind I do believe my verdict is true and correct, but my heart tells me I cannot do this. It’s very difficult. I don’t want this trial to go on any longer, but is there any way that an alternate can take my place to reach a verdict so I won’t have to verbally say it. I know I said I could do it, but it’s a lot harder than I thought, and if I must do it I will.”
The court and counsel discussed the note and discussed what action to take. Defense counsel argued that the note meant Juror No. 20 could not fulfill his oath and asked that he be excused and replaced by an alternate. Alternatively, defense counsel asked the court to tell Juror No. 20 that he should not have signed the verdict form unless he was prepared to state it was his verdict in open court. Defense counsel also asked the court to reinstruct the entire jury, pursuant to CALJIC No. 8.88, that it should only impose the sentence that each juror personally felt was warranted. The prosecutor asked the court to bring the juror into chambers and inquire what he intended to do when polled in open court. Because a verdict had been reached, if the juror intended to agree when polled, there was no problem to resolve. The prosecutor felt further intervention was warranted only if the juror said he intended to disagree when polled. The court ultimately concluded that there were not sufficient grounds to excuse the juror. It instead decided to tell the juror that the jury would be individually polled after the verdict was announced and to ask him whether he could answer yes. If not, the court could deal with it then. Then, referring to the bailiff’s recounting of Juror No. 20’s phone call, defense counsel noted that the juror had made reference to “some things going on in the jury room” and asked the court to conduct an inquiry into his concerns. The court pointed out that the statement was merely part of the bailiff’s best effort to paraphrase the conversation.
The court then brought Juror No. 20 into open court and told him that, as in the guilt phase, the jurors would be collectively and individually polled after the court clerk read the penalty phase verdict to determine whether the verdict expressed their votes. The court said it did not want to know what the verdict was, but wanted to know if the juror could give an answer when polled. The juror responded, “I think I could do it. It’s just, I guess, the nervousness if you want to call it. It would be easier for me — all the jurors. It’s not an easy thing. It’s difficult to do it, but I can do it. It’s just the nervousness was part of my concern.” The court followed up, “But when asked in open court if this expresses your verdict you can answer either yes or no?” The juror responded, “Yes” and was returned to the jury room. Defense counsel renewed his motion to excuse the juror and replace him with an alternate and to reinstruct the jury. Finding no good cause, the trial court denied the motion. The jury returned a death verdict and, when polled, Juror No. 20 responded that the verdict reflected his penalty determination.
Defendant argues the trial court erred. He contends the trial court’s inquiry was too limited, that the court should have excused Juror No. 20 for inability to fulfill his duty as a juror, and that the court should have reinstructed the entire jury. We disagree.
First, the court did not err when it concluded Juror No. 20 could fulfill his duty. (People v. Boyette, supra, 29 Cal.4th at p. 462.) The juror’s note and the court’s subsequent inquiry established that the juror’s concern was about having to state in open court that he felt a death sentence was appropriate. Any such anxiety was understandable given the consequences of his vote. However, the juror subsequently told the court that, while difficult, he could fulfill his duty by verbally affirming that he concurred in the jury’s penalty determination. Indeed, the juror ultimately did so. There is no evidence in the record to support the conclusion that the juror was unable to perform his duty. (People v. Beeler, supra, 9 Cal.4th at p. 975.)
Second, the court did not abuse its discretion in determining the scope of its inquiry. Defendant argues that Juror No. 20 communicated a broader concern about jury deliberations and it was incumbent upon the court to inquire. The record does not support his contention. The bailiff, in what the trial court described as his best effort to paraphrase the conversation with Juror No. 20, made a vague reference to “a concern as to what was taking place in the jury room.” However, despite being instructed to do so by the bailiff, Juror No. 20 did not write a note about any concerns. Even after the trial court brought the juror into chambers and invited him to write down any concerns, the juror’s note made no mention of concerns about anything taking place in the jury room. Nor, during the court’s subsequent inquiry, did the juror mention any other concerns. “ ‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct — like the ultimate decision to retain or discharge a juror — rests within the sound discretion of the trial court.’ [Citation.]” (People v. Cleveland (2001) 25 Cal.4th 466, 478.) Moreover, trial courts should use caution when making inquiries because of the need to protect the sanctity and secrecy of jury deliberations. (Id. at p. 475.) In light of the juror’s failure to raise concerns about anything taking place during jury deliberations, the court did not abuse its discretion when it chose not to conduct a broader inquiry.
Third and finally, the court did not abuse its discretion when it declined defendant’s request that it reinstruct the entire jury with CALJIC 8.88. The jury had already been so instructed and nothing suggests the trial court needed to do so again. The jury had already reached a verdict. Nothing in Juror No. 20’s note nor in his answers during the court’s inquiry called the validity of the verdict into question. Accordingly, the court’s decision not to reinstruct the jury was not error.
3. Defendant’s Motion for a New Trial
Defendant claims Juror No. 20 committed prejudicial misconduct during the penalty phase deliberations and that the trial court erred when it denied his motion for a new trial. Defendant further contends that reversal of both his conviction and penalty is required under state law and the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution. We disagree.
On December 6, 1996, defendant filed a motion for a new trial, alleging Juror No. 20 had committed misconduct. Exhibit A to the motion was a November 26, 1996 declaration, signed by Juror No. 20 under penalty of perjury, in which he stated that, “In 1993 or 1994, I was arrested for my role in a bar fight. I spent two days in jail. The charges were eventually dropped. That experience was very difficult for me.” Exhibit B to the motion was the juror’s May 8, 1996 voir dire questionnaire, also signed under penalty of perjury, in which he stated that he had never been arrested. Defendant argued Juror No. 20 had committed prejudicial misconduct by lying during voir dire.
At a hearing on the motion, defense counsel indicated that a number of jurors indicated Juror No. 20 had said during deliberations that he had previously been arrested. Defense counsel asked the prosecutor to check whether the juror had any criminal arrests. The prosecutor opposed the request, unsure that he had the authority to obtain the juror’s arrest record and provide it to the defense. Moreover, the prosecutor argued that, even assuming the juror had committed misconduct, defendant had not established any prejudice. The trial court concluded further inquiry was warranted.
At subsequent hearings, both the prosecution and defense indicated they had inquired with several law enforcement agencies, but had been unable to locate any booking records for Juror No. 20. Defense counsel indicated that several jurors remembered Juror No. 20 talking about having been arrested. Juror No. 20 had also allegedly expressed “how horrible jail was.” Defense counsel argued that one could infer from such a statement either that the juror was advocating a life sentence verdict or that “it’s a lot easier to sentence somebody to death if you think jail is so bad anyway.” Defense counsel also acknowledged that it was alternatively possible that the “juror made up a story in deliberations then lied on a declaration.” The prosecutor indicated that “we have received some information that in fact the juror may not have been arrested in the sense of the word that we would consider an arrest.” It was decided that the prosecutor would obtain a declaration from Juror No. 20 addressing the apparent inconsistencies.
At the next hearing on the matter, the court discussed Juror No. 20’s most recent declaration, obtained by the prosecution. The court noted that the juror’s declaration “appears to suggest that he was not arrested, that he was detained, and he believes it might have been — it was with private security guards who detained him in an office, and it might have been overnight.” The court noted that the most recent declaration conflicted both with his previous declaration and with the recollection of the other jurors who clearly remembered Juror No. 20 mentioning “jail.” In light of counsel’s inability to verify that the juror had been arrested and of the new declaration, the court concluded Juror No. 20 did not lie on his juror questionnaire, but did lie to the other jurors when he told them he had spent time in jail and it was a horrible experience. Addressing whether defendant had suffered any prejudice, the court said its “initial take on it is [Juror No. 20] exaggerated his experience for attention getting.” Defense counsel was concerned about exactly what Juror No. 20 said to the other jurors and indicated that Juror No. 20’s behavior possibly indicated something about “his state of mind.” It was agreed that the court would have the juror come in and the court would further inquire.
At the next hearing, the court questioned Juror No. 20 at length under oath. In addition to inquiring about the alleged incident, the court asked what Juror No. 20 had said to other jurors during deliberations regarding his experience and Juror No. 20 responded that he had, on two occasions, told a juror in the presence of other jurors, “have you ever been in jail, it’s a very difficult — it was for me when I was there.” The court took a brief break to allow counsel to propose any additional questions. Upon resumption of the examination, the court asked additional questions about the alleged incident with the security guards.
At the conclusion of the hearing, after considering the evidence and hearing argument from both counsel, the court found that the juror did not lie on his juror questionnaire, but that he did lie when he told jurors he had been arrested and been in jail. The court further found that the juror had made only a brief “mention” of the alleged experience and did not have a “conversation” about it. The court found that the juror had not been truthful when he signed either of the posttrial declarations. The court concluded that the juror committed misconduct when he made a false statement during deliberations. The court further concluded, however, that there was no evidence of prejudice. In addition to the statement being brief, the court explained that jail is commonly known by the public to be a bad place. The court also noted that jail is portrayed as awful in popular media and that the defense had introduced testimony in the penalty phase about the difficulties of life in jail. The court denied defendant’s motion for a new trial.
Defendant contends the trial court erred when it denied his motion for a new trial. We disagree. At the outset, we note that the trial court found that the juror did not lie on his juror questionnaire and we accept that factual determination, as it is supported by substantial evidence, including the lack of any records indicating defendant had been arrested. (People v. Ramos (2004) 34 Cal.4th 494, 520.) As for the juror’s posttrial declarations, the court found that the juror had lied in them. However, a juror’s postverdict lies to cover up misconduct, “although certainly improper, does not show bias during the trial, deliberations, and verdict.” (In re Carpenter (1995) 9 Cal.4th 634, 657.) Accordingly, only the juror’s comments during deliberation constitute potentially prejudicial misconduct. While the court concluded these comments constituted misconduct, it nonetheless decided defendant had not established prejudice.
Misconduct by a juror raises a rebuttable presumption of prejudice. (People v. Danks (2004) 32 Cal.4th 269, 302.) However, we will set aside a verdict only where there is a substantial likelihood of juror bias. (Id. at p. 303.) We will find such bias if the misconduct is inherently and substantially likely to have influenced the jury. (Ibid.) Alternatively, even if the misconduct is not inherently prejudicial, we will nonetheless find such bias if, after a review of the totality of the circumstances, a substantial likelihood of bias arose. (Ibid.) While the existence of prejudice is a mixed question of law and fact subject to this court’s independent determination, we accept a trial court’s credibility determinations and factual findings when they are supported by substantial evidence. (Id. at pp. 303-304.)
We conclude Juror No. 20’s comments did not create a substantial likelihood of juror bias. First, the trial court found Juror No. 20’s comments were brief, and its finding was supported by substantial evidence including both the juror’s answers to the court’s questions as well as the other jurors’ declarations. For example, while Juror No. 17 said Juror No. 20 had stated he had spent a “very short stay” in jail, she indicated she could not recall any specific comments made by Juror No. 20. Similarly, Juror No. 94 told the defense investigator that Juror No. 20 had “mentioned only that he had ‘an experience’ in jail and that it was horrible,” and that the other jurors did not ask for any details nor did she recall any other information on the subject. In short, as the trial court concluded, Juror No. 20’s reference to being in jail was merely a fleeting comment.
