December 30, 2007

SAN DIEGO DUI DEFENSE LAWYER NEWS: FIND A DESIGNATED DRIVER FOR NEW YEAR'S EVE

SAN DIEGO DUI DEFENSE LAWYER NEWS:

By Steven Mihailovich
TODAY'S LOCAL NEWS

December 30, 2007

Welcoming the new year is a time-honored tradition around the world, replete with parties and innumerable toasts. It is also a time of increased police patrols, DUI checkpoints, automobile crashes and fatalities.

North County residents planning a New Year's night on the town will find plenty of transportation options but few programs designed to help unprepared intoxicated drivers. If you plan on drinking and don't have a designated driver, finding alternative transportation is imperative, police say.

“The time to look for an alternative is before, not when you're already at the party having a couple of drinks,” Escondido police Lt. Robert Benton said. “DUI is always a priority around the holidays, and we step up our efforts. We will have officers whose full-time assignment will be to look for DUI drivers.”

So what is actually available? Click on this link to read more fromthe UT.

To learn tips from a San Diego DUI Lawyer on how to avoid a DUI, click HERE.

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Continue reading "SAN DIEGO DUI DEFENSE LAWYER NEWS: FIND A DESIGNATED DRIVER FOR NEW YEAR'S EVE" »

December 30, 2007

CRACK SENTENCES BEING CHALLENGED AFTER U.S. SUPREME COURT RULING

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS:

By Richard B. Schmitt and David G. Savage, Los Angeles Times Staff Writers

December 30, 2007

WASHINGTON -- In the spring of 1986, lawmakers had become alarmed by reports of urban crime waves linked to crack, then a new and highly addictive form of cocaine. News reports were full of images of writhing "crack babies" deeply addicted to the drug through their mothers, doomed to "a life of certain suffering, of probable deviance, of permanent inferiority," as one columnist observed.

The sudden death that June of basketball star Len Bias galvanized Washington into passing extraordinarily strict drug laws. Selling as little as 5 grams of crack would bring a mandatory five-year federal prison term, with no possibility of parole.

Now those laws are being questioned, and in some cases relaxed, in the face of evidence that some predictions about the ravages of crack were overblown -- and that the harsh penalties were ineffective.

This month, the U.S. Sentencing Commission voted unanimously to reduce the prison terms of as many as 19,500 federal inmates convicted of crack-related crimes. The decision, which came a day after the U.S. Supreme Court gave federal judges discretion to deviate from strict drug sentencing guidelines, marked a milestone in the two-decade debate over the drug.

Click here for the entire Los Angeles Times article.

Continue reading "CRACK SENTENCES BEING CHALLENGED AFTER U.S. SUPREME COURT RULING" »

December 29, 2007

CALIFORNIA DUI LAWYER NEWS: LINK TO ALCOHOL/DRUG REACTIONS

SAN DIEGO DUI LAWYER NEWS:

Click on this link to research what drugs interact with ethyl alcohol and what symptoms you can expect to see.

For tips in how to avoid a San Diego DUI this holiday season, click this link: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for answers to frequently asked DUI questions, click here: http://www.acrimedefenseattorney.com/pages/dui.html

Continue reading "CALIFORNIA DUI LAWYER NEWS: LINK TO ALCOHOL/DRUG REACTIONS " »

December 29, 2007

SAN DIEGO DUI DEFENSE NEWS: DUI CHECKPOINTS IN SANTEE AND SAN MARCOS THIS WEEKEND

SAN DIEGO DUI DEFENSE NEWS: DUI checkpoints this weekend

More San Diego police will be on the lookout for drivers under the influence (DUI) this weekend as authorities expect more drunken drivers on the roads ahead of New Year's Eve.

The San Diego Sheriff's Department announced it will conduct a DUI checkpoint tonight from 8 p.m. to 2 a.m. in Santee.

In San Marcos, a DUI checkpoint will take place Saturday and Sunday from 7:30 p.m. to 1 a.m. somewhere in the city.

The San Diego Sheriff's Department also announced it will not release anyone from jail who is arrested in connection with driving under the influence until the first court appearence, set for next week, or unless bail is posted.

For tips in how to avoid a San Diego DUI this holiday season, click this link: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for answers to frequently asked DUI questions, click here: http://www.acrimedefenseattorney.com/pages/dui.html

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San Diego DUI Defense, Chula Vista DUI Defense, Vista DUI Defense, El Cajon DUI Defense, Imperial County DUI Defense, El Centro DUI Defense, Orange County DUI Defense, Riverside DUI Defense, San Bernardino DUI Defense, Los Angeles DUI Defense, San Diego DUI Defense Attorney, San DIego DUI Defense Lawyer, California DUI Defense, Murrieta DUI Defense, Temecula DUI Defense, Riverside DUI Defense, Chula Vista DUI Defense, El Cajon DUI Defense, Vista DUI Defense, Temecula DUI Defense, Brawley DUI Defense, El Centro DUI Defense

Continue reading "SAN DIEGO DUI DEFENSE NEWS: DUI CHECKPOINTS IN SANTEE AND SAN MARCOS THIS WEEKEND" »

December 29, 2007

SAN DIEGO DUI NEWS: BALBOA PARK MAY BAN ALCOHOL

SAN DIEGO DUI DEFENSE LAWYER NEWS

San Diego Balboa Park officials want to tighten the outdoor booze policy in the city's crown jewel, hoping to give police an additional tool to combat chronic drinkers who hang out there.

“We know that we have people who picnic, and we didn't want to preclude what we know is cultural for Balboa Park and isn't a problem,” said Vicki Granowitz, chairwoman of the Balboa Park Committee. “But we need to devise something that would be easier to (use) for the police and our park rangers.”

The result is a map of nine lawns in the park's central area where alcohol would still be allowed. Visitors could drink a beer or sip a cocktail there, but only during a restricted time frame.

Public drinking is now allowed from 8 a.m. to 8 p.m. anywhere in the central part of the park. The proposal, to be voted on Thursday by the Balboa Park Committee, would restrict outdoor drinking to between noon and 8 p.m. in nine grassy picnic areas that are easily monitored by park rangers.

Restaurants and park institutions would not be affected.

December 28, 2007

CALIFORNIA DUI DEFENSE LAWYER NEWS-CHP TO TARGET DUI DRIVER'S WITH NEW GRANT

california dui dfense lawyer news:

Sacramento, CA 95818
FOR IMMEDIATE RELEASE - December 28, 2007 07-67

CHP STATEWIDE DUI ENFORCEMENT PROGRAM

The California Highway Patrol (CHP) has secured a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration entitled, “Statewide Enforcement and Education Operations Targeting DUI (STOP DUI) II.” This grant will provide funding for DUI enforcement in an effort to remove impaired drivers from California’s roadways. CHP personnel will be deployed on an overtime basis with the mission of apprehending impaired drivers. In addition to enforcing DUI laws, officers will also enforce all other traffic safety laws such as, speeding, unsafe passing, and occupant restraint violations.

Utilizing project-funded overtime, the CHP will conduct a minimum of 100 sobriety/driver license checkpoints, 65 DUI task force operations and deploy DUI roving enforcement patrol operations statewide. The enforcement activities will be conducted between January 1, 2008, and December 31, 2008.

Continue reading "CALIFORNIA DUI DEFENSE LAWYER NEWS-CHP TO TARGET DUI DRIVER'S WITH NEW GRANT" »

December 28, 2007

FORT WORTH DUI COPS WILL GET SEARCH WARRANTS TO TAKE BLOOD ON NEW YEAR'S EVE

CALIFORNIA DUI DEFENSE LAWYER NEWS

FORT WORTH -- Fort Worth motorists who get pulled over on New Year's Eve and think they can beat a drunken driving conviction by refusing a breath test had better think again. Fort Worth police are going to get a search warrant and take your blood.

For the first time, Fort Worth police are launching a "No Refusal DWI" campaign in an effort to combat drunken driving on New Year's Eve and New Year's Day. And they certainly aren't being secret about their intentions.

In a press conference Friday morning, Fort Worth Police Chief Ralph Mendoza, along with officials from the Tarrant County District Attorneyʼs Office, Dalworthington Gardens and Mothers against Drunk Driving, warned motorists not to get behind the wheel if they have imbibed.

"If you refuse to take that blood test, we are going to ask for a warrant from a magistrate and come back and take your blood," Mendoza said. "Basically, we are going to get our evidence one way or the other."

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Continue reading "FORT WORTH DUI COPS WILL GET SEARCH WARRANTS TO TAKE BLOOD ON NEW YEAR'S EVE" »

December 28, 2007

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS: ELECTRONIC MONITORING DOES NOT TAKE THE PLACE OF CUSTODY

In case where defendant was released on bail but subject to electronic monitoring and other restrictions as conditions of her release, award of 434 days of presentence custody credit for the time she was released is reversed as the trial court erred in giving her the credits

People v. Anaya, No. B195866

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December 27, 2007

CALIFORNIA COURT OF APPEAL REVERSES CALIFORNIA MURDER CONVICTION

People v. Le (2007) , Cal.App.4th
[No. H030808. Sixth Dist. Dec. 27, 2007.]

A jury found appellant guilty of the second-degree murder of his wife's lover and also found true an allegation that he had personally used a deadly weapon. (Pen. Code §§ 187, 12022, subd. (b).)

The trial court sentenced him to a state prison term of 15 years to life. Appellant contended, "The trial court erred in instructing under CALCRIM No. 917 that mere 'words' cannot establish a defense to battery, and in permitting the prosecutor to argue to the jury, over objection, that 'words' cannot legally constitute 'provocation' to reduce a homicide to manslaughter."

Appellant further contended that the prosecutor committed misconduct during closing argument and that the trial court erred in responding to a jury question.

The Court of Appeal reversed.

December 27, 2007

NINTH CIRCUIT COURT OF APPEAL STAMPS OUT LAWSUIT FILED BY ROGUE LOS ANGELES SHERIFF'S DEPARTMENT DEPUTIES AGAINST SUPERVISORS

This case truly belongs in the "You've Got To Be Kidding" category. Here goes...

FACTS:

A bunch of Los Angeles Sheriff's Deputies sued Sheriff Leroy Baca and a bunch of supervisors for violations of their Fourth, Fifth and Fourteenth Amendment rights.

The deputies claimed they were improperly detained at the station house and later punished through involuntary shift transfers after refusing to give non-privileged statements in connection with an IA investigation of their own police brutailty. They say this behavior by their supervisors "shocked the conscience" and they should be compensated pursuant to the federal civil rights statutes.

So, here's how it goes....A citizen (maybe a suspect) ends up in the hospital with head and back injuries due to batons, or maybe flashlights, or maybe some other hard objects employed only by cops, landing on his head and back over and over and over again. Don't tase me bro. The victim of these blows was a bystander during the execution of a search warrant.

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Continue reading "NINTH CIRCUIT COURT OF APPEAL STAMPS OUT LAWSUIT FILED BY ROGUE LOS ANGELES SHERIFF'S DEPARTMENT DEPUTIES AGAINST SUPERVISORS" »

December 27, 2007

CHP DUI ENFORCEMENT PROGRAM SECURES GRANT FOR CALIFORNIA DUI INVESTIGATIONS, CALIFORNIA DUI ROADBLOCKS AND CALIFORNIA DUI ROVING PATROLS

CALIFORNIA DUI DEFENSE LAWYER NEWS

CALIFORNIA CHP DUI PRESS RELEASE:

CHP STATEWIDE DUI ENFORCEMENT PROGRAM

The California Highway Patrol (CHP) has secured a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration entitled, “Statewide Enforcement and Education Operations Targeting DUI (STOP DUI) II.”

This grant will provide funding for California DUI enforcement in an effort to remove impaired drivers from California’s roadways. CHP personnel will be deployed on an overtime basis with the mission of apprehending impaired drivers. In addition to enforcing DUI laws, officers will also enforce all other traffic safety laws such as, speeding, unsafe passing, and occupant restraint violations.