Second, the trial court concluded that the substance of the juror’s brief comment — that jail was “scary” and “horrible” — did not create a substantial likelihood of juror bias. The court noted that jail is already widely understood to be a bad place to be and that it is portrayed as such in “novels, movies, television programs, . . . documentaries.” The court also pointed out defense witnesses testified in the penalty phase about unsavory jail conditions. For example, Emedio Sandoval, a convicted child molester, testified that defendant had been attacked by another inmate in jail and also testified about the social hierarchy among inmates. Considering the totality of the circumstances, Juror No. 20’s comment that jail was scary and horrible did not create a substantial likelihood of juror bias.
Alternatively, defendant also argues the trial court should have granted his motion for a new trial because Juror No. 20 was unfit to sit on the jury. Citing the juror’s numerous lies, defendant claims “something was off with Juror [No.] 20” and that he engaged in “bizarre” and “pathological” behavior. Nothing supports this interpretation. To the contrary, the record suggests the juror first lied to his fellow jurors about having been in jail in order to garner attention and then, once the defense investigator approached him about his comments, the juror understood he had committed misconduct and engaged in a series of contradictory explanations in an effort to get out of trouble. Nothing other than mere speculation supports defendant’s contention that Juror No. 20 was “pathological” or otherwise incapable of performing his duty as a juror. (People v. Beeler, supra, 9 Cal.4th at p. 975.) The trial court did not err when it denied defendant’s motion for a new trial.
D. Other Issues
1. Denial of Application to Modify the Penalty Verdict
Once the jury returned a death verdict, the trial court considered an automatic motion for a modification of the sentence (§ 190.4, subd. (e)), which the trial court denied. Defendant contends the trial court’s decision constituted error. Specifically, defendant asserts the trial court’s failure to “take into account the proportionality aspect of the death penalty” requires reversal. We disagree.
A trial court’s duty under section 190.4, subdivision (e), is to “independently reweigh the evidence of aggravating and mitigating factors presented at trial and determine whether, in its independent judgment, the evidence supports the death verdict.” (People v. Steele (2002) 27 Cal.4th 1230, 1267.) The record demonstrates that the trial court did so here. In aggravation, the trial court discussed the calculated nature of the crimes, the fact that defendant likely chose the women he attacked because he was aware they lived alone, and the brutality of the attacks. The court next identified numerous mitigating factors including, among other things, defendant’s lack of criminal history, his addiction to drugs, his childhood, and his devotion to his children. The trial court then independently reweighed the evidence and ultimately concluded that the circumstances of the crime were “so compelling that [their] weight alone substantially outweighed the totality of the mitigating factors.” The trial court carefully performed its duty under section 190.4, subdivision (e).
Defendant also argues that the circumstances of this crime were not so bad as to place defendant among “the worst of the worst.” To the extent defendant is claiming the trial court erred by failing to compare the crimes in this case with other death penalty cases, we have held such intercase proportionality review is not required by either the state or federal Constitution. (People v. Lenart (2004) 32 Cal.4th 1107, 1130; People v. Sapp (2003) 31 Cal.4th 240, 317.) To the extent he is arguing that his sentence was disproportionate to his personal culpability, we disagree. (People v. Steele, supra, 27 Cal.4th at p. 1269.) As the trial court explained, “[defendant] did not randomly select his victims but rather used his special knowledge as a workman or as a neighbor to assess their vulnerability before he preyed upon [them] . . . . [¶] There was unusual emotional brutality in the rape and forced oral copulation of the first victim. And there was unusual physical brutality in the killing of [Evans].” Defendant’s sentence “is not disproportionate to [his] personal culpability. It does not shock the conscience.” (People v. Steele, supra, 27 Cal.4th at p. 1269.) The trial court did not err when it declined to modify the sentence.
2. Equal Protection Challenge to Imposition of the Death Penalty
Defendant argues that the death penalty in California violates the California Constitution and the Eighth and Fourteenth Amendments to the United States Constitution because it is imposed arbitrarily and capriciously depending on the county in which the case is prosecuted. As defendant concedes, we have repeatedly rejected substantially similar claims, concluding that “prosecutorial discretion to select those eligible cases in which the death penalty [would] actually be sought does not . . . offend principles of equal protection, due process, or cruel and/or unusual punishment. [Citations.]” (People v. Keenan (1988) 46 Cal.3d 478, 505; People v. Brown (2004) 33 Cal.4th 382, 403; People v. Williams, supra, 16 Cal.4th at p. 278.) Defendant does not identify a reason to reconsider our prior holdings and we decline to do so.
3. Delay in Appointment of Appellate Counsel
Defendant contends that the four and a half years it took to appoint appellate counsel to represent him violates his rights under the United States Constitution. We have previously considered and rejected identical claims. (People v. Dunkle (2005) 36 Cal.4th 861, 942; People v. Snow (2003) 30 Cal.4th 43, 127; People v. Welch (1999) 20 Cal.4th 701, 775-776; People v. Holt (1997) 15 Cal.4th 619, 708-709.) Defendant relies on federal authority in noncapital cases, but as we have explained, “[n]one of those decisions address the unique demands of appellate representation in capital cases.” (People v. Holt, supra, 15 Cal.4th at p. 709.) Additionally, “defendant fails to demonstrate that the delay inherent in the procedures by which California recruits, screens, and appoints attorneys to represent capital defendants on appeal, is not necessary to ensure that competent representation is available for indigent capital appellants.” (Ibid.) Defendant has identified no reason to reconsider our prior holdings and we decline to do so.
4. Eighth Amendment Challenge to Pre-execution Delay
Defendant argues that executing defendant after his “lengthy confinement under sentence of death” would constitute cruel and unusual punishment in violation of the federal Constitution, the California Constitution, and international law. We have repeatedly rejected this claim and do so again here. As we have explained, “the delay inherent in the automatic appeal process ‘is not a basis for finding that either the death penalty itself or the process leading to it is cruel and unusual punishment.’ (People v. Hill [(1992)] 3 Cal.4th [959,] 1016.)” (People v. Massie (1998) 19 Cal.4th 550, 574, italics omitted; People v. Jones, supra, 29 Cal.4th at p. 1267; People v. Anderson (2001) 25 Cal.4th 543, 606; People v. Frye (1998) 18 Cal. 4th 894, 1030-1031.)
5. Other Constitutional Challenges to Death Penalty Statute and Instructions
Defendant contends a number of California’s death penalty provisions violate the federal Constitution. He acknowledges that this court has repeatedly rejected identical claims in prior decisions but argues that we should reconsider our holdings. Having found no reason to do so, we reject these claims without extensive discussion.
Defendant argues that California’s death penalty statute does not meaningfully narrow the pool of murderers eligible for the death penalty. We have repeatedly held that section 190.2 “does not contain so many special circumstances that it fails to perform the constitutionally mandated narrowing function. [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 677; People v. Morrison (2004) 34 Cal.4th 698, 729; People v. Crittenden (1994) 9 Cal.4th 83, 154-156.)
Defendant contends section 190.3, factor (a) is unconstitutional because it has been applied in such a “wonton and freakish manner,” without the application of any reasonable limiting construction, that it results in the arbitrary and capricious imposition of the death penalty. To the contrary, section 190.3, factor (a) “instructs the jury to consider a relevant subject matter and does so in understandable terms.” (Tuilapea v. California (1994) 512 U.S. 967, 976.) Defendant further complains that factor (a) unconstitutionally permits circumstances to be considered aggravating in one case while neutral or mitigating in another case. We have rejected this precise claim, explaining that “there is no constitutional requirement that the sentencer compare the defendant’s culpability with the culpability of other defendants. [Citation.]” (People v. Jenkins (2000) 22 Cal.4th 900, 1051.)
Defendant argues that California’s death penalty statute violates the federal Constitution because it fails to incorporate certain “safeguards” against the arbitrary imposition of death. We address each alleged omission in turn.
First, citing Apprendi v. New Jersey (2000) 530 U.S. 460 and Ring v. Arizona (2002) 536 U.S. 584, defendant claims that jurors must find aggravating factors true beyond a reasonable doubt, unanimously agree on the presence of a particular aggravating factor, and find that the aggravating factors outweighed mitigating factors. We have repeatedly rejected such claims. (People v. Bell (2007) 40 Cal.4th 582, 620; People v. Rogers (2006) 39 Cal.4th 826, 893; People v. Morrison, supra, 34 Cal.4th at pp. 730-731.)
Second, defendant contends the state and federal Constitutions require that the jury be instructed that it may impose a death sentence only if it determines, beyond a reasonable doubt, that the aggravating factors outweigh the mitigating factors and that death is the appropriate penalty. We have rejected this contention on numerous occasions. (People v. Bell, supra, 40 Cal.4th at p. 620; People v. Avila (2006) 38 Cal.4th 491, 614; People v. Morrison, supra, 34 Cal.4th at p. 730.)
Third, defendant argues that the failure to assign the state a burden of proof renders unconstitutional California’s death penalty statute. Defendant claims that, at a minimum, a jury should have to find, by a preponderance of the evidence, that an aggravating factor exists, that the aggravating factors outweigh the mitigating factors, and that death is the appropriate sentence. We disagree. We have previously concluded that no burden of proof or burden of persuasion is required during the penalty determination. (People v. Elliot (2005) 37 Cal.4th 453, 487-488; People v. Lenart, supra, 32 Cal.4th at pp. 1135-1136.) Defendant identifies no reason to revisit our prior decisions.
Fourth, defendant contends that some burden of proof is constitutionally required at the penalty phase to break ties for those jurors who find themselves torn between imposing a death sentence and sentencing the defendant to life without the possibility of parole. As discussed above, no burden of proof or burden of persuasion is required during the penalty phase. (People v. Elliot, supra, 37 Cal.4th at pp. 487-488; People v. Lenart, supra, 32 Cal.4th at pp. 1135-1136.) Additionally, the jury was instructed it could return a sentence of death only if it “conclude[d] that the aggravating circumstances substantially outweigh the mitigating circumstances.” Accordingly, no “tie-breaking rule” was necessary.
Fifth, defendant alternatively argues that the jury should have been instructed that there was no burden of proof. We have repeatedly rejected identical claims. (People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Cornwall (2005) 37 Cal.4th 50, 104.)
Sixth, defendant contends the failure to require written or other specific findings by the jury regarding aggravating favors violates the federal Constitution. We have rejected that contention on numerous occasions. (See People v. Elliot, supra, 37 Cal.4th at p. 488.)
Seventh, defendant claims that the lack of intercase proportionality review for death penalty cases is unconstitutional. We have, as defendant acknowledges, repeatedly held that intercase proportionality review is not required. (People v. Williams (2006) 40 Cal.4th 287, 338; People v. Elliot, supra, 37 Cal.4th at p. 488; People v. Anderson, supra, 25 Cal.4th at p. 602.)
Defendant argues that the California sentencing scheme denies capital defendants equal protection by denying procedural safeguards to capital defendants that are afforded to noncapital defendants. As we have previously explained, “[t]he death penalty law does not deny capital defendants equal protection because it provides a different method of determining the sentence than is used in noncapital cases.” (People v. Smith, supra, 35 Cal.4th at p. 374.)
Defendant contends the death penalty statute violates international law, a contention we have repeatedly rejected. (People v. Elliot, supra, 37 Cal.4th at p. 488.) Nor, contrary to defendant’s argument, does the death penalty violate the Eighth and Fourteenth Amendments to the United States Constitution. (People v. Blair (2005) 36 Cal.4th 686, 754-755.)
III. DISPOSITION
The judgment is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bennett
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S058472
Date Filed: January 29, 2009
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Kathleen E. O’Leary
__________________________________________________________________________________

Attorneys for Appellant:

Tamara P. Holland, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Holly Wilkens and Annie Featherman Fraser, Deputy Attorney General, for Plaintiff and Respondent.








Counsel who argued in Supreme Court (not intended for publication with opinion):

Tamara P. Holland
769 Center Boulevard, #132
Fairfax, CA 94930
(415) 488-4849

Annie Featherman Fraser
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
9619) 645-2427

San Diego California DUI defense attorneys & San Diego drunk driving criminal lawyers are very interested in a new Chicago Tribune series of articles "Forensics Under the Microscope":

Guilty, said bite expert. Bogus, says DNA.
In a cubicle at Marquette University, a professor of dentistry and a former prosecutor are trying to use computer science to shore up a beleaguered forensic discipline.

Exonerated by DNA, guilty in official's eyes
In the fall of 2002, DNA tests exonerated Jimmy Ray Bromgard in the 1987 rape of an 8-year-old girl in Billings, Mont. His case was dismissed and he was freed from prison.
Judge doubts lip print, orders retrial in murder
A Kane County judge has ordered a new trial for a man serving 45 years in prison for murder after finding a "grave question of reliability" about a lip print used to link him to the crime.

Top lab repeatedly botched DNA tests
One of the nation's premier crime labs repeatedly failed to catch botched DNA testing in the case of a Virginia Death Row inmate who spent 17 years in prison before being exonerated, according to an independent review.
U.S. seeks review of fingerprint techniques
Four years after scuttling a study into the reliability of fingerprinting, the research arm of the Justice Department is seeking answers to fundamental questions about the grandfather of forensic science.
12 years behind bars, now justice at last
Cook County prosecutors on Monday dropped murder and rape cases against two men who spent more than 12 years behind bars, after DNA tests undermined their purported confessions as well as the dubious forensics that had led to their convictions and life sentences.
Digitized prints can point finger at innocent
Deep inside a sprawling complex tucked in the hills of this Appalachian town, a room full of supercomputers attempts to sift America's guilty from its innocent.
Death Row inmate wins resentencing
A decade after sending a man to Death Row, an Arizona judge on Thursday granted him a new sentencing hearing based on inconclusive DNA tests and questions about the bite-mark evidence used to convict him.
Bad laboratory blood analysis took 17 years of his life
This story contains corrected material, published Dec. 22, 2004.

Man executed on disproved forensics
Strapped to a gurney in Texas' death chamber earlier this year, just moments from his execution for setting a fire that killed his three daughters, Cameron Todd Willingham declared his innocence one last time. More

DNA tests raise questions in case
The judge who sentenced a man to death a decade ago for rape and murder based on purported bite marks on the victim's body said Wednesday that he is considering options including granting the man a new sentencing hearing if not a new trial. More

Mother hoping DNA frees son
Susie Tankersley last saw her only son a decade ago, when he was convicted and sentenced to death for the rape and murder of a 65-year-old woman in a motel not far from the courthouse here.
Hearing highlights DNA tests' delicacy
Bobby Lee Tankersley sits on Arizona's Death Row largely because a forensic dentist asserted he could match Tankersley's teeth to marks found on a murder victim's body.

Bite-mark verdict faces new scrutiny
Thelma Younkin used an oxygen tube to help her breathe. Her killer used it as a murder weapon.
Report blasts FBI lab
Top FBI fingerprint examiners gave in to peer pressure when they rushed to link an Oregon lawyer to a terrorist attack in Madrid this year, according to a panel of forensic experts convened to explain the highest-profile mistake in the history of modern fingerprint comparison.

Scandal touches even elite labs
A decade ago, as Earl Washington Jr. neared his execution date, a leading DNA expert first suggested an analyst in the vaunted Virginia state crime lab might have erred in the case.

When labs falter, defendants pay
As John Willis sought to prove he had been wrongly convicted of a rape in the Chatham neighborhood, the Illinois State Police crime lab in Chicago came across a potential key to his innocence.
From the start, a faulty science
The nation's leading forensic experts held their annual meeting in 1970 at Chicago's Drake Hotel, and all of the old guard was there. Fingerprint experts. Document examiners. Pathologists.

Arson myths fuel errors
The prosecution of Beverly Jean Long for the 2003 murder of her husband in rural Georgia reveals a tale of two mistakes. One killed her husband, James. The other put her on trial for murder by arson.
Unproven techniques sway courts, erode justice
Settling into the witness chair of a Kane County courtroom, Stephen McKasson tutored jurors in a murder trial on the wonders of a rarely used divining tool: lip prints.

Critics tell experts: Show us the science

San Diego DUI criminal defense lawyers and San Diego drunk driving attorneys report guy arrested for a San Diego DUI is responsible for 2 two hit and run San Diego DUI crashes on surface streets and a freeway before slamming head-first into a vehicle in the Jamacha area, injuring himself and two women.

The guy and two girls were all hospitalized after the collision in the 8600 block of San Vicente Street around 8:20 p.m. Sunday, said San Diego DUI attorneys at SanDiegoDUI.com.

The guy was driving eastbound on San Vicente Street when he alegedly failed to negotiate a curve and crossed into the path of the women's westbound vehicle, San Diego California criminal attorneys report.

The guy was hospitalized with potential internal injuries, and that one woman driving the other vehicle was hospitalized with a fractured foot while another woman passenger suffered neck damage.

Is there abuse of oxycodone in San Diego? San Diego DUI Criminal Defense attorneys believe that new drug-testing practices are one way officials hope to learn more about what they believe may be a growing problem in San Diego County. The expensive, potentially addictive synthetic opiate is prescribed to treat pain, but is abused for the heroin-like high it gives. A year ago, San Diego sheriff's detectives on the narcotics beat said they noticed a spike in arrests related to the OxyContin brand of oxycodone, particularly in Ramona, Santee and Poway.

San Diego deaths involving the drug also appeared to have increased, and the findings prompted the creation of a regional task force in September 2008. San Diego County officials said they don't yet know the true number of OxyContin users and overdoses. Part of the problem is that while investigators expected positive tests for OxyContin in people with severe chronic pain or late-stage cancer, they weren't looking for it in healthy young people, the ones they now think are abusing it. Even if they had, there's no guarantee that OxyContin would have been detected in tests of a 17-year-old DUI suspect or overdose victim, they said. "Having talked to the labs that do toxicology screens for San Diego County, we learned that unless the investigating officers specifically asked for an oxy screen, (the labs) were just doing the 'dangerous drug' screen," reports medical examiner's investigator Jerry Simmons, who sits on a regional oxycodone task force formed last year.

San Diego County officials believe OxyContin may be a dangerous drug, one growing in popularity with young people in the county. But the standard "dangerous drug" screen won't identify the synthetic opiate in the pill, Simmons has indicated. Simmons said OxyContin might register generally as an opiate, one of the classes detected by the standard screen but not until it reaches well into lethal levels. There are specific San Diego DUI tests that can detect oxycodone in blood and urine, though, and investigators are going to be using them more, Simmons said. If police find a 17-year-old kid with a roll of aluminum foil in his car, they will likely look for oxycontin then.

Foil is used to smoke OxyContin, which initially takes the form of a pill and is crushed to make it easier to burn and inhale. If the foil has been used to smoke crushed pills, it will have black "skid" marks of residue where the drug was burned.
Addicts typically have foil with them, or in their cars or bedrooms, though some ingest the pills, snort them, or dilute them in water and inject the solution, officials say. OxyContin isn't a new drug. Introduced in 1995, OxyContin ---- specifically designed to continuously release oxycodone over a 12-hour period ---- gained notoriety as a popular drug of abuse in rural areas throughout the nation. Other oxycodone products such as Percocet typically contain less of the active ingredient and may be paired with other painkillers, such as acetaminophen.

OxyContin isn't entirely new to San Diego. In a six-month period spanning 2004 and 2005, two San Diego State University students and one SDSU graduate suffered fatal overdoses involving the drug. San Diego County deputy district attorneys indicate OxyContin cases rarely crossed their desks back then, while they've seen more than 20arrests for possession since July 2008. It appears that OxyContin abusers in San Diego County tend to be young, between the ages of 18 and 25, and from affluent areas such as Torrey Pines, Rancho Bernardo and Poway, San Diego DUI officials indicate.

San Diego DUI investigators believe young people are getting the drug prescribed for them by doctors, buying it off other people who use, or bringing it back from Mexico, they said. Some may also find it in their homes if they live with people who take it for pain management, San Diego DUI officials report.

San Diego youngsters may think that OxyContin is safer than "street drugs" because it's been tested and approved for pain treatment by the federal Food and Drug Administration but OxyContin can be highly addictive and cost as much as $80 per pill when purchased outside of the medical system. A number of young people, when they find OxyContin inaccessible or too expensive, have turned to heroin, which is cheaper in San Diego County, San Diego DUI officials believe. And in the medical examiner's office, changes in OxyContin testing will be applied to old cases. That's particularly true if testing for OxyContin might corroborate or refute an informant's claims about an alleged OxyContin dealer, perhaps.

San Diego California DUI attorneys report Team DUI recently received Mothers Against Drunk Driving (MADD)'s most prestigious award. Team DUI Founder Judy Thein and members Captain Russ Perdock and Officer Adam Garcia were present April 18 to accept the "Heart of MADD" award at the 2009 California Law Enforcement and Community Recognition Dinner in Sacramento.

"Receiving this award is a milestone for our community and our county. It means that the work that Team DUI is doing is reaching beyond our county boundaries," Thein said. "I want to thank all of our members, especially those who took time from their busy schedules to accept this award; for their service, sacrifice and their commitment to keeping our communities safe and free of drunk drivers."

Team DUI was born through the tragic death of Thein's daughter Kellie. Kellie had held a special place in her heart for children. In memory of her daughter's life and legacy, Thein created Team DUI in order to teach children about the consequences of underage drinking and intoxicated driving. The team is a coalition of law enforcement, county and city officials, social service providers, educators and others who have personal experience with DUI-related incidents. The program is designed to help youth understand the consequences of their decisions.

"Team DUI is truly the Heart of MADD," it states in the informational booklet that described the awards event. "Thanks to Thein's and Team DUI's effort, people in Lake County are changing the way they think regarding the responsibility and accountability when they choose to drink. Team DUI matches MADD's mission of stopping drunk driving, supporting the victims of this violent crime and preventing underage drinking. The end result being lives changed and lives saved."
"It was overwhelmingly exciting to receive this award. It is the most prestigious award MADD presents and to say it was an honor to receive it doesn't quite express all the gratitude Team DUI has for this recognition," Thein said. "The whole evening was very awe-inspiring. There were a lot of awards for very important efforts that are going on around our state. It's very encouraging to know that so many are contributing to the safety of our communities and our youth."

The 11th annual event was attended by more than 600 people with 158 California agencies represented including 19 sheriff's departments, 128 police departments and nine divisions of the California Highway Patrol.

"I'm really proud of all the members of Team DUI and it was really fitting that we have outstanding members like Captain Russ Perdock and Officer Adam Garcia who were able to attend this event and represent Lake County among law enforcement agencies across the state," Thein said. "Chief Allan McClain is also another big contributor to the successes of Team DUI. Unfortunately, he was unable to attend the event due to family issues."

Team DUI was responsible for bringing multi-media MADD presentations into area schools last spring. Different programs were presented to high school and elementary and middle school students.

California DUI defense attorney strategy and to vigorously protect your important driving privilege at SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM" reports that California Highway Patrol will conduct a joint sobriety checkpoint with the South Lake Tahoe Police Department on Saturday, April 25.

The checkpoint will be located on Highway 50 between Fairway Avenue and Herbert Avenue in South Lake Tahoe, said Lt. Timothy Malone, CHP’s South Lake Tahoe area commander.

The sobriety checkpoint will be staffed by CHP and SLTPD officers who are trained in the detection of alcohol and/or drug impaired drivers, Malone said.

“Each year members of our community are needlessly maimed or killed on our roads. Our goal is to insure the safe passage of each and every motorist by targeting roads where there is a high frequency of drunk driving,” Malone said in a press statement. “A sobriety checkpoint is an effective tool for achieving this goal and is designed to augment existing patrol operations. By publicizing our efforts we believe that we can deter motorists from drinking and driving.”

Traffic volume permitting, all vehicles will be checked and drivers who are under the influence of alcohol and/or drugs can expect to be arrested and spend the night in the county jail.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

San Diego DUI Defense Resource Center reports these checkpoints for California:

The El Cajon Police Department will conduct a Sobriety Checkpoint beginning Tuesday, May 5, 2009 at approximately 7 p.m. until 2 a.m. Wednesday, May 6, 2009. The checkpoint is designed to reduce the number of D.U.I. incidents in the City of El Cajon. The exact location of the checkpoint will not be announced until two hours prior to the start of the operation.*

Motorists approaching the checkpoint will be diverted into an area where an officer will contact them. The drivers will be stopped only for a few moments while the purpose of the checkpoint is explained. Those who appear to be under the influence of alcohol and/or drugs will be given field sobriety tests and face possible arrest. Traffic volume permitting, all vehicles will be checked.

Three drivers were arrested on suspicion of DUI and one driver was arrested for an outstanding warrant during a recent DUI/driver's license checkpoint conducted by the Citrus Heights Police Department, according to information released today.

More than 1,000 vehicles passed through the checkpoint between 7:30 p.m. Friday and 2:30 a.m. Saturday on Greenback Lane, west of Sunrise Boulevard, Lieutenant Eric Mattke said in a news release.