Utilizing project-funded overtime, the CHP will conduct a minimum of 100 sobriety/driver license checkpoints, 65 DUI task force operations and deploy DUI roving enforcement patrol operations statewide. The enforcement activities will be conducted between January 1, 2008, and December 31, 2008.

Continue reading "CHP DUI ENFORCEMENT PROGRAM SECURES GRANT FOR CALIFORNIA DUI INVESTIGATIONS, CALIFORNIA DUI ROADBLOCKS AND CALIFORNIA DUI ROVING PATROLS" »

December 27, 2007

SAN DIEGO DUI DEFENSE NEWS: LAW ENFORCEMENT ARRESTS MORE DUI DRIVER'S THIS SEASON AND EXPECTS MORE

SAN DIEGO DUI DEFENSE NEWS:
So far this holiday season, more drivers havebeen arrested on suspicions of drunk driving. From Dec. 21 to Christmas Day, California Highway Patrol officers made 118 arrests for driving under the influence in San Diego County, compared with 106 arrests last year. Statewide, they made 1,661 arrests, up from 1,351 last year.

At least 80 percent of available Highway Patrol officers will be on duty during the four-day New Year's holiday, Maas said. On New Year's Eve, at least 20 CHP officers will be on San Diego roads, while at least 33 will be roaming the rest of the county.

They will be assisted by beefed-up patrols and checkpoints by sheriff's deputies and police departments.

In addition, the San Diego Sheriff's Department has suspended its quick-release program for DUI offenders. Drivers charged with misdemeanor driving under the influence must post a $2,500 bail ---- or sit in the county jail until their arraignment on Wednesday.

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December 27, 2007

PLAINTIFF CANNOT BRING CICIL RIGHTS CASE IN FEDERAL COURT SOLELY ON FOURTH AMENDMENT ISSUES

Where plaintiff did not allege a § 1983 violation and proceeded directly under the Fourth and Sixth Amendment, the case could not be removed to federal court because there is no claim directly under the Fourth Amendment cognizable in federal court.

Phillips v. Sacramento County, 2007 U.S. Dist. LEXIS 94489 (E.D. Cal. December 27, 2007).*

December 26, 2007

CUFFED & BEATEN DEFENDANT STATES CIVIL RIGHTS CLAIM

In Brooks v. Neb. DMV, 2007 U.S. Dist. LEXIS 94168 (D. Neb. December 26, 2007), "Plaintiff here alleges that Defendant Bell pulled his gun out and yelled profanities at Plaintiff during his arrest.

Liberally construed, Plaintiff alleges that Defendant Bell knocked him to the ground after he was already handcuffed and cooperating. (Filing No. 1 at CM/ECF p. 3.) Plaintiff has set forth enough facts to nudge his claims against Defendant Bell across the line from conceivable to plausible.

As a result, Plaintiff's claims against Defendant Bell may proceed." The claim against the DMV is dismissed under the Eleventh Amendment.


December 26, 2007

SAN FRANCSICO ATTORNEY AWARDED $1 MILLION IN ATTORNEY FEES IN SUCCESSFUL SAN FRANCISCO CIVIL RIGHTS DISCRIMINATION SUIT

The city of San Francisco must pay about $1 million in attorneys' fees to a white man who filed a successful race-discrimination suit after he was passed up for a promotion at San Francisco International Airport, a state appeals court ruled Friday.

Allen Harmon won $30,300 in damages in a 2004 verdict by a San Mateo County jury that concluded he was rejected for a supervisor's job in 1998 at least in part because of his race. A minority candidate got the promotion, and Harmon's lawyer said he had to wait 16 months to get the same job through a race-neutral civil service promotion.

Harmon's suit, filed by the Pacific Legal Foundation, claimed that the city had designed hiring and promotional policies at the airport to reflect the Bay Area's racial and ethnic makeup. The city denied having racial quotas or bias, saying most of the promotions awarded at the time went to white men, but later changed the policy that Harmon had challenged.

State and federal law entitled Harmon to legal fees for a successful civil rights suit against a government agency, and he was awarded more than $1.1 million by Superior Court Judge Thomas Smith.

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City lawyers argued that the fee was far too high, noting that Harmon had originally sought $600,000 in damages and had been awarded only a small fraction of that amount. But the First District Court of Appeal upheld most of the fee Friday, ordering a reduction only for sums spent litigating one issue that was decided in the city's favor.

While the fee may seem excessive in a suit that was only partially successful, the court said, the trial judge examined it thoroughly and concluded that Harmon had succeeded in vindicating "important public interests" in a neutral promotional policy.

Continue reading "SAN FRANCSICO ATTORNEY AWARDED $1 MILLION IN ATTORNEY FEES IN SUCCESSFUL SAN FRANCISCO CIVIL RIGHTS DISCRIMINATION SUIT" »

December 26, 2007

RIVERSIDE DUI DEFENSE LAWYER NEWS-RIVERSIDE DUI ARRESTS UP SLIGHTLY OVER CXHRISTMAS HOLIDAY

RIVRSIDE DUI DEFENSE NEWS:

The number of motorists arrested for alleged drunken driving in the Riverside area over the Christmas holiday increased slightly compared to last year.

The CHP reported that 42 motorists were arrested for suspicion of DUI on roads and highways around Riverside during the highway patrol's “maximum enforcement period,” between 6 p.m. Friday and midnight Tuesday. The maximum enforcement period was a day longer than last year, when 39 people were arrested.

For tips in how to avoid a DUI this holiday season, click this link: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for answers to frequently asked DUI questions, click here: http://www.acrimedefenseattorney.com/pages/dui.html

December 25, 2007

EL CENTRO DUI DEFENSE NEWS-ONLY TEN IMPERIAL COUNTY DUI ARRESTS IN CHRISTMAS

EL CENTRO DUI NEWS

Imperial County DUI cops are getting aggressive over the Christmas holidays. Imperal County law enforcement are participating in the ‘Avoid the 10 Imperial County’ D U I campaign, as part of California’s holiday DUI crackdown.

Only ten Imperial County DUI drivers were arrested on Christmas day.

For tips in how to avoid a San Diego DUI this holiday season, click this link: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for answers to frequently asked DUI questions, click here: http://www.acrimedefenseattorney.com/pages/dui.html

December 25, 2007

ALABAMA GOVERNOR WON'T ORDER DNA TESTS IN DEATH PENALTY CASES:POTENTIALLY INNOCENT MEN MAY BE PUT TO DEATH

With DNA being generally accepted in the scientific community, and the rash of innocent death row inmates being exonnerated by it, there is simply no reason to refuse to order DNA tests in old death penalty cases where individuals' lives are at stake.

But that's not the case. We have to start questioning those in power who prevent the release of innocent people facing death. See below:

Thursday, six men not from Georgia - all of them sentenced to death and then u>exonerated by DNA testing - asked Gov. Bob Riley to order testing of evidence in the case of Alabama Death Row inmate Thomas Arthur.

"Prosecutors, judges or governors rejected our initial pleas for DNA testing," the men said in a letter. "Each of us sat on Death Row, wondering whether the truth would come out before we were executed. And each of us was spared when the irrefutable science of DNA proved that we were innocent."

Click on the link to read the entire story. http://www.al.com/opinion/birminghamnews/index.ssf?/base/opinion/1198487709279010.xml&coll=2

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December 25, 2007

NORTH COUNTY DUI: RINCON FIRE CHIEF ARRESTED FOR SAN DIEGO DUI PLACED ON ADMINISTRATIVE LEAVE

SAN DIEGO DUI DEFENSE NEWS

NORTH COUNTY: The Rincon tribal government has placed its part-time fire chief on administrative leave after his Dec. 17 arrest on suspicion of drunken driving while taking his children to school in a department vehicle.

Nobody was seriously injured when Gerad Rodriguez, 47, flipped his sport utility vehicle on state Route 76 near Pauma Valley Road.

The California Highway Patrol said he was driving with more than 0.08 percent of alcohol in his blood.

Rodriguez is free on $12,500 bail pending arraignment Jan. 28. The District Attorney's Office is reviewing the case and has not filed charges.

“The tribal council is not willing to rush to any judgment until we have had time to consider all of the facts,” Rincon Chairman Vernon Wright said in a statement. Rodriguez, whose full-time job is with the San Diego Fire-Rescue Department, is still employed there, spokesman Maurice Luque said.

“We haven't suspended him,” he said, though he couldn't say whether Rodriguez has taken a voluntary leave.

December 24, 2007

SAN DIEGO DUI DEFENSE LAWYER GIVES TIPS TO AVOID A SAN DIEGO DUI ARREST THIS CHRISTMAS

Click on the URL below for tips from San Diego DUI Defense Lawyer Mary Frances Prevost on how to avoid being arrested for suspicion of drunk driving this Christmas.

http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for more San Diego DUI Defense Lawyer questions and answers, please click on the URL and you wll be transported to my website for more valuable information: http://www.acrimedefenseattorney.com/pages/dui.html

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Continue reading "SAN DIEGO DUI DEFENSE LAWYER GIVES TIPS TO AVOID A SAN DIEGO DUI ARREST THIS CHRISTMAS" »

December 24, 2007

HAWAII COURT EVICERATES "REASONABLE SUSPICION" AND REPLACES IT WITH GUESSWORK IN DRIVING CASES

SAN DIEGO DUI DEFENSE ATTORNEY NEWS:

Now here is another one for the "You've Got To Be Kidding" pile.

Hawai'i decides a Hawaii search and seizure case in favor of the cop where the cop had reason based on the timing of defendant's reapparence on the streets after a prior arrest for driving without a license. Thank goodness there was a dissent to this madness.

State v. Spillner, 2007 Haw. LEXIS 376 (December 24, 2007):

Spillner challenged the cop's conclusion. He contends that, regardless of how close in time prior criminal activity is with current activity of a similar nature, the prior activity cannot be a factor in the analysis of reasonable suspicion and that an officer's prior knowledge of past violations, standing alone, can never, as a matter of law, authorize a traffic stop predicated solely upon the officer's suspicion that a driver is committing the offenses of driving without a license or driving without adequate insurance.

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The court goes on to say:

"This absolutist proposition is demonstrably flawed. Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers that the driver is not merely without his or her license but is, in fact, unlicensed to drive in the jurisdiction. Upon encountering the same individual later the same evening, once again driving -- at a time during which the license-issuing authority has not yet reopened -- the officer would have more than reasonable suspicion to effect a second brief traffic stop of the driver to investigate whether he or she is driving without a license. Reasonable suspicion can, therefore, be established that the defendant has fixedly refused to cease prior criminal behavior, personally observed by the officer, absent other observed violations of the traffic or safety codes."

Continue reading "HAWAII COURT EVICERATES "REASONABLE SUSPICION" AND REPLACES IT WITH GUESSWORK IN DRIVING CASES" »

December 23, 2007

POWAY DUI DRIVER'S BEWARE-POWAY DUI CHECKPOINT TO BE SET UP

POWAY -- Sheriff's deputies will conduct a driver's license and Poway DUI checkpoint Friday, then sweep the city for suspected DUI drivers.

Fifteen deputies will man the checkpoint on westbound Scripps Poway Parkway, just east of Pomerado Road, from 10 a.m. to 3 p.m. They'll be looking for seat-belt violations and unlicensed drivers, a department statement said.

From 8 p.m. Friday until 2:30 a.m. Dec. 29, eight extra deputies will patrol the city with their sights set on suspected DUI drivers, the department said.