In addition to the arrests, 15 drivers were given sobriety tests and thirteen vehicles were towed, Mattke said.

The checkpoint is one in a series that are being funded by a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration


San Diego DUI Criminal Defense Lawyer list:

Effective San Diego DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI. Hassle-free San Diego DUI help for San Diego DUI court and San Diego DMV. Help to save your license. San Diego DUI Attorney Rick Mueller is a Top-Rated San Diego Drunk Driving Lawyer, San Diego DUI & DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence. 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 provided favorable responses to the President of the California DUI Lawyers Association. San Diego DUI Defense Evaluation at http://www.sandiegodui.com/survey.html for your best San Diego DUI defense attorney strategy and to vigorously protect your important driving privilege, as has been done for many good people who necessarily become Clients.

San Diego California DUI criminal attorneys and San Diego drunk driving lawyers are told a 27-year-old man was killed in a head-on crash Sunday night after a suspected drunken driver fleeing from officers slammed into his vehicle on state Route 76 north of Escondido.
A California Highway Patrol officer spotted 23-year-old Silvero Morales Romero of Vista speeding south on Interstate 15 in a 2001 Ford Explorer and pulled him over at Rainbow Valley Boulevard just after 7 p.m., San Diego California DUI lawyers believe.
Romero, who did not have a driver's license, briefly stopped but when the officer asked for his identification he took off down the freeway driving 100 mph and weaving in and out of lanes, San Diego California DUI attorneys have heard.
Romero exited at state Route 76, headed west and ran a red light at the intersection with Old Highway 395, according to San Diego California Drunk Driving attorneys.
At that point, the officer who was pursuing him backed off and continued to follow with his lights and sirens off, per San Diego California Drunk Driving lawyers.
Seconds later, Romero crossed over the double yellow lines and collided head-on with a 1999 Toyota pickup. The driver was taken to a hospital, where he was pronounced dead on arrival. His name has not been released.
Romero's truck then crashed into a 2004 Ford F-350 being driven by a 50-year-old man from Barstow. He and his 43-year-old wife suffered minor injuries, San Diego California DUI lawyers suspect.
Romero's truck rolled several times down an embankment until it came to a stop in a ditch.
One of his legs was severed at the knee but he still tried to escape o - fficers and hopped about 50 feet before he fell to the ground.
He was taken to a hospital and will be booked on several felony charges including manslaughter, hit and run, San Diego California DUI driving under the influence and evading arrest.

To contact a San Diego DUI Lawyer who can help
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 .

Filed 4/20/09
CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----



THE PEOPLE,

Plaintiff and Respondent,

v.

JASPER DWIGHT BRANNER,

Defendant and Appellant.
C059288

(Super. Ct. No. 04F11213)



APPEAL from a judgment of the Superior Court of Sacramento County, Troy L. Nunley, Judge. Affirmed.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes, Supervising Deputy Attorney General, Darren K. Indermill, Deputy Attorney General, for Plaintiff and Respondent.

After the magistrate denied his motion to suppress evidence, defendant Jasper Dwight Branner pled no contest to possession of cocaine base for sale and admitted a prior conviction in exchange for dismissal of the remaining two counts and enhancement allegations. The trial court imposed the low term with additional years for the prior conviction for a total of six years in state prison.
On appeal, defendant contends the magistrate erroneously denied his suppression motion. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2004, Sergeant Kenneth Georges of the Sacramento County Sheriff’s Department was watching an apartment complex on Howe Avenue because of complaints regarding narcotics sales in its parking lot. On November 27, 2004, Sergeant Georges saw a Jeep and ran a records check on the license number. From this check, he learned defendant was the registered owner. Sergeant Georges then ran a records check on defendant and learned defendant was required by law to report his residence to local law enforcement because of a prior narcotics conviction. Sergeant Georges did not know if defendant was at the apartment complex that night.
The next month, Sergeant Georges watched the complex again with several officers, including Detective Jeff Spackman, because there were still complaints about narcotics sales. On December 17, 2004, Sergeant Georges and Detective Spackman were both wearing plain clothes and driving an unmarked car. Because they could not find a suitable parking space when they first drove into the parking lot, they exited to reenter the lot to look again.
As they turned back into the parking lot, they saw the same Jeep from the previous surveillance “start to pull in front of [them and] go into the complex.” They followed the Jeep, which stopped at the northwest corner of the complex near a laundry room for approximately 10 minutes. At one point while it was stopped, the officers saw all of the Jeep’s passengers get out. Eventually, three people returned to the Jeep, including defendant, who was the driver. The defendant drove east through the parking lot and turned south, passing the officers. At this time, the officers saw the rear license plate light was not working and one of the headlights was misaligned so it would light the ground four to five feet in front of the Jeep.
After the defendant passed the officers in the Jeep, “[i]t continued southbound and then made a left-hand turn around the corner of the apartment complex to head east out to Howe Avenue.” When the officers followed and began turning to leave the parking lot onto Howe Avenue, they saw the Jeep had pulled over with a passenger door open, and a man was urinating on a wall inside the complex less than 10 feet from the Jeep. The officers approached the Jeep while it was still inside the parking lot.
While Sergeant Georges contacted the man urinating on the wall, Detective Spackman approached defendant and identified himself. Detective Spackman “explained what was going on” and asked defendant and the other passenger if they were on probation or parole or had any outstanding warrants; they said no. When Detective Spackman asked for identification, defendant produced a driver’s license and the other passenger produced a California ID card. The male who urinated was placed in the car of another officer who had just arrived. Ultimately, the officers gave the man a warning.
Detective Spackman went to his car and called the records division to determine if defendant and the other passenger were on probation or parole or had any outstanding warrants. The records check took “probably less than five minutes.” During this records check, Sergeant Georges began asking defendant and the other passenger if they were on probation or parole, “basic questions of that nature.”
As a result of the records check, Detective Spackman learned defendant was listed as a “[Health and Safety Code section] 11590 registrant” and learned his last registered address. He relayed these results to Sergeant Georges. Sergeant Georges, then roughly 10 minutes into what was ultimately a 15-minute conversation with defendant, asked him about his residence. Defendant responded he had not lived at his last registered address for at least eight months. Consequently, Sergeant Georges told defendant he was under arrest for not registering his address. He took the other passenger out of the Jeep and, with another deputy’s help, searched it. The parties stipulated the officers’ search of the Jeep produced cocaine base and a gun. No officer wrote a citation for the traffic offenses that night.
DISCUSSION
Defendant contends the magistrate erred in not suppressing evidence the officers acquired when they detained him. We disagree.
I
Standard Of Review
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
II
Defendant Was Lawfully Detained In The
Parking Lot For Traffic Violations
Because the People concede defendant was detained, we first address defendant’s assertion that the detention was unlawful because the officers did not have the requisite suspicion that he committed traffic violations on a highway. “[T]o justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place . . . , and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893.) The officer must have been objectively reasonable in entertaining such a suspicion. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 233.)
Here, Sergeant Georges and Detective Spackman had specific and articulable facts to suspect defendant committed traffic violations on a highway because the rear license plate on his Jeep was not illuminated (Veh. Code, §§ 24252, subd. (a), 24601) and one of the headlights was out of alignment (id., § 24409). Although they detained defendant in the parking lot, which is not a “highway” under the Vehicle Code (see id., §§ 21001, 360), Detective Spackman testified that when they were waiting to turn into the complex, they saw the Jeep “start to pull in front of [them and] go into the complex.” The officers saw the Jeep with its lighting malfunctions when it passed them roughly 5 to 10 minutes after entering the complex.
From these facts, the officers could have reasonably suspected two lights on opposite ends of the Jeep did not begin malfunctioning within that short amount of time. At the very least, the officers could have reasonably suspected that at least one of the lighting malfunctions occurred while the Jeep was on Howe Avenue. Accordingly, they had a valid basis to detain defendant in the parking lot.
II
The Police Validly Ran A Check On Defendant’s
Driver’s License Because They Had
Probable Cause For A Custodial Arrest
Defendant next contends his detention was unduly prolonged. We disagree.
An investigatory detention is unconstitutional if it is “‘extended beyond what is reasonably necessary under the circumstances that made its initiation permissible.’” (People v. McGaughran (1979) 25 Cal.3d 577, 586.) “A detention that is unreasonably prolonged amounts to a de facto arrest that must be supported by probable cause to be constitutionally valid.” (People v. Gomez (2004) 117 Cal.App.4th 531, 538.) “Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime.” (People v. Kraft (2000) 23 Cal.4th 978, 1037.)
Furthermore, if a law enforcement officer has probable cause to believe a person has committed even a very minor criminal offense in his presence, the officer may, without violating the Fourth Amendment, effect a custodial arrest of that person. (See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354 [149 L.Ed.2d 549, 577].) “[T]here is nothing inherently unconstitutional about effecting a custodial arrest for a fine-only offense.” (People v. McKay (2002) 27 Cal.4th 601, 607 [riding a bicycle in the wrong direction in violation of the Vehicle Code].)
Here, Sergeant Georges and Detective Spackman had probable cause to believe defendant violated the Vehicle Code because they saw him driving in the parking lot minutes after following him from Howe Avenue. (In Re Tony C., supra, 21 Cal.3d at p. 893.) Thus, under Atwater these violations also provided probable cause to effect a custodial arrest. (People v. Gomez, supra, 117 Cal.App.4th at pp. 538-539.) Stopping his Jeep for Vehicle Code violations, even if done as a pretext to investigate some other unlawful conduct, was legally justified. (Id. at p. 537, citing Whren v. United States (1996) 517 U.S. 806, 812-813 [135 L.Ed.2d 89, 97-98].)
Defendant’s assertion that he was not subject to a custodial arrest, while correct (see Pen. Code, § 853.5, subd. (a)), is nonetheless irrelevant because state arrest procedures are not a part of our inquiry in determining whether the Fourth Amendment has been violated. (People v. McKay, supra, 27 Cal.4th at p. 605.) Indeed, Atwater forecloses defendant from challenging his custodial arrest on Fourth Amendment grounds after a valid traffic stop. (People v. Gomez, supra, 117 Cal.App.4th at pp. 538-539.)
Because defendant heavily relies on People v. McGaughran, a closer look into the case is warranted. In McGaughran, a police officer on patrol saw the defendant driving in the wrong direction on a one-way public street and stopped him. The officer explained why he pulled the defendant over and asked for identification; the defendant produced his driver’s license. (People v. McGaughran, supra, 25 Cal.3d at p. 581.) A discussion ensued for the next three to four minutes, including the defendant’s explanation that he was lost. (Ibid.) The officer returned to his patrol car and began a radio check for outstanding arrest warrants in the defendant’s name. Roughly 10 minutes later the dispatcher reported a warrant for the defendant. (Ibid.) The officer called for assistance and requested a confirmation of the warrant. It was confirmed by radio 20 to 25 minutes later, and the defendant was arrested. (Ibid.)
In its analysis, the court concluded the 10-minute detention was unconstitutional based on both the Vehicle Code and the Fourth Amendment. (People v. McGaughran, supra, 25 Cal.3d at pp. 586-587.) The Vehicle Code required the officer to release the defendant from custody after giving a written promise to appear. (Ibid.) For the Fourth Amendment rationale, the court reasoned all that was reasonably necessary was for the officer to examine the defendant’s license and registration, explain the violation, and either give a citation or a warning; thus, the additional 10-minute detention for the warrant check was not reasonably necessary for “that process.” (McGaughran, at p. 587.)
The reasoning in McGaughran reveals why the case conflicts with the current state of the law. First, the McGaughran court clarified it was not addressing those traffic offenses “for which the officer is either required or authorized to take the defendant into custody and transport him . . . for the filing of a complaint.” (People v. McGaughran, supra, 25 Cal.3d at p. 583.) Further, in framing the issue, the court relied on the fact that the defendant could not be arrested for that particular Vehicle Code violation, stating “the issue is whether a police officer who (1) has stopped a motorist for a traffic violation for which the latter cannot be taken into custody and (2) has already detained the offender for the period necessary to perform his functions arising from the violation, can thereafter lawfully detain him for an additional period of time solely for the purpose of conducting a warrant check.” (Id. at p. 586, italics added.)
Defendant’s reliance on McGaughran is misplaced. Defendant cites McGaughran for the principle that “a driver cannot be detained beyond the time needed to deal with the traffic offense. [¶] [I]f the officer delays the completion of his duties [incurred by virtue of the traffic stop] to await the response to his warrant inquiry, and the additional period of detention is not ‘reasonably necessary’ to the process of dealing with the initial offense, the rule permitting such checks is inoperative and the delay will be unconstitutional.”
Although we are bound by a decision from the California Supreme Court (People v. Haynes (1998) 61 Cal.App.4th 1282, 1298), we must read McGaughran in light of subsequent changes in the law. First, article I, section 28(d) of the California Constitution was amended into the law by Proposition 8, which was adopted by voters three years after McGaughran, eliminated “a judicially created remedy for violations of the search and seizure provisions of the . . . state Constitution[], through the exclusion of evidence so obtained, except to the extent that exclusion remains federally compelled.” (People v. McKay, supra, 27 Cal.4th at p. 605, italics omitted.) Thus, when analyzing the admissibility of evidence under the Fourth Amendment, we cannot impose stricter standards than those of the United States Supreme Court. (People v. Banks (1993) 6 Cal.4th 926, 934.) Second, the United States Supreme Court’s holding in Atwater now allows law enforcement officers to effect a custodial arrest for a fine-only traffic offense without violating the Fourth Amendment. (Atwater v. City of Lago Vista, supra, 532 U.S. at p. 323 [149 L.Ed.2d at p. 558].) Third, the California Supreme Court’s holding in McKay, which relied on Atwater, clarified that the constitutionality of a custodial arrest does not depend on state procedures that the federal Constitution does not compel. (People v. McKay, supra, 27 Cal.4th at p. 614.)
Defendant contends Atwater and McKay do not affect the outcome here because the police did not effect a custodial arrest -- and, in fact, could not have effected a custodial arrest -- under state law. Gomez, which defendant ignores, clarified that the permissibility of a custodial arrest under state law has no bearing on whether there was a Fourth Amendment violation. (People v. Gomez, supra, 117 Cal.App.4th at p. 539, citing People v. McKay, supra, 27 Cal.4th at p. 610.) Gomez also explained that where law enforcement officers have probable cause for a custodial arrest, even for a minor infraction, then a prolonged detention does not violate the Fourth Amendment, even if the detention is used for investigatory purposes unrelated to the crime for which they have probable cause to effect the custodial arrest. (Gomez, at pp. 539-540.)
Gomez provides the answer here: if the law enforcement officers had probable cause to believe defendant committed traffic infractions, then detaining him longer than necessary to simply cite him did not violate the Fourth Amendment. (People v. Gomez, supra, 117 Cal.App.4th at pp. 539-540.) To the extent McGaughran conflicts with this principle, we believe it is no longer good law. Thus, the magistrate did not err in denying the suppression motion.
DISPOSITION
The judgment is affirmed.



ROBIE , J.



We concur:



SCOTLAND , P. J.



NICHOLSON , J.

San Diego DUI criminal defense lawyers are told the Moreno Valley Police Department, in its continued dedication to public safety, conducted a DUI warrant sweep in the City of Moreno Valley. This focused enforcement effort is part of the ongoing public safety awareness effort being made by the City of Moreno Valley. The focus of the warrant sweep was to reduce DUI and injury collisions by serving outstanding arrest warrants for those subjects that are wanted in connection with a DUI. The Moreno Valley Police Department takes a proactive approach dealing with education and enforcement of the citizens of the city with regard to the issue of drinking and driving.

The Moreno Valley Police Department has a “Zero Tolerance” approach toward DUI drivers. During this operation 61 warrants for misdemeanor DUI were served, one on-sight DUI arrest (driving under the influence), and 3 vehicles were impounded.

The City of Moreno Valley is dedicated to making the roadways safe for all motorists. The Moreno Valley Police Department will continue this increased enforcement throughout the year.


Contact a San Diego DUI Lawyer:

San Diego DUI criminal defense lawyers report DUI Saturation Patrol & Drunk Driving news for San Diego County.

The Escondido Police Department San Diego County conducted a San Diego County DUI saturation patrol Friday night April 17, 2009 from 6:00 PM until 1:00 AM. The emphasis of the San Diego County drunk driving saturation patrol was to detect and arrest intoxicated drivers as well as to enforce all traffic laws within the City.

The following activity resulted from this San Diego County dui saturation patrol:

- 5 drivers were arrested for San Diego County dui - driving under the influence of alcohol / drugs
- 9 field sobriety tests were administered
- 1 driver was cited for having an open container of alcohol in the car
- 35 traffic citations were issued
- 6 vehicles were impounded for drivers who were arrested, did not have a driver
license, or had their driving privilege suspended

Funding for this San Diego County Drunk Driving program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

Officials confirmed that the passenger in a drunk-driving crash on Highway 78 died early Saturday, and the driver was arrested on suspicion of drunken driving and gross vehicular manslaughter.

Authorities came upon the crashed vehicle around 11:30 p.m. Friday just west of Melrose Drive on Highway 78 and found that the vehicle had come from the area of West Vista Way and Santa Clara Drive, San Diego DUI lawyers are told.

Lorenzo Gabriel-Lopez-Gonzalez, a 45-year-old married father from Oceanside, was thrown from the car and died about 45 minutes after the crash, according to the San Diego County Medical Examiner's Office.

The driver, Jesus Alonzo, 26, was treated for injuries at a hospital and then arrested for San Diego DUI.


San Diego's DUI & DMV online consultation at San Diego Drunk Driving Defense Resource Center: San Diego DUI Criminal Defense Lawyer list.

Lot of lawyers try to handle San Diego drunk driving cases, including public defenders, general practitioners, criminal defense lawyers, and DUI Specialist attorneys. A San Diego County public defender is a California attorney provided at little or no cost to provide defense services to people who financially are unable to hire a private San Diego lawyer. Most San Diego County Districts generally do not offer public defenders services unless you are unemployed, significantly under-employed and/or have no assets.

In San Diego California you could get arrested on the highway and detained because they think you were drunk. Well, thinking is certainly not enough reason to detain you, as your San Diego California attorney is sure to tell them. San Diego California DUI occasionally comes with a few more appendages if it gets serious. Sometimes you could get slapped with San Diego California manslaughter or even a San Diego California murder charge if someone died. However, the lines are not always clear. Often it takes a professional touch to draw them out properly so that you don’t lose every step of the way; a touch like that of a San Diego California DUI attorney. The police have a knack for breaking the rules sometimes when they think no one is watching. Your San Diego California DUI attorney can see to it that you don’t get the short end of the stick.

Who you need to good information from are lawyers, specifically San Diego California DUI lawyers. They are the ones you need to get in touch with when the law come calling on one of those intoxicated driving cases. A San Diego California DUI attorney is invaluable in a San Diego California DUI case. Why, that’s what they’re trained for. Try to pull a fast one around them and they’d catch it, yet they’d pull the wool over your own eyes so well that you’d wonder what hit you. San Diego California Cops don’t like them around, and they might just let you go without filing a charge if your San Diego California DUI attorney does a good job.

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



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



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



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



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



You can read more -Why use San Diego County's Specialist in DUI and DMV Law Or try a Free California DUI Evaluation.

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 .

To contact a San Diego DUI Lawyer who can help:

San Diego DUI / Drunk Driving Criminal Defense Lawyers are told that a man accused of killing a pedestrian while driving drunk in Pacific Beach was aware he struck the victim before leaving her and going to eat a hamburger, a San Diego DUI / Drunk Driving police officer testified yesterday.

Alan Mabrey, 45, is charged in the death of Emily Cathleen Dowdy, 24, who worked as a shift supervisor at a local Starbucks. He has pleaded not guilty to murder and other San Diego DUI / Drunk Driving charges.

San Diego DUI / Drunk Driving police investigators from San Diego and Colorado testified Friday in Mabrey's preliminary hearing, after which a San Diego DUI / Drunk Driving judge determined that there was sufficient evidence for a San Diego DUI / Drunk Driving trial.

San Diego DUI / Drunk Driving authorities said Mabrey was driving a 2004 Dodge Ram pickup the evening of Feb. 7 when he struck Dowdy as she crossed Mission Boulevard at Reed Avenue. A male passenger in the truck got out to help her.

Officer Blake Cheary, a San Diego DUI / Drunk Driving / collision investigator for the San Diego Police Department, said that Mabrey admitted to hitting someone to police officers investigating the San Diego DUI / Drunk Driving crash.

“After walking in the roadway and checking on the person he hit, he went to Burger King to 'eat a burger,' ” Cheary testified. San Diego DUI / Drunk Driving police said Mabrey told them at the time that he gets hungry when he is nervous.
San Diego DUI / Drunk Driving Prosecutor Patty Herian has said Mabrey's blood-alcohol content measured 0.22 percent after the San Diego DUI / Drunk Driving accident. The San Diego DUI / Drunk Driving legal limit is 0.08.

An officer from Colorado who also testified said that she arrested Mabrey in April 2008 for a suspected hit-and-run crash. At the time, the officer said Mabrey had a revoked driver's license related to an alcohol offense and she warned him that his actions could hurt someone. “I told him, 'If you continue to drive like this, you're going to kill somebody, ” the officer said.

Mabrey has five convictions for drunk driving in Texas, two of which were felonies. He served five years in prison for his latest DUI conviction in 1999 and has a 2006 conviction in Colorado for false imprisonment, Herian said. Mabrey's premier San Diego criminal defense attorney, Bruce Kotler, objected to some of the San Diego DUI / Drunk Driving officers' testimony, saying Mabrey was not read his Miranda rights when he spoke with some San Diego DUI / Drunk Driving officers outside Burger King.

Superior Court Judge Michael D. Wellington overruled the objection. If convicted of second-degree murder, Mabrey could be sent to prison for 15 years to life. Seven to nine years could be added to the sentence if he is convicted of the other charges – gross vehicular manslaughter while intoxicated, hit-and-run causing death and San Diego DUI / Drunk Driving driving under the influence.
San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"
San Diego DUI Defense Resource Center & DMV Video Information: San Diego DUI Criminal Defense Lawyer list.

San Diego DUI criminal defense lawyers, who regularly face a DUI Prosecutor with a Prosecution's "Retrograde Extrapolation" Lab person say in court one's BAC is higher at time of driving than at time of test most of the time, are having trouble believing this breaking Drunk Driving news.

San Diego Chargers defensive lineman Jamal Williams will be charged with reckless driving – not San Diego DUI / San Diego drunk driving – in connection with his arrest Feb. 1, according to San Diego DUI criminal defense attorneys.

Williams, 32, was arrested on suspcion of San Diego DUI San Diego drunk driving, but his blood sample showed a blood-alcohol level of 0.07 percent, under the California limit of 0.08. The blood was drawn well after the San Diego DUI arrest which means his blood may have been different at the time of driving. Usually the San Diego DUI Prosecutor has her or his San Diego DUI Prosecuting Lab Person say the driver was in a post-absorptive phase and the BAC was higher before the blood was drawn.

The San Diego City Attorney's Office will not be filing charges for San Diego DUI as they claim they do not believe they can prove a San Diego DUI charge beyond a reasonable doubt, say San Diego DUI & Drunk Driving Defense Attorney informants.

Williams was pulled over for speeding in his 2008 Bentley about 1:30 a.m. on state Route 94 east of downtown. His arraignment in San Diego Superior Court is set for April 23.

San Diego Chargers receiver Vincent Jackson also has a court date later this month after pleading not guilty in his own San Diego DUI case. He was arrested January 6, 2009 for San Diego DUI.

You wonder how your true BAC can be attempted by the San Diego City's Attorney to be claimed to be higher at time of driving based on a test done later.

It’s a good qustion. One can try to guess what the true BAC was in a San Diego DUI case by projecting backwards, using average alcohol absorption and elimination rates, but it’s only an inaccurate guess based on assumptions.

It's called "retrograde extrapolation" — a pretty name for trying to guess backwards. The San Diego DUI prosecutor in a San Diego DUI trial often offers BAC test evidence guessing one's BAC...back to the time of driving.