For tips from a San Diego DUI Defense Lawyer on how to avoid a DUI, click on:
http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And click on the link below for answers to your frequently asked California DUI questions:
http://www.acrimedefenseattorney.com/pages/dui.html

December 23, 2007

FIVE ESCONDIDO DUI DRIVER'S ARRESTED AT ESCONDIDO DUI CHECKPOINT

SAN DIEGO DUI DEFENSE NEWS

ESCONDIDO ---- Police arrested five drivers on suspicion of driving under the influence of alcohol (DUI) Friday night at a checkpoint at the intersection of Lincoln Avenue and Fig Street, according to police.

Police also confiscated 55 vehicles because their drivers reportedly did not have a valid driver's license, and one driver was arrested on suspicion of auto theft, authorities said.

The Escondido DUI checkpoint was set up from 6:30 p.m. Friday until 2:30 a.m. Saturday.

The Escondido Police Department said 82 citations were issued at the checkpoint, designed to detect intoxicated and unlicensed drivers and provide a highly visible operation to deter people from driving under the influence of alcohol.

For answers to frequently asked San Diego DUI questions, click on this link:
http://http://www.acrimedefenseattorney.com/pages/dui.html

December 23, 2007

BIG BROTHER IS WATCHING:FEDS ARE CREATING WORLD'S LARGEST BIOMETRICS DATABASE

BIG BROTHER IS WATCHING. THE WASHINGTON POST REPORTS THE FBI IS BUILDING A WORLD'S LARGEST BIOMETRIC COMPUTER DATABASE

Yesterday's Washington Post REPORTS:

CLARKSBURG, W. Va. -- The FBI is embarking on a $1 billion effort to build the world's largest computer database of peoples' physical characteristics, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad.

Digital images of faces, fingerprints and palm patterns are already flowing into FBI systems in a climate-controlled, secure basement here. Next month, the FBI intends to award a 10-year contract that would significantly expand the amount and kinds of biometric information it receives. And in the coming years, law enforcement authorities around the world will be able to rely on iris patterns, face-shape data, scars and perhaps even the unique ways people walk and talk, to solve crimes and identify criminals and terrorists. The FBI will also retain, upon request by employers, the fingerprints of employees who have undergone criminal background checks so the employers can be notified if employees have brushes with the law.

"Bigger. Faster. Better. That's the bottom line," said Thomas E. Bush III, assistant director of the FBI's Criminal Justice Information Services Division, which operates the database from its headquarters in the Appalachian foothills.

The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny. It is drawing criticism from those who worry that people's bodies will become de facto national identification cards. Critics say that such government initiatives should not proceed without proof that the technology really can pick a criminal out of a crowd.

Check out the Huffington Post for blog diaolgue in this controversial issue.

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December 22, 2007

SAN DIEGO DISTRICT ATTORNEY CONTINUES INVESTIGATION OF VISTA DUI MURDER CASE

SAN DIEGO DUI DEFENSE:

A 24-year-old man suspected of driving under the influence of drugs and alcohol and killing two North County couples in a crash on state Route 76 pleaded not guilty to possession of a controlled substance yesterday.

Although California Highway Patrol officials said they believe Anthony James Boles was under the influence of methamphetamine and alcohol at the time of the crash Dec. 14, he has not yet been charged with any crimes related to it because it is still being investigated, Deputy District Attorney Brenda Daly said.

The hearing in Vista Superior Court dealt only with a drug-possession charge stemming from methamphetamine that investigators said was found in Boles' sock after the collision.

Because Boles is being held without bail on a probation violation, authorities said, there is time to wait until the crash investigation is finished before any additional charges are filed.

Continue reading "SAN DIEGO DISTRICT ATTORNEY CONTINUES INVESTIGATION OF VISTA DUI MURDER CASE " »

December 21, 2007

PRISONER ABUSE CASE REVERSED

A prisoner stated a § 1983 civil rights claim won a rare appeal this month in a prison abuse case. The Fifth CIrcuit Court of Appeal held that Hutchins pleaded facts sufficient to survive dismissal under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A(b).

Hutchins alleged that prison guards - both male and famale guards - made him submit to a baseless prison body cavity search.

The case was dismissed by the District Court, but the Court of Appeal reversed stating Hutchins can attempt to prove nominal and punitive damages.

Hutchins v. McDaniels, 2007 U.S. App. LEXIS 29755 (5th Cir. December 21, 2007).

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December 21, 2007

CALIFORNIA MEDICAL MARIJUANA CONVICTION REVERSED:COP DIDN'T HAVE EXPERTISE FOR HIS OPINION

CALIFORNIA CRIMINAL DEFENSE LAWYER NEWSPeople v. Chakos, No. G037004

In this case where the defendant had a formal certificate from his doctor for lawful marijuana consumption under the Compassionate Use Act which allowed him to possess up to eight ounces of marijuana, his conviction for possessing six ounces of marijuana for sale was reversed.

The court held that the record lacked any substantial evidence that the arresting officer had any expertise in differentiating citizens who possess marijuana lawfully for their own consumption, as distinct from possessing unlawfully with intent to sell.

Here are some quotes for future cases to use when your cop claims to be an expert and, in fact, isn't:

"Indeed, Cormier's lack of expertise in distinguishing lawful from unlawful possession is revealed in some of his own testimony. He laid great stress on the fact that about a quarter ounce of marijuana was found in Chakos' backpack when he was arrested. And, of course, intuitively, such a precise amount would seem consistent with drug dealing, since it represents ease of packaging: take an ounce, divide by half, divide each of those halves by half. (Hence Cormier's reference in his testimony to "amounts consistent with pricing, quarters, eighths.")"

"But what are we to make of Cormier's percipient testimony that Chakos was found to have irregular amounts found in his closet? Merely taking Deputy Cormier's own testimony at face value, a reasonable trier of fact might infer that the irregular amounts of marijuana were inconsistent with dealing and were consistent with lawful use under the Compassionate Use Act. Such an inference also seems intuitive because, while marijuana may be lawfully possessed under the Compassionate Use Act, it is not exactly easily obtainable in open, licit circumstances (as would the pharmaceuticals in Dross in the normal context where they would be distributed lawfully)."

Continue reading "CALIFORNIA MEDICAL MARIJUANA CONVICTION REVERSED:COP DIDN'T HAVE EXPERTISE FOR HIS OPINION" »

December 21, 2007

HEARSAY ADMISSIBLE AT CALIFORNIA PROBATION REVOCATION PROCEEDINGS

People v. Abrams, No. B194835

The Defendant's prison sentence imposed following probation revocation proceedings on a charge of petty theft with prior convictions is affirmed. The issue in this case was whether or not information that the defendant has reported to his probation officer or made monetary payments to the officer are essentially non-testimonial. The court held that even if the statements are hearsay, they are admissible at a probation violation hearing.

December 20, 2007

CHULA VISTA DUI CHECKPOINTS THIS WEEKEND-BEWARE

CHULA VISTA DUI DEFNESE LAWYER NEWS

The Chula Vista Police Department Targets Chula Vista DUI Drivers.

The Chula Vista Police Department will be conducting DUI/Drivers License checkpoints on Friday, 12/21/07 and Saturday, 12/22/07 from 7:00p.m. to 3:00a.m.

For tips from a Chula Vista DUI Defense Lawyer on how to avoid a DUI, click on the following link: http://http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

For answers to your most frequently aksed San Diego DUI Defense questions, click here:
http://www.acrimedefenseattorney.com/pages/dui.html

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December 20, 2007

VISTA DUI DEFENDANT PLEADS NOT GUILTY TO DRUG POSSESSION

VISTA ---- A parolee suspected of driving drunk on drugs when he crashed into a sedan and killed four people a week ago hobbled into a Vista, California courtroom Friday and pleaded not guilty to a charge of drug possession.

Authorities have said they suspect Anthony James Boles, 24, was drunk and on methamphetamine late Dec. 14 when the sport utility vehicle he was driving on Route 76 east of Pala crossed the center line. His vehicle slammed head-on into a 2005 Toyota Camry carrying two married couples.

Boles wasn't supposed to be behind the wheel; his license was suspended after a previous conviction for driving under the influence, according to the California Highway Patrol.

Prosecutors are considering which charges they may bring against Boles for the deaths of Luis Baez, 51, and his wife Rubi Baez, 46, both of Vista, and Escondido couple Jesus Desantiago, 45, and Lina Desantiago, 46.

For now, Boles has been charged with a sole count of drug possession. Methamphetamine was found in one of Boles' socks after the crash, a CHP spokesman said.

Judge Martin Staven set Boles' bail at $25,000 for the drug charge Friday. But if Boles were able to post bond, he would remain jailed for violating his parole.

For tips in how to avoid a San Diego DUI this holiday season, click this link: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for answers to frequently asked DUI questions, click here: http://www.acrimedefenseattorney.com/pages/dui.html

December 20, 2007

CHULA VISTA DUI SUSPECTS WON'T GET O.R. RELEASE FOR CHRISTMAS

CHULA VISTA SUSPENDS O.R. RELEASE OF CHULA VISTA DUI SUSPECTS OVER HOLIDAYS

To support San Diego County's efforts to deter its residents and visitors from driving while intoxicated, the police department will temporarily suspend the O.R. release of arrestees booked on the charge of 23152 VC, (misdemeanor DUI); this change will be in effect from Friday, December 21, 2007 at 1700 hours through Wednesday, January 2, 2008 at 0600 hours, (to coincide with that of the Sheriff's Department). During this time period, all persons arrested for 23152 VC will be required to post bail or await arraignment prior to being released from custody.

December 19, 2007

NINTH CIRCUIT SAYS RELIGIOUSLY CONFUSED MAN CAN CONSCIENTIOUSLY OBJECT TO DNA TEST ON RELIGIOUS GROUNDS

United States v. Gregory Michael Zimmerman, __ F.3d __, 2007 WL 4394421 (9th Cir. Dec. 18, 2007).

Defendant Gregory Zimmerman pleaded guilty in a false ID cases. As a result, he wa sordered to provie a DNA sample. Though he has a Jewish name, Zimmerman was raised Roman Catholic. He also studied other religions, such as Buddhism. Based on his religious beliefs, he objected to letting the Feds draw blood for DNA. The district court didn’t buy it, noting that Roman Catholics have no objection to having blood drawn.

Issue(s): “We consider whether compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act (RFRA).”

Held: “Without determining the precise scope of Zimmerman’s beliefs, the district court held that his beliefs weren’t religious . . . This was error.” Id. at *1. “While this may not be a mainstream religious belief or common interpretation of the Bible, Zimmerman’s belief that he can’t give a blood sample is based on his connection with god, not purely on secular philosophical concerns . . . As a result, the district court erred in holding that Zimmerman’s refusal to give a blood sample wasn’t based on a religious belief.” Id. at *2.

Of Note: The RFRA doesn’t require that a belief be central to a mainstream religion – the Act protects religious exercise “whether or not compelled by, or central to, a system of religious belief.” Id. at *1.

December 18, 2007

SAN DIEGO DUI SUSPECT IS RINCON BAND FIRE CHIEF

PAUMA -- The Rincon Band fire chief was arrested Monday morning and charged with misdemeanor drunken driving and child cruelty, Officer Eric Newbury of the California Highway Patrol said.

Gerad F. Rodriguez, 47, was stopped by a Highway Patrol officer on Highway 76 just east of Pauma Valley Drive at 8:50 a.m. Monday, Newbury said. A field sobriety test confirmed he had a blood-alcohol level above the .08 legal limit, Newbury said. He declined to release the exact number.

Rodriguez was driving a sport-utility vehicle owned by the Fire Department and is believed to have been driving with at least one child in the vehicle, said a source close to the investigation who requested anonymity.

For tips in how to avoid a San Diego DUI this holiday season, click this link: http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

And for answers to frequently asked DUI questions, click here: http://www.acrimedefenseattorney.com/pages/dui.html

December 18, 2007

VAGUE THREAT TO KIDS IS "FALSE IMPRISONMENT BY MENACE"

Telling young children that if they did not comply "I will do something" constituted evidence of implied threat to harm them. There was ample evidence of menace to support the convictions for felony false imprisonment."