The blood-alcohol level at the time of a San Diego DUI chemical test is not relevant to the San Diego DUI charge. The San Diego DUI prosecutor therefore attempts offer evidence to show what the BAC was when the San Diego DUI arrestee was actually driving.

This is commonly done by “extrapolating” backward - i.e. computing the earlier blood-alcohol level by estimating how much alcohol had been eliminated or “burned off” in the period between San Diego driving and DUI testing.

But retrograde extrapolation requires two assumptions:

(1) The San Diego DUI arrestee's blood-alcohol level was declining; and
(2) The San Diego DUI arrestee's the rate of elimination is known.

This second assumption further involves the San Diego DUI prosecution lab employee's (aka expert's) assumption that the “burn-off” rate was .015 percent per hour (sometimes the assumed rate is .02 percent).

Over the San Diego DUI Defense Attorney's objection, how does the San Diego DUI prosecution know that the San Diego DUI arrestee was eliminating (assuming he or she was eliminating rather than still absorbing) at that rate and not at .005 percent, .3 percent or some other possible scientific rate?!

Quite simply, the San Diego DUI prosecution does not know. The San Diego DUI prosecution laboratory employee merely assumes that the San Diego DUI arrestee was eliminating and that he or she eliminated at the average rate.

The problem is that everyone has a different metabolism, and even a given person will metabolize alcohol at different rates depending on many variables.

In one important study, researchers found a wide range of metabolism rates: some individuals can absorb alcohol and reach peak blood-alcohol levels ten times faster than others. (Kurt Dubowski, “Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects”, Journal on Studies of Alcohol (July 1985)).

As a result, scientists have concluded that the practice of estimating earlier BAC levels in DUI cases is highly inaccurate and should be discouraged.

From the recognized expert in the field, Professor Dubowski of the University of Oklahoma:
It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answer must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood concentration is based on a breath analysis the difficulty is compounded.” 21(1) Journal of Forensic Sciences 9 (Jan. 1976).
“[T]he practice of making back estimation of a person’s BAC is inevitably a controversial issue in DUI litigation and should be avoided whenever possible.”

A.W. Jones & Barry K. Logan, Drug Abuse Handbook 1012. Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California department of Justice Hosted by OC Crime Lab 2000

“Making back extrapolations of BAC is not recommended because of the wide variations in absorption, distribution, and elimination patterns of ethanol both within and between different individuals.” Id. at 347

Citing: Allanowai et. al. Ethanol Kinetics – Extent of Error in Back Extrapolation Procedures. 34 Br. J Clin Pharmacology 316 (1992); Lewis, Back Calculation of Blood Alcohol Concentrations 295 Br. Med J 800 (1987)

“This raises the issue of retrograde extrapolation and there are well-known problems and pitfalls associated with this practice.”

Jones, Status of Alcohol Absorption Among Drinking Drivers, 14 Journal of Analytical Toxicology (1990)

“Retrograde Extrapolation – A Dubious Practice”

A.W. Jones, Medical Conditions and DWI/DUI Challenges, NACDL 9th Annual Seminar (2005)


Dr. Kurt Dubowski (Department of Medicine & Toxicology Laboratories University of Oklahoma)

“It is unusual for enough reliable information to be available in a given case to permit a meaningful and fair value to be obtained by retrograde extrapolation. If attempted, it must be based on assumptions of uncertain validity, or the answers must be given in terms of a range of possible values so wide that it is rarely of any use. If retrograde extrapolation of a blood alcohol concentration is based on a breath analysis the difficulty is compounded.”


Mason and Dubowski, Breath- Alcohol Analysis: Uses, Methods, and Some forensic Problems – Review and Opinion 21 J. Of Forensic Sciences 29.

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

“Finally, no forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results”

Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 Journal of Studies on Alcohol 98, 106 (1985)

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

“Extrapolation of a later alcohol test result to the time of the alleged offense is always of uncertain validity and therefore forensically unacceptable”

Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, 10 Journal of Studies on Alcohol 98, 106 (1985)

Reprinted in “Forensic Alcohol Supervisor Course” California Criminalistics Institute – California Department of Justice Hosted by OC Crime Lab 1998

DO NOT USE RETROGRADE EXTRAPOLATION
(7 REASONS)
According to Dr. Dubowski, the existing information on blood alcohol and breath alcohol versus time curves, the following conclusions can be reached:
1. Not all blood and breath alcohol curves follow the Widmark patterns nor is the elimination necessarily linear.
2. Alcohol absorption is not always complete within 60 to 90 minutes, as often claimed.
3. The peak alcohol concentration cannot be validly predicted or established in an individual instance without frequent and timely measurements of alcohol concentrations.
4. It is not possible to establish whether an individual is in the absorption or elimination phase, or to establish the mean overall rate of alcohol elimination from the blood or breath, from the results of two consecutive blood or breath alcohol measurements, however timed.
5. Significantly large short-term fluctuations occur in some subjects and result in marked positive and negative departures from the alcohol concentration trend line.
6. Short-term, marked oscillation of the blood or breath alcohol concentration can occur at various points of the curve, resulting in repeated excursions of the alcohol concentration above and below a given concentration (such as 80 or 100 mg/dl) within a few minutes or for hours.
7. No forensically valid forward or backward extrapolation of blood or breath alcohol concentrations is ordinarily possible in a given subject and occasion solely on the basis of time and individual analysis results.
Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies on Alcohol Supplement No. 10, July 1985, Dr. Kurt M. Dubowski, Department of Medicine, and Toxicology Laboratories, The University of Oklahoma Health Sciences Center, Oklahoma City, Oklahoma 73190.

DR. DUBOWSKI found that elapsed time from end of alcohol intake to peak blood alcohol concentration varying from 14 to 138 (2hrs. 18 min) minutes, a nearly 10-fold variation.

Equations for blood alcohol concentrations require knowledge of many various factors (times of drinking, quantities of alcohol, food, weight, etc.). As such, numbers can be worked in the direction of the Prosecution or the Defense.

Most San Diego DUI Prosecution "experts" make wrong or questionable assumptions (for example, they usually assume the subject has an "average" rate of alcohol elimination and they usually assume absorption is complete) and, therefore, they come up with questionable, unreliable estimates that should not be allowed into evidence.

If all complete and accurate information is known (San Diego DUI Prosecution lab employees usually do NOT know), BAC calculations may be estimated but only with broad ranges of absorption times and a range of elimination rates. The calculations MUST NOT ASSUME SOME AVERAGE VALUES AND MUST NOT ASSUME COMPLETE ABSORPTION. Retrograde extrapolation without this type of information and without ranges of values is junk science. Normally, the State does not have the required information to perform retrograde extrapolation correctly.

Q. for San Diego DUI Prosecutor: You have a San Diego DUI breath test machine reading of .09% an hour or two after the driving. Scientists say you cannot accurately project that BAC back to the time of driving. If the BAC was rising, it could have been a .07% or even lower. Problem. What to do?

A. You attempt to use California legislation saying that the blood-alcohol when tested is presumed the same as it was when driving.

(But that is not true because BAC constantly changes as alcohol is metabolized.)

Q. How can one legally presume what we know is incorrect?

A. One can never really know.

(But it makes the San Diego DUI prosecutor’s job easier.)

Despite a Presumption of Innocence, make the San Diego DUI defendant try to prove what his or her BAC was an hour or two earlier. California somehow says one's BAC was the same 3 hours earlier — unless one can prove it was not! Here is California’s DUI law:
"In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08% or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent, by weight, of alcohol in his or her blood at the time of performance of a chemical test within three hours after the driving”. (Vehicle Code sec. 23152(b))
POINTS & AUTHORITIES TO EXCLUDE RETROGRADE EXTRAPOLATION AS IT DOES NOT MEET THE DAUBERT “GATEKEEPER” STANDARD (FEDERAL RULES OF EVIDENCE, RULE 702)

In order for scientific evidence to be admissible, it must satisfy the Daubert Standard. Under Daubert, courts must engage in a difficult, two-part analysis. First, a court must determine nothing less than whether the expert’ testimony reflects scientific knowledge, whether their findings are derived by the scientific method, and whether their work product amounts to good science. Second, a court must ensure that the proposed expert testimony is relevant to the task at hand, i.e., that it logically advances a material aspect of the proposing party’s case. The United States Supreme Court refers to this second prong of the analysis as the “fit” requirement. (Daubert v. Merill Dow Pharmaceuticals 43 F.3rd 1311; (1995) Judges perform a gatekeeping role; to do so they must satisfy themselves that scientific evidence meets a certain standard of reliability before it is admitted. An expert’s bald assurance of validity is not enough. Rather, a party presenting an expert must show that the expert’s findings are based on sound science, and requires some objective, independent validation of an expert’s methodology. (Daubert)

Under Federal Rules of Evidence, Rule 702, the court’s responsibility is to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury. “The proponent of the scientific evidence must demonstrate by clear and convincing evidence that the evidence is reliable. This is accomplished by showing the validity of the underlying scientific theory, the validity of the technique applying the theory, and the proper application of the technique on the occasion in question” (Mata v. The State of Texas, 46 S.W.3rd 902 (Tex.Cr.App. 2001):

Factors that may affect reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the testifying expert’s qualifications; (3) the existence of literature supporting or rejecting the underlying scientific theory or technique; (4) the technique’s potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question.

In Mata, the court analyzes the science of “retrograde extrapolation” - the computation back in time of the blood-alcohol level. The estimation of the level of the blood-alcohol at the time of driving based on the result of a test taken some time later. The court determined that multiple tests will increase the ability by an expert to plot a subject’s BAC curve, a test nearer in time to the time of the alleged offense increases the ability to determine subject’s offense-time BAC, and the more personal information known to the subject increases the reliability of an extrapolation. In determining the reliability of retrograde extrapolation, the court should consider:

(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and whether, and if so, to what extent, any individual characteristics of the defendant are were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, and how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what that person had to eat either before, during, or after the drinking.

The court went on to recognize that the expert does not need to know every single personal fact about the defendant in order to produce an extrapolation with the appropriate level of reliability. If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant’s BAC with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. We cannot and should not determine today the exact blueprint for reliability in every case. Suffice it to say that the factors must be balanced.

In the present case, the State of California intends to extrapolate back to prove this San Diego DUI arrestee was under the influence while driving. There are times of driving, PAS tests and implied consent breath tests. Because of the remoteness of the alleged driving and the test results, an expert must have knowledge of many personal characteristics and behaviors of defendant in order for the retrograde extrapolation to be reliable.

From defendant's driver’s license information, an "expert" can attempt to obtain his height and weight (at one time), but nowhere in the police report does it state defendant's typical drinking pattern and tolerance to alcohol, and how much and what he had to eat either before, during, or after the drinking. The only information available is in the police report which states that defendant admitted to having drinks. This clearly is not enough to make a reliable extrapolation.

RETROGRADE EXTRAPOLATION DOES NOT MEET THE KELLY/FRYE “GENERAL ACCEPTANCE” TEST

Under the Kelly/Frye rule, a new scientific technique must be sufficiently established to have gained general acceptance in the particular field in which it belongs, in order to be admissible in evidence. The proponent of the evidence bears the burden of proving a consensus of opinion and must establish (1) the reliability of the method, usually by expert testimony; (2) the qualifications of the witness providing the testimony; and (3) that correct scientific procedures were used in the particular case. The expert witness must possess academic and professional credentials that permit him to understand the scientific principles involved and any differing viewpoints regarding reliability. The witness must also be impartial -- not so personally invested in establishing the technique's acceptance that he might not be objective about disagreements within the relevant scientific community. People v. Morris, 199 Cal. App. 3rd 377, (1988).

RETROGRADE EXTRAPOLATION IS MORE PREJUDICIAL THAN PROBATIVE, IT WILL NECESSITATE UNDUE CONSUMPTION OF TIME, AND IT WILL CONFUSE THE ISSUES, AND MISLEAD THE JURY

Evidence Code § 352:
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Here, any evidence of “Retrograde Extrapolation” is going to be predicated upon assumed hypothetical facts that cannot be proved by the prosecution. Assumptions are therefore of the highest speculative nature. It will create a very high risk of confusing the issues and misleading the jury. Moreover, it will result in a definite undue consumption of time.

San Diego DUI Defense Lawyers point out that error in such an assumption translates into error in the extrapolation. Legendary Don Nichols, one of the most respected DUI defense attorneys & author of "Drinking Driving Litigation" knew how to properly handle possible error in assumptions. Don pointed out to juries that his client is female, Chinese and deceased despite obvious evidence to the contrary.

Don then explained that statistically there are more women than men in the world, more Chinese than any other nationality, and more dead human beings than living ones. Statistically, then, the average person is female, Chinese and deceased. So must be his client, according to the DUI Prosecutor. Don further asked his juries how many of them have 2.3 children, the average in the United States.

So why does the San Diego DUI prosecution "expert" presume facts that are clearly untrue? Simple. It's very expedient - it makes San Diego DUI prosecution and possible San Diego DUI conviction after trial much easier. Which is one more reason why you want to hire a San Diego DUI Attorney Specialist. Why not in this case?

San Diego's DUI & DMV online consultation at San Diego Drunk Driving Defense Resource Center and San Diego DUI Defense Video Resource Center.

San Diego California DUI Lawyers suggest one may visit below sites:

Shasta County prosecutors are touting their “tougher stand” toward drunken driving as the force behind their standing as the county with the second-highest DUI conviction rates in California.

Some 96.9 percent of drivers arrested for DUI in 2006 and 2007 were convicted, according to a statement released today by the Shasta County District Attorney’s office, citing a California Department of Motor Vehicles report.

Of the state’s 58 counties, only Placer County had a higher conviction rate, with 99.2 percent of drunken driving cases resulting in convictions.

“The increased conviction rate is indicative of better investigated DUI cases by law enforcement and higher-quality prosecutions coupled with a tougher stand on DUI cases by the Shasta County District Attorney’s Office,” District Attorney Jerry Benito said in the statement.

The report also touts a 40 percent increase in DUI arrests between 2006 and 2007.

In 2006, 1,276 people were arrested. The following year, 1,796 were.

The increase in part is due to the Redding Police Department assigning two full-time patrol officers devoted entirely DUI patrols those years, as well as stepped up drunken driving enforcement efforts from other county law enforcement agencies, Benito said.

The grant that funded the two Redding police officers dried up at the start of this year.

The Assembly Public Safety Committee just approved, with bi-partisan support, a pilot program requiring those convicted of their first DUI offense to have an Ignition Interlock Device, or IID, in their cars for five months. Assemblyman Mike Feuer (D) of Los Angeles is championing the move.
"That habitual use of this device assures that they are in a condition in the future to drive sober again," said Assemblyman Feuer.
The program, paid for by grants and the offender, would be tested in five counties where DUI arrests are high: Los Angeles, Orange, San Diego, Alameda, and Sacramento.
A positive blow for alcohol into the breathalyzer prevents the car from starting. The American Beverage Institute fought hard to kill the bill because it takes away judicial discretion for those not too much over the legal limit.
"When it comes to speeding, for example, you don't punish somebody going five miles over the speed limit the same way you do for somebody going 30 miles over the speed limit," said Sarah Longwell, from the American Beverage Institute.
But California's own DMV concluded the IID's were not effective in reducing DUI convictions or incidents for first time offenders.
Still, there's no denying what might have happened had Assemblyman Feuer been successful in getting the ignition lock bill approved last year. The suspected drunk driver in the Adenhart crash, Andrew Thomas Gallo, already had a DUI conviction and the Orange County District Attorney says he was three times over the legal limit this time.
"If we had this law, those three young people in that car quite possibly would have been alive today. The offender would have an IID as a protection device, not so much as a penalty, but to protect him too," said Mary Klotzbach, from Mothers Against Drunk Driving.

San Diego Drunk Driving Defense Resource Center

San Diego DUI lawyers are told of a new report from the AAA finds that while men are still the most frequent DUI offenders, a growing number of young women are driving drunk behind the wheel in California.

According to the Sacramento Bee, AAA researcher Stephen Bloch says the statistics show that DUIs of women age 21 to 24 more than doubled in the last decade.

Bloch told the state's Office of Traffic Safety that the increase may have something to do with Hollywood and the increase in DUI arrests of young female celebrities.

Adrian Quintero of the California Highway Patrol says the DUI figures show that women have not increased their consumption of alcohol, but have been increasingly behind the wheel.

"If women go out drinking as a group, it's not that women are drinking more but that women are in the driver's seat when the car is pulled over," he told the paper.

Last month Lindsey Lohan had an arrest warrant issued against her stemming from a 2007 DUI arrest - her first of two DUI offenses that year. The arrest warrant was later dropped after a judge said a paperwork mix-up appeared to show Lohan had met the conditions of her probation.

DUI Criminal Defense Lawyer in San Diego, California

San Diego DUI lawyers say if you are ever arrested for a DUI, there is only one chemical test you are legally obligated to take that is either a breath test or blood test after you have been lawfully arrested.

California’s “Implied Consent” law under Vehicle Code Section 23612 states: “Any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purposes of determining the alcoholic content of his or her blood, if lawfully arrested for any offense allegedly committed in violation of section 23140, 23152 or 23153 (the California DUI laws).”

Refusal to submit to a chemical test acts as an enhancement allegation in a DUI case and carries with it additional penalties above and beyond what is normally imposed for a DUI conviction. However, just because you refuse to take a test, does not mean your case is a loser.

It is actually one less piece of evidence the prosecution has to use to prove that you were under the influence of alcohol.

There are a number of defenses available in a chemical test refusal DUI case in San Diego.

The following are leading chemical test refusal DUI case defenses in San Diego drunk driving cases:

Unlawful Arrest: If it can be shown that the officer had insufficient cause to pull you over or arrest you, then whether or not you validly refused a chemical test is of no consequence.

Officer Failed to Properly Advise You: In order for a chemical test refusal to be valid, the officer must follow a specific set of instructions to both advise your of your legal obligation to submit to a chemical test, as well as, advise you as to the consequences for refusing to do so. An improper advisement in this regard will invalidate any alleged refusal.

Office Induced Confusion: If the manner in which the officer advises you of your legal obligation to submit to chemical test and the potential consequences for failing to do so causes you to be confused, then this can negate the validity of the refusal.

You Did NOT Refuse: An officer may get frustrated with an individual who understands that they do not have to submit to the field sobriety tests (FSTs) or the Preliminary Alcohol Screening test (PAS) to the extent that their refusal to submit to those tests will be deemed by the officer as an outright refusal to all tests. In these instances, the officer may never even give the advisement and just railroad the person into a refusal situation despite their attempts to inform the officer of their willingness to submit to a post-arrest chemical test.

To contact a San Diego DUI Lawyer who can help

San Diego DUI Lawyer Rick Mueller, a premier San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience, tells of a state bill to require ignition interlock devices on vehicles driven by anyone with a previous California DUI / drunk driving conviction may gather more support after last week's California DUI / drunk driving crash that killed Angels pitcher Nick Adenhart.

Assemblyman Kevin Jeffries, R-Lake Elsinore, co-authored a California DUI / drunk driving bill , AB 91, which would create a pilot program to require California DUI / drunk driving offenders to install ignition interlock devices on their vehicles or any vehicle they drive.

Assemblyman Mike Feuer, D-Los Angeles, introduced the California DUI / drunk driving bill in January. The Assembly's Public Safety Committee will hear the California DUI / drunk driving bill Tuesday.

An alcohol ignition interlock, paid for by the convicted California DUI / drunk driving driver, is a breath-test device linked to a vehicle's ignition system, according to Mothers Against Drunk Driving, which has been pushing for laws to require them. When a driver wishes to start the vehicle, they must blow into the device first. The vehicle won't start if alcohol is detected in the driver's system, according to California DUI / drunk driving criminal lawyers.

The California DUI / drunk driving pilot program in the bill would only require the devices in Los Angeles, San Diego, Alameda and Sacramento counties, where MADD says 40 percent of California's DUI arrests were made in 2007.

Police arrested Andrew Thomas Gallo, 22, of Riverside on suspicion of causing the crash that killed Adenhart and two others in Fullerton early Thursday morning. Gallo, who was on probation in connection with a 2005 California DUI / drunk driving conviction in San Bernardino County, and is charged with three counts of second-degree murder as well as other felony counts related to California DUI / drunk driving.

Adenhart, Cal State Fullerton student Courtney Stewart and law student Henry Pearson died in the accident. Another passenger in that crash, former Cal State Fullerton baseball player Jon Wilhite, remained hospitalized Saturday in serious but stable condition at UC Irvine Medical Center, California DUI / drunk driving attorneys report.

Jeffries said he's not familiar enough with Gallo's history to know if such a California DUI / drunk driving device would have prevented Thursday morning's crash but said people are frustrated by California DUI / drunk driving drivers and the California DUI / drunk driving accidents they cause. Many California DUI / drunk driving questions remain and things are unknown.

San Diego California DUI / drunk driving attorney 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. 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. San Diego DUI Defense Attorneys, with a video.

San Diego DUI criminal lawyers and San Diego Drunk Driving criminal defense attorneys are told the defense attorney for the third and final Marine charged with killing an unarmed insurgent in Iraq says prosecutors should heed the acquittals of two co-defendants and drop the case against his client.

Attorney Joseph Low said Friday that it makes no sense for the Marine Corps to pursue the case against Sgt. Jermaine Nelson.

"I am submitting that request to the Marine Corps," Low said. "The Marine Corps should have gotten the message loud and clear now that these cases should never have been brought."

Nelson is charged with murder and dereliction of duty for allegedly killing one of four unarmed prisoners that he and members of his Camp Pendleton squad captured during a battle for the city of Fallujah in November 2004. He has pleaded not guilty.

On Thursday, Sgt. Ryan Weemer was acquitted by a jury of eight Marine officers on identical charges.

In August, Weemer and Nelson's squad leader at Fallujah, former Marine Sgt. Jose L. Nazario Jr., was acquitted on two counts of manslaughter by a civilian jury that heard his case in U.S. District Court in Riverside. Nazario was tried as a civilian because he had left the Marine Corps and was not subject to recall into the service.

Low said that Nelson, 26, was elated with Weemer's acquittal following a six-day trial.

"He was very excited for him," Low said. "He loves Ryan and he's just very, very happy for him."

Nelson remains on duty at Camp Pendleton pending resolution of his case. His trial date has not been set, but is expected to take place soon if the Marine Corps rejects Low's plea to drop the case.

A Marine Corps spokesman, Lt. Col. David Griesmer, said Friday that there is no change in the status of Nelson's case.

Nelson was on his second combat tour in Iraq when the Fallujah killings occurred.

Weemer first disclosed the incident during a job interview, telling an investigator about the capture of four suspected insurgents and revealing that they were ultimately shot even though none was armed.

His defense was that the man he was guarding lunged for his gun, prompting him to shoot in self-defense.

Jurors who decided Nazario's case said that they did not believe it was their place to second-guess actions that took place in battle.

Prosecutors had no autopsy reports, no bodies, no names to attach to the victims and no witnesses. Their case was built entirely on statements from the three defendants.

Low said Nelson is a quality Marine who overcame a difficult childhood to join the service and achieve the rank of sergeant.

"This is a kid ... who never met his father and found his mother dead of a drug overdose at age 8," Low said. "He was then passed around from friend to friend and pretty much grew up on his own."

His life turned around when a lacrosse coach in Connecticut took him under his wing, Low said.

Nelson was so eager to join the Marine Corps after leaving high school that he requested and won approval to get on a plane for boot camp within hours of being accepted into the service, Low said.

Besides preparing a formal request for the Marine Corps to drop the case against Nelson, Low also is circulating a petition citing the two acquittals and arguing that continuing the prosecution "may only serve to erode the credibility of the military justice system."

San Diego DUI Criminal Defense Lawyer list

San Diego DUI criminal defense attorneys report the California chapter of Mothers Against Drunk Driving chose the Chula Vista Police Department as its "Law Enforcement Agency of the Year," a department spokesman said Thursday.