People v. Aispuro (C.A. 5th, 12/18/07) F052506, 07 C.D.O.S. 14435

December 18, 2007

POLICE OFFICER'S REASONS FOR STOP HELD "INCREDIBLE"

An offficer's testimony that he smelled burnt marijuana when he stopped the defendants, and could also read the label of a prescription bottle from outside the car was found just not credible. Nothing corroborated it at all. United States v. Shields, 2007 U.S. Dist. LEXIS 92929 (W.D. Tenn. December 18, 2007):

The Government asserted that probable cause to arrest the Defendants and, therefore, to search their persons, existed at the time the officer detected the marijuana smell coming out of the window and when he observed the prescription bottle bearing the name of another.

However, the Court found the officer's testimony with respect to the marijuana smell and the identification on the prescription bottle in Shields' lap was not credible. It is uncontroverted that there was no objective evidence, such as rolling papers, roach clips or blunts, to indicate that Defendants had been smoking marijuana in the vehicle. Nor was there any evidence presented at the hearing to suggest that a small amount of marijuana in a sandwich bag hidden in a pants pocket, or a few small stems and seeds, would exude sufficient odor to cause the "quick gush" of the smell described by the officer to emanate from the two-inch crack in the window. See United States v. Mercadel, 75 F.App'x 983 at *5 (5th Cir. 2003) (failure of police to find any evidence of recently smoked marijuana supported court's conclusion that officer's testimony that he smelled marijuana was not credible).

December 17, 2007

CALIFORNIA CRIMINAL COURTS CAN STRIKE DEADLY WEAPON ENHANCEMENT

The trial court incorrectly concluded it did not have power to strike the deadly weapon enhancement charged under Penal Code section 12022, subdivision (b)(1).

People v. Jones (C.A. 2nd, 12/17/07) B193759, 07 C.D.O.S. 14320

December 17, 2007

NINTH CIRCUIT REJECTS DEFENDANT'S REQUEST TO SEAL COURTROOM FOR ALLOCUTION

The Defendant's allocution rights not violated by court's refusal to close courtroom for sentencing. Counsel did not make the proper request, which was to allow the defendant to speak in camera under Federal Rule 32(i)(4)(C). The motion to close entire courtroom was not properly made and the appeal was denied.

United States v. Biagon (9th Cir. 12/17/07) 06-10479, 07 C.D.O.S. 14311

December 17, 2007

CHULA VISTA DUI SATURATION PATROL RESULTS

Chula Vista DUI Saturation Patrol results - 12/17/07

Chula Vista- Officers from the Chula Vista Police Department conducted a "Zero Tolerance" DUI Saturation Patrol on Saturday December 15, 2007 in Chula Vista from 9 pm to 3 am.

This saturation patrol was in a series of Chula Vista DUI enforcement operations aimed at increasing public awareness and decreasing the number of drivers who drive while under the influence of alcohol and/or drugs.

The operation resulted in four arrests for DUI, seven vehicle impounds, five citations for driving without a valid license, 1 citation for an open alcohol container and/or marijuana in a vehicle, and eleven citations for various vehicle code violations. This was considered a successful saturation patrol. The Chula Vista Police Department Traffic Division is continuing its efforts to keep drivers in our community safe by deterring and detecting impaired drivers.

Funding for this program was provided by a grant from the California Office of Traffic Safety through the National Highway Transportation Safety Administration.

Continue reading "CHULA VISTA DUI SATURATION PATROL RESULTS" »

December 17, 2007

SAN DIEGO DUI "GET OUT OF JAIL FREE" POLICY MOST LIKELY WILL BE SUSPENDED THIS HOLIDAY SEASON

Drivers arrested for a San Diego DUI near Christmas and New Years this year can expect to spend up to three days in jail if they cannot make bail.

But is this legal? No.

Each year near Christmas and New Year's, the San Diego Sheriff's Department revises it's bail policy. Normally, when a driver is arrested for a San Diego DUI, he or she is held for about 12 hours through the booking process and then released after promising to appear in court.

Bail is not to be used to keep someone in jail. It is meant to secure the person's attendance at his court date. Most individuals arrested for misdemeanors are not required to pay bail, or are required to post a very small bail. That's because since a first time DUI almost never warrants jail time, it is likely the person arrested for the San Diego DUI will appear in court to handle it when released on his own recognizance.

Last year the San Diego Sheriff's Department maintained this procedure until January 2.

While surely there will be more San Diego DUI checkpoints and San Diego cops (and CHP) on the road keeping an eye out for impaired drivers, the altering of bail as a means of deterrence is unconstitutional.

For answers to your ost frequently asked San Diego DUI Defense questions, click here:
http://http://www.acrimedefenseattorney.com/pages/dui.html

And for answers on what to do if you are stopped for suspision of a California DUI, click here:
http://www.californiacriminallawyerblog.com/2007/11/what_to_do_when_the_dui_office.html

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December 17, 2007

POLICE OFFICER'S PROMISES NOT TO ARREST IF DEFENDANT CONSENTED AMOUNTED TO COERCION

An Idaho police officer's statement to the defendant that he would not be arrested if he consented coerced consent.

The officer told defendant that if he turned over gun he would not be charged with it amounted to coercion for consent when defendant ended up charged in federal court.

Still later, however, Officer Hemmert stated that he was going to seize the shotgun, write a ticket for drug paraphrenalia, "and then I'll talk to the corporal and see what he wants to do about everything else." This is as close as Officer Hemmert gets to saying that he is not offering immunity for the shotgun and that the ultimate charging decision will be made elsewhere.

The bottom line is that Officer Hemmert's attempt to procure the consent of Pantoja-Ramirez is confusing. Listening to the entire exchange, the court stated a reasonable person could conclude either that Officer Hemmert (1) offered immunity for the shotgun, or (2) offered only to defer charges now, and let someone else make the ultimate charging decision.

Such a "contradictory alternative message" has been held in the Miranda context to be "at best misleading and confusing, and, at worst, ... a subtle temptation to the unsophisticated" defendant to waive a right. See United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989). The police cannot "appear to take away with one hand what they were offering with the other." Id. at 1353 (quoting Emler v. Duckworth, 549 F.Supp. 379, 381 (N.D.Ind.1982)).

These principals apply with equal strength here. Officer Hemmert cannot appear to offer immunity, and then rely on other statements that contradict that offer. A reasonable person in Pantoja-Rameriz's position could have concluded that Officer Hammert offered immunity for the shotgun. The Court must assume that Pantoja-Rameriez's consent was based on that reasonable interpretation. When that promise was broken, the scope of the search exceeded the scope of the consent. Consequently, the Government has not carried its burden of showing that the search did not exceed the scope of the consent, and the motion to suppress must be granted.

United States v. Pantoja-Ramirez, 2007 U.S. Dist. LEXIS 92835 (D. Ida. December 17, 2007):

December 16, 2007

SAN DIEGO DUI DRIVER CRASHES AND DIES

POWAY -- Alcohol is believed to have contributed to a single-vehicle crash that left a 38-year-old man dead early Monday morning, authorities said.

The crash was reported at about 2:15 a.m., after the victim's Ford Explorer, which was traveling "at a high rate of speed," drifted and struck a curb on Pomerado Road near Roberto Rio Road, causing the driver to lose control, sheriff's deputy Mark J. Tally said.

The Explorer continued southbound and veered back onto the roadway, sliding sideways and flipping over onto its driver's side, Tally said. The impact partially ejected the victim, identified by the county medical examiner's office as Salvador Wong-Valera, who was wearing a seatbelt.

Arriving firefighters used the Jaws of Life to cut the Wong-Valera out of the vehicle, but he died at the scene, authorities said.

The passenger, a 28-year-old man, was not injured.

December 16, 2007

SAN DIEGO DUI SUSPECT KILLS FOUR ON HIGHWAY

PALA - Four North County residents - a pair of married couples - were killed in a fiery crash on Highway 76 late Friday when the compact car they were in collided head-on with a sport utility vehicle just before midnight, and the two-lane road was closed for seven hours, authorities said.

The driver of the larger vehicle was expected to be charged with manslaughter, the California Highway Patrol said.

The San Diego County medical examiner's office identified the victims as Jesus Desantiago, 45, and Lina Desantiago, 46, of Escondido, and Luis Baez, 51, and Rubi Baez, 46, of Vista. Investigator James Buckley said the couples were riding in the same car, a 2005 Toyota Camry, driven by Jesus Desantiago.

The accident occurred at 11:51 p.m. while the Camry was heading west on Highway 76 in the North County backcountry, about two miles east of Pala Mission Road. The Camry collided with an eastbound 2005 GMC Yukon being driven by Anthony J. Boles, 24, of Palm Springs, the California Highway Patrol reported.

"For an unknown reason, Boles allowed the Yukon to drift onto the right shoulder of State Route 76 eastbound, colliding with the metal guardrail that borders the north road edge," the Highway Patrol stated in a news release. "Boles lost control of the Yukon as it crossed over the double yellow lines into the westbound lane."

The force of the collision knocked both vehicles onto their roofs, blocking the highway's westbound lane, the Highway Patrol said.

The Camry's right-front passenger, Luis Baez, was flown by a Mercy Air helicopter to Scripps Memorial Hospital La Jolla, where he was pronounced dead upon arrival, authorities said. The other three victims died at the scene, Buckley said.

Boles and a passenger, 23-year-old Deanna Fridley, also of Palm Springs, were rescued from the upside-down Yukon by passers-by who stopped to help, the Highway Patrol said. Boles and Fridley were taken to Palomar Medical Center in Escondido for treatment of serious injuries, authorities said.

"Boles will be charged with manslaughter and felony DUI (driving under the influence) when he is released from the hospital," the Highway Patrol said.

Boles was listed in good condition and Fridley was in critical condition late Saturday, said Andy Hoang, a hospital spokesman.

According to a Highway Patrol dispatcher, the accident and the investigation triggered the closure of the section of the highway between Agua Tibia Avenue and Magee Road until 7 a.m. Saturday.

December 16, 2007

SAN DIEGO DRUNK DRIVING SUSPECT DRIVES INTO HOME

SAN DIEGO DUI DEFENSE NEWS:RAMONA ---- A suspected drunk motorist drove into a Ramona home Sunday morning, but no one was hurt, authorities said.

The crash was reported at 4:18 a.m. in the 16000 block of Open View Road, a dispatcher for the California Highway Patrol reported.

The driver was cited and released on suspicion of driving under the influence, the dispatcher said, adding that there is no major damage to the house

December 16, 2007

OCEANSIDE DUI DRIVER ARRESTED

SAN DIEGO DUI DEFENSE NEWSOceanside Drunk Driver arrested for Running Over Man

OCEANSIDE ---- A woman who struck and ran over a man in her Toyota Tacoma on Wednesday night was arrested for drunken driving shortly after the incident, Oceanside police Sgt. Leonard Cosby said Thursday.

Kathryn Day of Oceanside initially stopped for the man, who was walking west on the south side of Oceanside Boulevard near Crouch Street at 5:38 p.m. Wednesday. Shortly after, she pulled out into the street, striking the man and running him over, Cosby said.

The man, reported to be in his 60s, was taken by helicopter to a local hospital with serious injuries Wednesday night, an Oceanside fire official said. His identity and condition were not available.

December 16, 2007

San Diego Sheriffs Arrest 15 Suspected Vista Drunk Drivers in DUI Checkpoint Sting

VISTA DUI DEFENSE NEWS:

VISTA ---- A dozen drivers suspected of drunken driving were arrested at a Sheriff's department DUI checkpoint that started at 8 p.m. Saturday night.