The San Diego California DUI award will be presented at the Statewide Law Enforcement and Community Recognition Dinner on April 18 in Sacramento.

Police spokesman Bernard Gonzales said he believes Chula Vista's numerous traffic-focused campaigns impressed MADD officials who selected them.

"We've done a lot of work in the last five years in trying to curtail San Diego DUI but also people driving illegally on suspended licenses or no licenses."

Chula Vista Police Department also has a number of campaigns going on from pedestrian safety to combating street racing.

San Diego's DUI & DMV online consultation San Diego Drunk Driving Defense Resource Center:
San Diego DUI Lawyer - San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge

San Diego California DUI Evaluation reports Lawrence Thompson was arraigned Wednesday in the alleged drunk-driving death of 8-year-old Brandon Brownen.

Thompson, 54, is accused of hitting the Oildale boy in February while Brownen was riding a skateboard on Sherman Peak Drive.

Thompson reportedly didn't stop driving his pickup, and California Highway Patrol officers and Kern County Sheriff's deputies found him at home asleep on his bed.

He's charged with DUI vehicular manslaughter, driving under the influence and hit-and-run. Thompson has previous offenses and pleaded guilty in 1990 to disorderly conduct and pleaded guilty in 1992 to misdemeanor driving under the influence.

If you see more highway police writing tickets on Inland freeways, it's because of stepped-up efforts to reduce injuries and fatal wrecks by cracking down on speeders.

As part of a $3.5 million statewide grant by the California Office of Traffic Safety, more officers will be paid overtime hours to patrol major freeways and county roads in Riverside and San Bernardino counties.

The nine-month campaign, dubbed Comprehensive Approach to Reducing Speed, or CARS, is aimed at ticketing drivers for speeding, following too closely, improper turning or lane changes, and driving under the influence of drugs or alcohol.

California Highway Patrol officials say the three largest contributors to injuries or fatalities are speeding, not wearing seat belts and DUI.

"We felt it necessary to put enforcement efforts to keep drivers from killing themselves and other people," said Chris Cochran, spokesman for the California Office of Traffic Safety. "It primarily puts officers on the road actively seeking out speeders."

Some of the most problematic areas are along remote stretches of Interstate 10 between Cabazon and Arizona and along the stretch of Interstate 15 near Barstow, said CHP Officer Mario Lopez.

"A lot of motorists travel far and above the natural speed limit and the long stretch of highway in that area," Lopez said. "There are a large number of fatalities tied to the high speed and some tired drivers."

Following the speed limit can reduce the chance of collisions in case of a sudden stop or if a driver loses control of a vehicle, Lopez said. Many violations, such as vehicles traveling too closely or unsafe lane changes, may be left to an officer's judgment as to what's unsafe.

Though officers expect to write more tickets, the move is not going to necessarily fill the coffers, Lopez said. Funding from the tickets generally goes to county or city governments and to pay court fees, Lopez said.

"The CHP does not receive any funding from the tickets we write," Lopez said. "It doesn't matter if we write five tickets or 10 tickets, our goal is to reduce accidents and fatalities."

For your best San Diego California DUI defense attorney strategy, here's a list of San Diego DUI Lawyers.

San Diego Drunk Driving Defense Center reports a man suspected of intentionally crashing his truck into a North County convenience store in an alleged drunk rage led officers on a lengthy road chase Tuesday before finally pulling over and being arrested.

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Police got a report shortly before 3:30 a.m. that a motorist was ramming the Circle K market at College Boulevard and Vista Way in Oceanside in anger over being told that the business had closed for the night and could not sell him gasoline,
sources said.

Following the destructive outburst, the irate man -- later identified as 33-year-old Edward Mone of Vista -- drove off, and responding officers caught up with his rust-colored Ford Ranger on College Boulevard, near Oceanside Boulevard, sources said.

When the officers activated their overhead lights, Mone pulled over, but took off when they got out of their cruisers and were walking toward his vehicle.

As the officers gave chase, one of them crashed her squad car near the intersection of College Boulevard and Chroma Drive, according to sources. Medics took her to Palomar Hospital for treatment of minor bumps and scrapes.

Mone, meanwhile, continued fleeing at high speed to the north, then to the east on State Route 76. When the pursuit entered Bonsall, the officers tailing Mone were called off for safety reasons, due to the suspect's reckless driving and speeding.

Mone eventually doubled back and headed to the west on SR-76, at which point he cut off an off-duty Border Patrol officer's car in traffic, prompting him to began following the suspect.

Mone continued toward the coast, then headed south and entered Carlsbad, finally stopping at a gas station on La Costa Avenue, presumably to get the gas he had been unable to buy at the convenience store in Oceanside, sources indicate.

Carlsbad police arrived a short time later and arrested Mone without further incident. He was booked into county jail on suspicion of vandalism, evading police and drunken driving, allegedly. The suspect allegedly caused about $1,000 worth of damage to the front doors of the Circle K store, according to San Diego California DUI Attorneys.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Superb San Diego DUI Lawyer will help you.
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San Diego's DUI & DMV lawyers have a new video at San Diego Drunk Driving Defense Resource Center:
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A woman who crashed into a line of stopped vehicles while text-messaging on her cell phone has been sentenced to six years in a California prison for killing a woman in one of the vehicles.

Investigators said Deborah Matis-Engle was speeding while text messaging when she slammed into the vehicles stopped at a construction zone in August 2007. Deborah Matis-Engle was sentenced March 3, 2009, by a judge in Redding, California.

A Shasta County prosecutor said 49-year-old, Deborah Matis-Engle had paid several bills by cell phone in the moments before the crash, and she was in the middle of one of those transactions when she struck a vehicle that burst into flames, killing 46-year-old Petra Winn. The defense is expected to fiel an appeal.

San Diego Drunk Driving Defense Resource Center reports that a man suspected of driving while drunk ran into a 7-year-old boy in Logan Heights, unfortunately breaking one of his legs, San Diego DUI police said yesterday. Phillip Jones, 48, was allegedly driving west in the 2900 block of Imperial Avenue about 8:40 p.m. Saturday when the boy, chasing a basketball, ran out into the street in front of his car, according to San Diego DUI lawyers.

Even though it does not appear to be his fault, Jones was booked on suspicion of driving under the influence, San Diego DUI attorneys are told.
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San Diego DUI defense attorneys report a lab technician's laboratory work - who tested evidence in more than 7,000 criminal cases across Riverside, San Diego and San Bernardino counties - has been called into question after authorities learned he admitted to lying under oath and falsifying reports during his work at a lab in Colorado.

Last week, the San Diego district attorney's office sent a letter to defense attorney organizations to inform them about former lab technician Aaron Layton's work history and criminal record, said Victor Nunez, an official with the district attorney's office.

Layton worked on thousands of regional cases while employed at Bio-Tox Laboratories in Riverside, a private forensic toxicology laboratory that tests evidence in many drug- and alcohol-rated cases for law enforcement agencies in Riverside, San Diego and San Bernardino counties. Layton, 30, worked there for about 20 months until he was fired in February, said Tracey Stangarone, Bio-Tox's business manager.

Blood or urine samples Layton worked on came from a variety of cases including DUIs, vehicular manslaughter cases and drunk-in-public citations, announced John Hall of the Riverside County district attorney.

In December, investigators for the district attorney discovered during a background check that Layton was a convicted sex offender. Later prosecutors found that Layton had previously admitted to breaking several laws including DUI - driving under the influence on numerous occasions.

The district attorney's office had declined routine requests from defense attorneys to investigate Layton for more than a year, said Riverside County Supervising Public Defender Christine Voss. His criminal record surfaced after a rookie public defender demanded that prosecutors check whether the technician had a criminal past. Now public defenders may seek to overturn convictions based on Layton's lab work, she said.

Scandals involving crime labs have led to the release of prisoners and monetary damages across the nation in recent years; the most prominent example led to a shakeup at the FBI's crime laboratory in the late 1990s. But he stood by his work in a Jan. 22 letter to Riverside County Assistant District Attorney Kelly Keenan.

"I know that the work I perform is exceptional," Layton said in the letter. "I believe I am a good person; one who has made some poor choices in life but is looking forward to a long and productive career in a field that I am very good in."

In Riverside County, Layton worked on about 3,200 cases, Hall said. In San Bernardino County, Layton worked on as many as 4,700 cases, said Assistant District Attorney Dennis Christy.

Earlier this year, Riverside prosecutors sent letters to defense attorneys in the county to inform them about Layton's past, and San Bernardino officials followed suit in March.

San Diego County officials have yet to determine how many cases Layton had a hand in, Nunez said, adding that he could not speculate at this stage whether it was as few as a dozen or in the thousands.

Nunez said about 60 letters were being sent last week. When more information about the specific San Diego cases Layton worked on is determined, letters will be mailed to individual defense attorneys, he said.

Stangarone said Bio-Tox was retesting blood and urine samples for cases Layton worked on at no cost to the counties.

Retesting of about 500 cases for which Layton processed evidence showed no inconsistencies from the original results, Stangarone said. An official with the Riverside County public defender's office disputes that contention, however, saying at least one retest that she was aware of showed different results.

"We remain confident that we will continue to show that there was no misconduct," Stangarone said. "Our work experience with Mr. Layton was that he was reliable, hardworking, cooperative and knowledgeable. While we are deeply disappointed by this discovery, his history from years ago does not match the type of employee he (was) at Bio-Tox. ... We didn't see this coming."

In probing Layton's past, Riverside County prosecutors discovered that he had admitted to several criminal acts during a pre-employment lie-detector test he took when applying for a job with a police department in Ohio in 2003.

As detailed in letters to defense attorneys written by Riverside County prosecutors, Layton acknowledged that when he worked for Forensic Laboratories in Colorado in the early 2000s, he:

-- lied under oath in 2001 when asked whether he had performed two toxicology tests on a sample;

-- did not conduct so-called confirmatory tests on samples, then falsified reports "hundreds of times" by stating those second tests had been done;

-- forged his employer's signature, including on court affidavits involving evidence;

-- stole from his employer and others;

-- drove under the influence numerous times;

-- and purchased alcohol for minors 10 times.

Prosecutors also said that Layton was convicted of sexual assault on a minor in El Paso County, Colo., and subsequently failed to register as a sex offender when living in Colorado, which led to him being placed on probation until November 2009. They did not list any other convictions.

After the discovery, the district attorney's office in Riverside County began informing defense attorneys of Layton's criminal history, Hall said. Officials sent letters summarizing the polygraph test results to defense attorneys in February. Letters continue to go out as more cases Layton worked on are identified, he said.

San Bernardino County prosecutors are taking a different approach. Its district attorney's office has sent six letters to defense attorneys in cases in which Layton testified, said Christy, the county's assistant district attorney. Those attorneys have the option of reopening the case or requesting that blood samples be retested, he said. At least one defense attorney has asked that a case be reopened, and Christy said he expects more such requests.

Christy said his office was not legally compelled to notify all defense attorneys whose cases involved Layton's work, and only would notify them if court-ordered.

He said Layton has not admitted to making up results, only skipping confirmatory tests. "I don't want to defend the conduct in any way, but I want to put it in context," Christy said.

But officials with the Riverside County's public defender's office said that in at least one case, retesting of Layton's work has produced different results.

Voss, the county's supervising public defender, said that in a recent DUI case, the initial lab work conducted by Layton in May 2008 indicated the defendant had a blood-alcohol level of 0.08 percent. A driver with that concentration of alcohol in their blood is considered legally impaired in California.

She said that when the sample was retested by Utica Toxicology a few months later, it came back as 0.06, an acceptable blood-alcohol level while driving.

Retested a third time by Bio-Tox in February, the 0.06 results were confirmed, she said.

"When they say they have done 500 retests that have come back within acceptable limits, I can say with certainty that at least one is unacceptable," Voss said. "What does it say about the other 499?"

Bio-Tox's Stangarone said alcohol is a volatile substance, and repeated exposure to air, which can occur when collection tubes are opened, may lead to minor changes in the results.

"Varying factors exist with regard to evaporation, exposure to air, the amount of head space in the collection tube, and storage of the sample," she said. "There are going to be slight varia