By the time the checkpoint on East Vista Way had closed at 2 a.m. Sunday, 88 citations had been written, sheriff's officials said. The majority of citations, 49, were written for driving without a license.

Other offenses that earned citations included driving without a license in possession, driving with a suspended license, and failing to obey child safety belt laws.

Officials said that of the 1,435 vehicles to arrive at the checkpoint, 733 were randomly inspected.

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December 16, 2007

SAN DIEGO CHARGER STEVE FOLEY WON'T BE CHARGED IN SAN DIEGO DUI INCIDENT; NEITHER WILL THE COP THAT SHOT HIM

SAN DIEGO DUI DEFENSE NEWS

San Diego District Attorney Bonnie Dumanis has never seen a San Diego police officer shooting she didn't like. In this case regarding San Diego Charger Steve Foley, Dumanis says she will charge neither Foley nor the officer who shot him since they were both acting in self defense.

Now if that isn't just the dumbest thing....

Remember that this rookie Coronado cop was following Foley for more than 40 miles from Coronado in an unmarked car and wearing street cars before he stopped him. Lucky for him Foley didn't shoot him. I mean, if you saw this face in plain clothes following you, and you're a rich football player, what would you do? The stalkarazzi is everywhere, and no offense Officer Mansker, you're plainclothes face doesn't exactly exude sincerity and warmth.

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But in typical Bonnie Dumanis fashion, she skates by this obvious police misconduct and uses the wild excuse that it was mutual self defense. Again, this is one of those "say what?" moments... BONNIE, SAY WHAT?

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By: TERI FIGUEROA - Staff Writer

SAN DIEGO -- Neither former Chargers linebacker Steve Foley nor the off-duty Coronado police officer who shot him will be charged for his role in an early morning confrontation in Poway in 2006, San Diego County District Attorney Bonnie Dumanis announced Friday.

Dumanis said her office's investigation revealed that both men were acting in self-defense -- Foley when he confronted the officer after refusing to pull over, and rookie Officer Aaron Mansker when he shot Foley three times.

"It was a reasonable use of deadly force," Dumanis said of Mansker's decision to pull the trigger. "Every person has a right to self defense."

Mansker shot Foley three times on Sept. 3, 2006, on Foley's quiet Poway cul-de-sac after the officer -- who was in street clothes and driving his personal car -- tried to get Foley to pull over on suspicion of drunken driving after pursuing the football player on Highway 163 and Interstate 15. Mansker said he identified himself as a police officer. He said he showed Foley his gun, but not his badge.

Foley approached Mansker on foot after Mansker found himself trapped at the end of the cul-de-sac. Foley's attorney has said Foley thought Mansker was an overzealous fan.

The shooting left the veteran linebacker with .40-caliber bullet wounds in his leg, hip and arm -- injuries that appear to have ended his football career.

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"We're not going to have any comment on Steve's situation," Chargers spokesman Bill Johnston said Friday.

Dumanis said her conclusion that Mansker acted in self-defense would have been the same even if Mansker, an Escondido resident at the time of the shooting, had been a private citizen and not a police officer.

She also said in a letter clearing Mansker that Foley passed the "safety and security" of his own home, as he marched 270 feet to confront Mansker.

In a footnote to the letter, Dumanis said she was "mindful" that a prosecution of Mansker would likely open the door for his defense to tell a jury about prior acts of violence by Foley -- including an April 2006 confrontation with police officers in La Jolla.

Foley was also arrested for battery in 1995, domestic violence in April 2000 and for firing a gun later that same year.

Dumanis said her office's investigation, a routine process whenever an officer shoots someone, was not an attempt to affix blame.

"Our focus is narrow," Dumanis said. "All we look at is whether a crime was committed."

Asked about the decision to clear Mansker, Coronado Police Chief Lou Scanlon cited a pending civil suit Foley has filed, charging Mansker and the police department with negligence.

"I can't comment on any of the specifics," Scanlon said. "I think the facts speak for themselves."

The trial is set for June. Foley has not commented on the case; court documents show that attorneys expect his deposition in the civil suit to happen before March.

Neither Foley's attorney nor those representing Mansker and the police department in the civil suit returned calls for comment Friday.

Mansker was briefly sidelined by the police department after the shooting, but returned to his full duties as a patrol officer in January and remains as a patrol officer with the Coronado Police Department.

The confrontation prompted other charges. Foley was charged with misdemeanor drunken driving; he pleaded guilty in May. He was sentenced to five years' probation, assessed a $1,756 fine, ordered to submit to alcohol testing if pulled over by authorities and was told to attend an event for Mothers Against Drunk Driving.

And Foley's friend and passenger that night, Lisa Maree Gaut, was convicted of assault with a deadly weapon for driving Foley's car toward Mansker in the waning moments of the confrontation.

But the jury acquitted Gaut on a separate charge of assault with a deadly weapon on a police officer -- a charge that alleged she knew that Mansker was a policeman.

Gaut had been a passenger in the car. When Foley got out to confront Mansker, Gaut got behind the wheel and drove, following Foley as he walked toward Mansker.

After Mansker shot Foley, he shot at the car Gaut was driving. He testified he believed she was trying to run him down; she testified that she was simply trying to rescue her friend, who was lying on the street bleeding from a gunshot wound.

Gaut was sentenced to six months in jail on June 22. She is appealing her conviction.

December 14, 2007

NINTH CIRCUIT RULES THAT SEARCH CONDITION OF SUPERVISED RELEASE IS NOT TOO INTRUSIVE

An intrusive search condition imposed on a defendant who pled to a financial crime was not an abuse of discretion. In fact, it almost cannot be an abuse of discretion under Samson.

The district court could justifiably be concerned that defendant's conduct was not aberrational, despite his claims to the contrary. United States v. Betts, 2007 U.S. App. LEXIS 29063 (9th Cir. December 14, 2007):

Betts argued that the court abused its discretion because he had no prior convictions and had fully accepted responsibility for his crime. But the Ninth Circuit stated it could not characterize the trial court's exercise of discretion as an abuse, although it admitted the search condition was very intrusive. The court reasoned that the public is entitled to protection against the possibility that Betts's conduct may not have been so aberrational as he contends. It also considered his skill and success in committing this subtle fraud, protection will not be easy.

The Ninth Circuit also dicussed application of Samson v. California, where a similarly worded condition imposed by statute on all California parolees did not violate the Fourth Amendment, even though the condition did not require reasonable suspicion.

The Court considered the high risk of recidivism for people convicted of crimes, and the problem that "[i]mposing a reasonable suspicion requirement ... would give parolees greater opportunity to anticipate searches and conceal criminality."

Because the blanket requirement imposed by California on state parolees did not violate the Fourth Amendment, a fortiori the individualized requirement imposed in Betts' case on supervised release does not. The court reasoned that there is no sound reason for distinguishing parole from supervised release with respect to Fourth Amendment waivers. The federal system has abolished parole, and uses supervised release to supervise felons after they get out of prison.

December 14, 2007

COURT OF APPEAL SAYS DEFENDANT WHO FAILS TO PASSWORD PROTECT HIS COMPUTER FILES HAS NO EXPECTATION OF PRIVACY

The defendant had no reasonable expectation of privacy on his computer attached to a military base network in Saudi Arabia. He thought his files were password protected, but they were not.

His personal files were accidentally accessed by somebody finding, oops, child porn on his personal computer when it was attached to the network.

Therefore, he had no reasonable expectation of privacy in the network. The court analogized it to a person having attempted to protect against other seeing the information but failing in the attempt.

United States v. King, 2007 U.S. App. LEXIS 28912 (11th Cir. December 14, 2007):


Continue reading "COURT OF APPEAL SAYS DEFENDANT WHO FAILS TO PASSWORD PROTECT HIS COMPUTER FILES HAS NO EXPECTATION OF PRIVACY" »

December 14, 2007

NINTH CIRCUIT FOLLOWS CALIFORNIA COURTS: TERMS OF PROBATION MUST BE REASONABLY RELATED TO THE PROBATIONER

In a not-so-unexpected move, the Ninth Circuit Court of Appeal has held that the terms of supervised release must be reasonably related to the probationer. California criminal defense attorneys have long been able to object to judges imposing terms of probation that had nothing to do with the crime charged or the particular defendant. For example, there is no rational basis for imposing a Fourth Amendment waiver on a person who is convicted of a California domestic violence charge. Similarly, there is no basis for imposing a condition that a California probationer not be allowed to drink alcohol is he is convicted of writing bad checks.

California criminal courts have no ability to randomly impose search terms of probation conditions unless such a condition is somehow related to the charge or the defendant.

This week, the Ninth Circuit agreed, following the well established rule of law in California state cases. Now California federal criminal defense lawyers can make the same arguments and win.

United States v. Brandon Betts, __ F.3d __, 2007 WL 4355365 (9th Cir. Dec. 14, 2007)

Facts:

Defendant Betts worked at a credit reporting company, and pleaded guilty to taking bribes to fix creditors’s bad credit. 2007 WL 4355365, *1. As is true in all FPD cases, “[o]n the advice of counsel, Betts declined to discuss his past or current use of illicit substances of alcohol.” Id. at *4. Although there was nothing in the record to suggest alcohol abuse, the judge imposed the condition of supervised release that “the defendant shall abstain from using illicit drugs or alcohol and abusing prescription medications during the term of supervised release.” Id. at *4.

Issue(s):
“Betts contends that the condition prohibiting him from drinking alcohol fails the test set out in Weber.” Id. at *5.

Held:

“We agree. No one suggests that alcohol played any role in Betts’s crime. And there was no evidence that Betts had any past problems with alcohol. Under these circumstances, we think it impossible to say that the condition imposed bears a reasonable relationship to rehabilitating the offender, protecting the public, or providing adequate deterrence.” Id. at *5.

Of Note:

On Liberty: “Moderate consumption of alcohol does not rise to the dignity of our sacred liberties, such as freedom of speech, but the freedom to drink a beer while sitting in a recliner and watching a football game is nevertheless a liberty people have, and it is probably exercised by more people than the liberty to publish a political opinion.” Id. at *6.

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December 13, 2007

JUNK IN THE YARD GIVES RISE TO WARRANT TO SEARCH IN CALIFORNIA

The police were entitled to a warrant to search the defendant's property because of the unsightly junk he collected there for his various engineering projects. Carpiaux v. City of Emeryville, 2007 U.S. Dist. LEXIS 91574 (N.D. Cal. December 13, 2007).*

Hint: Clean up your front lawn if you live in Northern California.

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December 12, 2007

VIDEOTAPE OF DUI SUSPECT'S DRUNK DRIVING ARREST DOESN'T SUPPORT ARREST FOR DUI

Long, long ago, San Diego DUI defense lawyers began getting videotapes of our clients' DUI stops. As soon as law enforcement learned that San Diego DUI defense attorneys were winning cases by using these tapes (because the cops did just about everything wrong) they stopped using them. SO much for justice. The same goes for DUI arrests in Texas. See below:

The Texas DUI suspect was stopped and the officer smelled alcohol. The officer's patrol car video was not admitted at the hearing, but the trial court saw it.

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In the first appeal, the videotape was not in the record, and the court affirmed, Amador v. State, 187 S.W.3d 543, 545 (Tex. App.-Beaumont 2006), but the Court of Criminal Appeals reversed because of the lack of the video in the record. Amador v. State, 221 S.W.3d 666, 667-68 (Tex. Crim. App. 2007). A five minute portion was certified by the trial court as what it saw, and it did not include the field sobriety test that defendant allegedly failed. The video thus did not support probable cause. Reversed. Amador v. State, 2007 Tex. App. LEXIS 9675 (Tex. App. — Beaumont December 12, 2007).


December 12, 2007

DISTRICT OF COLUMBIA ADMINISTRATIVE SEARCH NOT BARRED BY HECK V. HUMPHREY LIMITATIONS

Heck v. Humphrey bar did not apply to an administrative search determination that favored the plaintiff and was not even attacking a conviction.

Elkins v. District of Columbia, 2007 U.S. Dist. LEXIS 91027 (D. D.C. December 12, 2007).*

December 12, 2007

STUPID SEARCH CASE OF THE WEEK-WHAT'S GOING ON IN IOWA?

A stop of three men in a pickup truck for a seat violation at 2 a.m., without more, is not cause for a patdown of anybody. When defendant, however, resisted his patdown (not just objecting to it), the officer had cause for a patdown.

Note: Say what? So, the police officer who conducted the stop has no legal basis to pat down. But, when the police officer attempts unlawfully to pat down, and the defendant resists this unawful pat down, the defendant's act of resisting the unlawful patdown suddenly makes the unlawful patdown okay, okay?

Say what? I'm just confused. This is just dumb and, clearly, Iowa law enforcement will just keep on keeping on with its unlawful acts hoping that the target's acts will legalize their illegal behavior. Say what?

State v. Anderson, 2007 Iowa App. LEXIS 1312 (December 12, 2007).

December 11, 2007

SAN DIEGO DUI DEFENSE LAWYER NEWS: DUI MURDER CASE UPHELD BY COURT OF APPEAL

In this case, the Defendat was convicted by jury trial of second degree murder (PC §187), failing to stop at the scene of an injury accident (VC §20001(a), (b)(1)), failing to stop at the scene of an accident resulting in property damage (VC §20002(a)), reckless driving causing great bodily injury with a prior conviction (VC §23104(b)), driving with a suspended license (VC §14601.2(a)) and being under the influence of a controlled substance (H&S Code §11550(a)).

The trial court committed him to state prison for a term of 15 years to life for the murder count consecutive to a three-year upper term for the VC §20001 count.

On appeal, the Defendant contended that (1) the trial court prejudicially erred in refusing to modify the implied malice instruction upon his request, (2) his trial counsel was prejudicially deficient in failing to request modification of the voluntary intoxication instruction, (3) the trial court prejudicially erred in excluding evidence of def.’s good character, and (4) the imposition of an upper term violated def.’s right to a jury trial on any aggravating circumstance.

In a petition for a writ of habeas corpus, the Defendant repeated his claim that his trial counsel was prejudicially deficient in failing to request modification of the voluntary intoxication instruction.

The Court of Appeal concluded that the trial court did not make any prejudicial instructional or evidentiary errors, the Defendant's trial counsel was not prejudicially deficient, and the trial court did not violate the Defendant's constitutional rights in imposing the upper term.

The Defendant was convicted of “driving impaired” in October 1989 and again in December 1990. In 1991, def. completed “driving while impaired classes.” Defendant also completed traffic school three times. He attended an eight-hour “live class” in March 1998 and again in January 2001, and took an “on-line course” in January 2003. These classes covered the issue of impairment as a result of using drugs and driving and “conveyed” the message that driving under the influence of drugs was dangerous.

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December 11, 2007

CALIFORNIA COURT UPHOLDS COP'S AUTO STOP BECAUSE AIR FRESHENER "OBSTRUCTED" THE DRIVER'S VIEW

This California criminal stop case goes in the "you've got to be kidding me" pile. People v. Colbert (6th District)

The driver in this case had a tree-shaped air freshener hanging from the rear view mirror of his car, not unlike those smelly "vanilla" trees the car wash tries to pawn off on me all the time after they wash my car.

A police officer saw the hanging object, concluded that it was obstructing defendant’s view through the front windshield in violation of California Vehicle Code §26708(a)(2), and stopped and detained defendant. The cop found a bunch of methadone pills.

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The driver asserted, at a suppression motion, that the officer lacked an objective basis for concluding that the air freshener was obstructing his view through the front windshield.

The California Sixth District Court of Appeal concluded that the evidence in this case, unlike the evidence in People v. White (2003) 107 CA4th 636 (White), supported the magistrate’s finding that the officer had an objective basis for his belief that the air freshener was obstructing defendant’s view.


December 11, 2007

DENIAL OF CALIFORNIA FEDERAL HABEAS CORPUS PETITION REVERSED; TRIAL COURT ERRED IN DENYING DEFENSE INSTRUCTION

The court's denial of petitioner's habeas corpus petition challenging petitioner's jury conviction for unlawfully taking a vehicle is reversed in part where a state court's application of harmless error review to the trial court's jury instruction lowering the prosecution's burden of proof was contrary to or an unreasonable application of clearly established Supreme Court precedent.

Byrd v. Lewis, No. 06-15977

Note: I am always confounded when the appellate court reverses a trial court for failing to follow a "clearly established rule" or precedent. I think judges that make $150,000 plus benefits every year shouldn't be busy applying - not violating - clearly established rules.

December 10, 2007

NINTH CIRCUIT SAYS 15-YEAR DELAY FROM INDICTMENT TO ARREST DOESN'T VIOLATE SPEEDY TRIAL

This is an appeal from a conviction for a tunnelling case. The tunnel ran from Agua Prieta, Mexico, about 200 yards under the border to a warehouse in Douglas, Arizona. It was a sophisticated tunnel, turning an outside spigot caused a hydrolic lift to raise and the door to open.

The defendant was an architect, and Mexican national. He was indicted in 1988, but only arrested in 2003 and subsequently extradicted.

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Defendant argues on appeal that the pre-indictment delay prejudiced him, and also speedy trial violations. The Ninth Circuit held that there was no preindictment delay because the indictment was within the statute of limitations. Further, the prejudice was not enough.

As for speedy trial, the 9th found that the justification offered by the government, of good faith attempts to extradicte, was sufficient. The Mexican government was not extradicting defendants in the 1990's, and the US made efforts to locate and extradite and seize him.

U.S. v. Corona-Verbera, No. 06-10538 (12-7-07).

December 10, 2007

NEW JERSEY MAY BE FIRST STATE TO ABOLISH THE DEATH PENALTY

As detailed in the New York Times, New Jersey's legislature took its first major step toward abolishing the state's death penalty.

The New Jersey Senate voted Monday to make the state the first in the country to repeal the death penalty since the United States Supreme Court allowed executions to resume in 1976 and established the nation’s current system of capital punishment. Passage in the Senate was seen as the bill’s biggest obstacle, and in the end it was approved 21 to 16, receiving the bare minimum number of votes required.

Legislators on both sides of the debate expect the measure to pass easily on Thursday in the Assembly, where the Democrats enjoy a 50-to-30 majority. Gov. Jon S. Corzine, a staunch opponent of the death penalty, has repeatedly said he would sign a measure ending executions....

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Opponents of the death penalty said today that they hoped that New Jersey’s action would re-energize movements in states that have recently voted down abolition bills and serve as a catalyst for other states to revisit their capital punishment laws....

While the Senate vote mainly broke down along party lines, four Republicans did break from the party leadership and vote for the bill. Three of them — Mr. Martin, James J. McCullough and Joseph A. Palaia — will not be returning to the Senate when the new Legislature is seated next month.

Earlier in the day, legislation to replace the death penalty with life in prison and no chance of parole was approved by the General Assembly’s Law and Public Safety Committee.

Continue reading "NEW JERSEY MAY BE FIRST STATE TO ABOLISH THE DEATH PENALTY" »

December 10, 2007

TRADING DRUGS FOR A GUN IS NOT "USE" UNDER FEDERAL LAW

A defendant who traded drugs for a gun did not "use" a firearm during a drug trafficking crime within the meaning of 18 U.S.C. section 924(c)(1)(A)'s mandatory minimum.

Watson v. United States (U.S. Sup. Court 12/10/07, 06-571) 07 C.D.O.S. 14087
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December 10, 2007

UNITED STATES SUPREME COURT SAY TRIAL COURTS ARE NOT BOUND BY FEDERAL SENTENCING GUIDELINES; DISPARITY IN POLICY BETWEEN CRACK AND POWDER COCAINE DOES NOT BIND THE SENTENCING COURT

The cocaine sentencing guidelines are advisory only, same as the other guidelines, and the crack/powder disparity in the guidelines does not bind the trial court. Judge may consider disparity in determining sentence.

Justice Scalia concurs in the court's decision. Not shockingly, the new right-wing coalition (gang) of Thomas and Alito dissent, albeit separately and for different reasons.

This opens the doors to thousands of African Americans who were given higher sentences, since African Americans, according to the Associated Press. African Americans are the population most frequently using crack cocaine.

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Kimbrough v. United States (U.S. Sup. Court 12/10/07, 06-6330) 07 C.D.O.S. 14079

December 7, 2007

MISDEMEANOR CHILD ABUSE IS NOT A LESSER OFFENSE OF INFLICTING INJURY ON A CHILD

The California Fourth District Court of Appeal determines in this case that the California crime of misdemeanor child abuse (Penal Code section 273a) is not a lesser included offense of felony inflicting physical injury on child. (Penal Code section 273d.) California criminal defense attorneys will no longer be able to pitch this jury instruction to the courts at trials.

People v. Moussabeck (C.A. 4th, 12/7/07, G038038) 07 C.D.O.S. 14047

December 7, 2007

MURRIETA DUI CHECKPOINT TO BE CONDUCTED TOMORROW NIGHT BY MURRIETA DUI POLICE TRAFFIC UNITS

MURRIETA POLICE DEPARTMENT SEEKS TO NAB MURRIETA DRUNK DRIVERS THIS HOLIDAY SEASON. IT STARTS NOW.

Date/Time Written:
12/7/200618:42
Type of Incident:
DUI/Driver's License Checkpoint
Date/Time of Incident: 12/8/2006

Reporting Officer:
SergeanT Sean Hadden

Reporting Officer Phone:
951-461-6365

On Friday December 8, 2006 the Murrieta Police Department will be conducting a combination sobriety/drivers license checkpoint in the City of Murrieta. The time and location of the checkpoint can be obtained from the Murrieta Police Department’s watch commander after 12:00 noon on December 8, 2006.

Contact the sergeant at the number listed above for exact placement of the checkpoint.

For tips on avoiding a Murrieta DUI this holiday season, click:http://www.californiacriminallawyerblog.com/2007/12/san_diego_dui_defense_lawyer_g.html

And for answers to your DUI questions, click on my website at: http://www.acrimedefenseattorney.com/pages/dui.html

December 7, 2007

SOUTHERN CALIFORNIA COURT ORDERS COPS TO RETURN MARIJUANA

Southern California Courts Orders Pot Returned to Medical Marijuana User

The police seized marijuana from the defendant. The defendant had doctor's approval to use the marijuana, so charges were dismissed under the California medical marijuana law. The defendant moved for return of his marijuana from the police. The California Court of Appeals, Fourth District, says he's entitled to get the stuff back.

The argument rejected by the Court of Appeal is that this violates federal law. The Court of Appeal says that federal law doesn't bar return of the marijuana to a qualified user permitted to have it under state law.

City of Garden Grove v. Superior Court; 2007 DJ DAR 17553; DJ, 11/30/07; C/A 4th

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December 6, 2007

NEW CALIFORNIA DUI LAWS WILL SNAG MORE CALIFORNIA DUI PROBATIONERS WITH FALSE EVIDENCE

A new California law aimed at raising the penalties for DUI will require all people on probation for a California DUI to take a Preliminary Alcohol Screening test (PAS) if lawfully detained for suspicion of a new DUI. If the person's blood alcohol level is .01 percent or greater, it's back to the big house.

Doesn't the state legislature know by now that these roadside PAS tests historically post false results? Do we really need more false convictions using junk science? Must we stuff the courts with violations of the probation condition "do not drive with any measurable alcohol in your system" when those little roadside handheld machines historically read alcohol that isn't there?

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Maybe we can get this undone before it goes into effect in 2009? AB 1165 (Maze) will locate its new 0.01 violation in CVC 23154. Look for it in 2009.

Here's the script:

SEC. 5. Section 23154 is added to the Vehicle Code, to read:
23154. (a) It is unlawful for a person who is on probation for a
violation of Section 23152 or 23153 to operate a motor vehicle at any
time with a blood-alcohol concentration of 0.01 percent or greater,
as measured by a preliminary alcohol screening test or other chemical
test.
(b) A person may be found to be in violation of subdivision (a) if
the person was, at the time of driving, on probation for a violation
of Section 23152 or 23153, and the trier of fact finds that the
person had consumed an alcoholic beverage and was driving a vehicle
with a blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test or other chemical
test.
(c) (1) A person who is on probation for a violation of Section
23152 or 23153 who drives a motor vehicle is deemed to have given his
or her consent to a preliminary alcohol screening test or other
chemical test for the purpose of determining the presence of alcohol
in the person, if lawfully detained for an alleged violation of
subdivision (a).
(2) The testing shall be incidental to a lawful detention and
administered at the direction of a peace officer having reasonable
cause to believe the person is driving a motor vehicle in violation
of subdivision (a).
(3) The person shall be told that his or her failure to submit to,
or the failure to complete, a preliminary alcohol screening test or
other chemical test as requested will result in the suspension or
revocation of the person's privilege to operate a motor vehicle for a
period of one year to three years, as provided in Section 13353.1.


Continue reading "NEW CALIFORNIA DUI LAWS WILL SNAG MORE CALIFORNIA DUI PROBATIONERS WITH FALSE EVIDENCE" »

December 5, 2007

CALIFORNIA FEDERAL CIVIL RIGHTS LAWSUIT ATTACKING BLANKET STRIP SEARCHES OF CALIFORNIA JUVENILES IN DETENTION FACILITIES SURVIVES SUMMARY JUDGMENT

In this federal civil rights lawsuit in the Northern District of California, the Court determined Friday that the blanket strip search policy of a juvenile detention center by Contra Costa County officials survived summary judgment.

This case offers fascinating summaries of the summary judgment material presented by Plaintiffs showing the potential psychological damage to a juvenile from a strip search. Under the facts of this case, the search of the juvenile plaintiff occurred long after introduction into the detention facility.

Also, circuit law was unclear, but there was a 1981 case favoring plaintiff and there were three cases from other district courts in other circuits in point that the court used to show the claim was valid. This is a lengthy opinion developed from what appears to be a particularly strident response from the defendants on summary judgment. Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. December 5, 2007):

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While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants' evidence falls short of establishing the constitutionality of blanket strip searches--both upon intake and after returning from visits with individuals who were not employed by Juvenile Hall.

With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons. Further, in the face of Plaintiffs' evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.


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December 5, 2007

FEDERAL CIVIL RIGHTS CASE SAVED BY EQUITABLE TOLLING AFTER CRIMINAL CONVICTION REVERSED

Equitable tolling applies to save a § 1983 case that was filed within one year of reversal of a conviction, and after Wallace v. Kato held that the cause of action accrues after reversal. The case was dead under Heck until reversal. Kucharski v. Leveille, 2007 U.S. Dist. LEXIS 89320 (E.D. Mich. December 5, 2007):

In Wallace v. Kato, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), the Supreme Court overruled all the precedents in the circuits applying Heck to bar section 1983 claims filed by persons with criminal charges pending in state court or deferring the accrual date of such claims. Heck only applies if the plaintiff has actually been convicted. The Court held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey does not require otherwise. Shamaeizadeh, plainly, was overruled.

There can be no question that the plaintiffs relied on Sixth Circuit precedent to their prejudice in this case. The untimeliness of the plaintiffs' complaint results from an understandable confusion about the state of the law as to when their claim accrued. That confusion was created by the courts themselves. The delay did not result from the plaintiffs' failure to diligently pursue the claim. In fact, the plaintiffs filed their complaint less than one year after their convictions were reversed.

Moreover, strict application of Wallace to this case effectively deprives the plaintiffs of their cause of action. If the plaintiffs had filed their case immediately after the search on May 4, 2001, Sixth Circuit precedent would have required dismissal of the case as barred by Heck. Once the law changed, the plaintiffs' convictions having been reversed on September 30, 2004, the plaintiffs would be barred by the statute of limitations under Wallace. This is "a result surely not intended." Wallace, 127 S. Ct. at 1099 n.4. Rather, this is the unusual case that fits neatly within the doctrine of equitable tolling.

The Court concludes that Michigan law tolled the three-year statute of limitations while the plaintiffs' convictions were still viable, and filing this case within three years of the reversal of those convictions does not result in a statute of limitations bar.

Accordingly, it is ORDERED that the plaintiffs' motion for reconsideration [dkt # 51] is GRANTED.


December 5, 2007

EL CAJON DUI DEFENDANT FACES PRESCRIPTION FRAUD AND BURGLARY CHARGES

EL CAJON, Calif. -- A 26-year-old Ramona woman already facing five DUI cases -- one involving an alleged hit-and-run crash that injured a child -- pleaded not guilty Thursday to six counts each of prescription fraud and burglary.

Tiffany Adamo went "doctor shopping" to come up with 950 Vicodin tablets, 240 Valium pills and numerous other types of medications, Deputy District Attorney Victor Barr told Judge Patricia Cookson.

"She went to several different doctors without telling them about the other ones," Barr said. Adamo saw at least seven doctors, and possibly as many as 15, Barr alleged. The defendant got the pills from about 11 pharmacies, according to the prosecutor.

On Oct. 13, Adamo was arrested in the parking lot of Grossmont Center in La Mesa, where she allegedly struck a 7-year-old boy with her vehicle, pinning him against another car.

The defendant had a blank expression on her face and refused to take her foot off the gas pedal until witnesses intervened, said prosecutor Polly Shamoon, who handled an earlier hearing.

Adamo is charged in that case with driving under the influence of drugs, hit-and-run with injury and felony child abuse.

Defense attorney A. King Aminpour said his client didn't steal anything and was "an upstanding citizen" who had no criminal record until she became addicted to Vicodin in the past few months.

The defendant was injured in a car accident two years ago and has been in pain ever since, the attorney said.

According to Shamoon, the defendant's previous arrests that resulted in misdemeanor charges were on:

May 25, following a single-car accident on Interstate 8 near Lake Jennings Park Road
June 28 in Poway, when witnesses reported Adamo was driving poorly and could barely walk or talk when she got out of the car Sept. 27 and Oct. 10 in La Mesa, after which she had to be revived at the hospital.

Cookson Thursday increased Adamo's bail from $1 million to $1.145 million and scheduled a preliminary hearing for Dec. 20.


Continue reading "EL CAJON DUI DEFENDANT FACES PRESCRIPTION FRAUD AND BURGLARY CHARGES" »

December 5, 2007

MINIMUM MANDATORY SENTENCING APPLIES TO FEDERAL DRUGS CRIMES EVEN WHEN NO DRUGS ARE INVOLVED

FEDERAL CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Macias-Valencia, No. 06-10711

The mandatory minimum sentence of 10 years, prescribed by 21 U.S.C. section 841(b)(1)(A)(viii), applies to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense.

December 5, 2007

FAILING TO OBJECT TO MULTIPLICITOUS SENTENCES IS NOT A BAR TO DOUBLE JEOPARDY CLAIM FOR CALIFORNIA CRIMINAL DEFENDANT

CRIMINAL LAW & PROCEDURE, SENTENCING

US v. Zalapa, No. 06-50487

A defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal. Read more...

December 5, 2007

NINTH CIRCUIT AFFIRMS SEVERE CHILD PORN SENTENCE

Defendant's sentence for coercing and enticing a minor to engage in sexual activity and possession of child pornography is affirmed where:

1) for purposes of applying a two-level enhancement for misrepresentation of identity, the district court reasonably could have concluded that defendant was misrepresenting his identity in a prolonged effort to groom what he thought was a thirteen-year-old girl for illicit sexual contact; and

2) a vulnerable victim enhancement, and an enhancement for sadistic or masochistic conduct portrayed in the illegal images at issue, were not improperly "double counted" when applied to the sentence

US v. Holt, No. 06-30597

December 5, 2007

PALO ALTO COPS LIABLE FOR BEATING PEDESTRIAN

Schmidlin v. City of Palo Alto (2007) , Cal.App.4th
[No. H026841. Sixth Dist. Dec. 4, 2007.]
MICHAEL SCHMIDLIN, Plaintiff and Appellant, v. THE CITY OF PALO ALTO et al., Defendants and Appellants.

(Superior Court of Santa Clara County, No. CV794565, Robert A. Baines, Judge.)

(Opinion by Rushing, P.J., with McAdams, J., concurring. Dissenting opinion by Mihara, J.)

COUNSEL

Mark Martel, for Plaintiff and Appellant

Office of the City Attorney, Gary M. Baum, City Attorney, William B. Mayfield, Senior City Attorney, Donald A. Larkin, Assistant City Attorney, for Defendants and Appellants

OPINION

RUSHING, P.J.-

Plaintiff Michael Schmidlin brought this action against the City of Palo Alto and several of its police officers, alleging that the officers committed various constitutional and common-law torts when they detained and arrested him for public drunkenness. After various claims were dismissed on legal grounds, a jury found that officers had used excessive force against plaintiff, but rejected claims of unlawful arrest and fabrication of police reports. Both parties appeal on numerous grounds. We find no reversible error, and affirm the judgment. fn. 1

BACKGROUND
According to plaintiff, he and two companions, Jim Walker and Bill D'Honau, were walking along a downtown Palo Alto street in the early morning hours of {Slip Opn. Page 2} March 29, 1997, when they were accosted by two young women in a car driving the wrong way on the street. As plaintiff tried to persuade the women not to drive in their condition, defendant Bertrand Milliken, a Palo Alto police officer, arrived in his patrol car. Thinking the women were about to be arrested, plaintiff began to walk away. His companions, however, remained behind to watch, so plaintiff turned and waited for them near a sign. Plaintiff and his companions testified that plaintiff was not drunk and did not appear drunk.

Milliken testified that plaintiff staggered drunkenly to the sign, where he appeared to be urinating. He approached plaintiff to investigate. Plaintiff was not urinating, but Milliken asked him for identification anyway. Plaintiff balked at this, and told Milliken he had left his identification in his truck. Plaintiff and his companions told Milliken they were on their way home. Milliken conceded that they told him they were just walking down the street a few blocks and that Walker and D'Honau said they were with plaintiff. Milliken testified that plaintiff appeared drunk, and that soon after their exchange began, plaintiff became hostile, put his face close to Milliken's, and seemed to be going to fight him. According to Milliken, plaintiff started to walk away several times, whereupon Milliken ordered him to remain. Plaintiff and his companions denied this, though Walker testified that plaintiff averted his gaze at one point and plaintiff testified that he stepped back as Milliken got extremely close to him.

iran-police-brutality.jpg

At least four and half minutes after approaching plaintiff, Milliken placed a non-urgent call for backup. In response, defendant Officer Martin drove to the scene. When he arrived, Milliken told plaintiff he was under arrest. Without warning, according to plaintiff and his companions, the officers grabbed plaintiff's arms and threw him face-first to the ground, both landing on top of him. Plaintiff testified that Martin then began punching him, grabbing his head by the hair and jamming it into the sidewalk, producing cuts and abrasions on his face. A third officer, defendant Trujillo, ran up and hit plaintiff on the legs with a baton. {Slip Opn. Page 3}

Plaintiff's companions Williams and D'Honau complained at the scene about his treatment, and a police sergeant, defendant Carole Baldwin, arrived to speak to them. Although her report indicated that they were upset about officers' treatment of plaintiff, they testified that she attributed to them statements they did not make, and omitted statements they did make.

After plaintiff's arrest, officers took him to Stanford Hospital for an assessment of his injuries. Plaintiff said that officers refused to let him use the bathroom at this time, but defendant Milliken told plaintiff he could use the bathroom if he would provide a urine sample. Plaintiff agreed, although he did not want to provide a urine sample because, he testified, he feared officers might tamper with it. After using the bathroom, he presented a sample cup filled with water. When he went to the bathroom a second time, defendants Milliken and Martin followed him and, according to plaintiff, threw him to the floor and elbowed and kneed him.

Plaintiff was subsequently charged with a number of misdemeanors, as more fully described below. (See p. 9, post.) During the course of the criminal prosecution he made a motion to suppress evidence, alleging that Officer Milliken had lacked sufficient grounds to conduct an investigatory detention, and that all evidence flowing from that detention should be excluded. That motion was denied, and plaintiff was tried in January 1999 on charges of resisting arrest, public intoxication, false identification, assault on a police officer (Martin), and battery on a police officer (Milliken). The jury found him guilty of false identification and not guilty of public drunkenness and assault, but failed to reach a verdict on resisting arrest and battery. Plaintiff successfully moved for a new trial on the false identification charge based on instructional error and juror misconduct. After announcing an intention to retry the remaining charges, the prosecutor dismissed them on the eve of trial.

On December 12, 2000, plaintiff brought this action against Officers Milliken, Martin, Trujillo, and Baldwin, the Palo Alto Police Department, and the City of Palo {Slip Opn. Page 4} Alto. Defendants brought a motion for summary judgment, arguing among other things that the denial of plaintiff's suppression motion precluded him from pursuing his claims for unlawful detention and arrest, and that the statute of limitations barred the claims for excessive force. The court denied the motion.

The matter came on for trial, and after proceedings described more fully below, the jury found that Officers Milliken, Martin, and Trujillo had violated plaintiff's constitutional rights by using excessive force against his person. The jury rejected his claims of false arrest and fabrication of police reports. The trial court denied defendants' motion for judgment notwithstanding the verdict. Defendants, followed by plaintiff, filed timely notices of appeal.

TO READ THIS LENGTHY OPINION, PLEASE CLICK BELOW....

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December 5, 2007

NINTH CIRCUIT OPINIONS FOR DECEMBER 5, 2007 AT A GLANCE

PROCEDURE
People v. Super. Ct. (Maldonado), No. B202492
Petition for writ of mandate challenging dismissal of information charging defendant with continuous sexual abuse of a child and lewd acts on a child is granted where the one-year period of limitations under Penal Code section 803(f) does not begin to run upon a report of unlawful sexual conduct that does not include allegations of substantial sexual conduct.

CRIMINAL LAW & PROCEDURE, SENTENCING
People v. Prosser, No. G038481
Defendant real estate broker's conviction and sentence for burglary and receiving stolen property are affirmed over claim that in making the restitution orders the trial court erred in failing to itemize the component parts of each lump sum figure and in relying on the opinions of the victims in establishing the value of the stolen items.

CRIMINAL LAW & PROCEDURE
People v. Zacarias, No. D049593
Conviction and sentence for kidnapping for financial gain are reversed as the vicarious liability doctrine applicable to conspiracies exists to extend the liability of those who are guilty of conspiracies to commit California crimes and not to commit federal crimes, and it could not be determined whether the jury relied on one of the legally viable theories on which it was instructed.

December 4, 2007

NINTH CIRCUIT FINDS INSUFFICIENT EVIDENCE OF "SHAKEN BABY SYNDROME"

On remand from the U.S. Supreme Court to reconsider in light of Carey v. Musladin (2006) 127 S.Ct. 649, the Ninth Circuit Court of Appeal panel stands by its decision that no rational trier of fact could have found that the petitioner caused the child's death.

In this case, the prosecution experts' opinion that shaking caused death was "wholly unsupported" by the physical evidence.

Smith v. Patrick (9th Cir. 12/4/07, 04-55831) 07 C.D.O.S. 13785

December 4, 2007

KATRINA EVACUEES STATED A CLAIM WHEN ORDERED OFF A BRIDGE BY ARMED COPS

Plaintiffs and their children were staying at a hotel in New Orleans only from Algiers on the West Bank when Katrina hit and then the city flooded. By September 1st, the hotel they were in was running out of food and fuel, and the hotel asked them to evacuate. Their car was in the hotel's flooded garage, so they decided to walk home over the bridge. They were ordered back into New Orleans at gunpoint by Gretna police, notwithstanding their attempt to show they lived where they were walking to. They sued under various theories, and they stated a denial of interstate travel and a Fourth Amendment claim that survives a motion for to dismiss.

Cantwell v. City of Gretna, 2007 U.S. Dist. LEXIS 88156 (E.D. La. November 30, 2007):

The defendants contend that the facts do not state a claim for relief for a violation of the plaintiffs' rights under the Fourth Amendment. The defendants contend that the plaintiffs have not alleged any use of force and that the "threat of force" by pointing a gun as a deterrent does not allege a constitutional violation. The plaintiffs argue that the defendants violated a liberty interest guaranteed under the Due Process Clause of the Fifth and Fourteenth Amendment when they physically restrained them from crossing the bridge.

. . .

"The first inquiry in any § 1983 suit" is "to isolate the precise constitutional violation with which [the defendants] are charged." Baker v. McCollan, 99 S.Ct. 2689, 2692 (1979). Historically, "[t]he liberty preserved from deprivation without due process included the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Ingraham v. Wright, 97 S.Ct. 1401, 1413 (1977). "While the contours of the historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment." Id. at 1413-14.

A seizure occurs when government actors have "by means of physical force or show of authority, ... in some way restrained the liberty of a citizen." Terry v. Ohio, 88 S.Ct. 1868, 1879 n.16 (1968). In Graham v. Connor, 109 S.Ct. 1865, 1871 (1989), the Supreme Court explicitly held that a claim that arises in the context of the restraint of liberty of a free citizen is properly characterized as one invoking the protections of the Fourth Amendment and is analyzed under the reasonableness standard. "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Id.; see also Saucier v. Katz, 121 S.Ct. 2151, 2158 (2001) (analysis is under Fourth Amendment standard, not substantive due process principles).

The Due Process Clause is not implicated in this case. There are no issues concerning procedural due process, and a substantive due process analysis is not appropriate. Accordingly, the defendants' motion to dismiss the claims under the Due Process Clause of the Fifth and Fourteenth Amendments is granted.

Notwithstanding, the plaintiffs have alleged facts beyond a speculative level that a violation of the Fourth Amendment could have occurred, based simply on the general rule prohibiting excessive force in restraining the liberty of a citizen. See Saucier v. Katz, 121 S.Ct. at 2159. Accordingly, the allegations plausibly suggest a right to relief, and the defendants' motion to dismiss the Fourth Amendment claim is denied.


December 4, 2007

CALIFORNIA "SHAKEN BABY" MURDER CASE REVERSAL UPHELD

SAN FRANCISCO (AP) - A federal appeals court that last year overturned the conviction of a woman accused of shaking her grandson to death has upheld its decision.

Shirley Ree Smith was convicted in December 1997 and was sentenced to 15 years to life at a women's state prison in Chowchilla.

During her trial, experts for both sides gave conflicting testimony about the 7-week-old boy dying from being shaken, from sudden infant death syndrome or from an old brain injury that re-bled.

After reviewing that evidence, a three-judge panel of the 9th Circuit U.S. Court of Appeals decided that shaken baby syndrome "was wholly unsupported by the physical evidence" and overturned Smith's conviction.The state appealed, sending the case to the U.S. Supreme Court, which urged the federal appeals court to review the case again.

On Tuesday, it reaffirmed its decision.

Smith v. Patrick, 2007 DJ DAR 17841, DJ, 12/5/07

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December 3, 2007

HANDCUFFING 11-YEAR-OLD CHILD STATED A CLAIM FOR EXCESSIVE FORCE

On rehearing from a prior holding, 457 F.3d 1088 (9th Cir. 2006), the Ninth Circuit held that pointing a gun at the head of an 11 year old boy clad only in shorts and a t-shirt, then handcuffing him during a search of a house he already had come out of stated a Bivens claim because he clearly posed no threat.

Tekle v. United States, 04-55026 (December 3, 2007):

[3] Here, viewing the facts in the light most favorable to Tekle, approximately twenty-three armed officers saw a barefoot, eleven-year-old boy, clad in shorts and a t-shirt, emerge from his home. Although he tried to return to the house after hearing the initial “intercom,” he then stopped and cooperated. He did not attempt to flee, nor did he resist them, but he complied with their requests, lying face down on the driveway. He was unarmed. The officers then held a gun to his head, searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes. Only after they removed his father from the home in handcuffs did they remove the handcuffs from Tekle. They then sat him on a stool, with their guns still drawn, for another fifteen to twenty minutes. We conclude under these circumstances that the amount of force used against Tekle constituted a “‘very substantial invasion of [his] personal security.’” Id. at 1015 (quoting Baker, 50 F.3d at 1193). Consequently, this factor weighs in favor of Tekle.

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[4] Turning to the second and most important factor, we conclude that “the need for the force, if any, was minimal at best.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003). All the factors to be considered in determining the need for the force weigh in favor of a finding that the need for force was minimal. First, Tekle clearly was a child and was not the subject of the arrest warrant. Tekle was unarmed and vastly outnumbered and did not pose an immediate threat to the officers’ safety. He did not actively resist arrest or attempt to flee. Under these circumstances, even if the officers needed to secure Tekle in order to execute the search and arrest warrants, it should have been apparent that this eleven-year-old boy did not pose a threat and that the need for force accordingly was minimal. Cf. id. (finding the force excessive where the officer threw the plaintiff to the ground and handcuffed her, despite the fact that she posed no safety risk and made no attempt to leave the property); yBaldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 2005) (stating that the governmental interests in using handcuffs were at a minimum when there was no indication that officers believed the suspects would flee or be armed), cert. denied, 126 S. Ct. 1331 (2006); Wall v. County of Orange, 364 F.3d 1107, 1111-12 (9th Cir. 2004) (reversing the grant of summary judgment where the deputy violently arrested the plaintiff, handcuffing his hands tightly, even though there was no probable cause for arrest and the plaintiff was following the deputy’s instructions).

[5] Balancing the force used against the need, we conclude that, “when the disputed facts and inferences are treated in the manner required by law, a jury could properly find” that the force used was “greater than [was] reasonable under the circumstances.” Santos, 287 F.3d at 853, 854. There were over twenty officers present at the scene, and Tekle was not suspected of any crime. He was cooperative and unarmed and, most importantly, he was eleven years old. A reasonable agent confronted with these circumstances should have known that there was no need to use guns and handcuffs. Yet, the officers kept Tekle handcuffed and pointed their weapons at him even after it was apparent that he was a child and was not resisting them or attempting to flee. Moreover, Tekle has alleged that an officer pulled him up from behind by the chain of the handcuffs, an act which, if true, could support a jury finding of excessive force. We understand that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Nonetheless, we are convinced, if only by the sheer number of officers versus the one, clearly unarmed, barefoot child that a reasonable jury could find that the officers used excessive force.

December 3, 2007

MAXIMUM SENTENCE AFFIRMED IN CALIFORNIA DUI HOMICIDE OVER CUNNINGHAM OBJECTION

Note: This is another Unpublished opinion showing the insurmountable obstacles DUI defendants must rise above to gain some justice.

Defendant John Randolph Shanks entered a negotiated plea of no contest to evading a pursuing peace officer, a felony (California Vehcile Code §2800.2), and driving under the influence of alcohol and/or drugs, a misdemeanor (VC §23152(a)).

In exchange for the pleas and a Harvey waiver (People v. Harvey (1979) 25 C3d 754), another count and a prior prison term allegation were dismissed.

The trial court sentenced defendant to the upper term of three years in state prison for evading a pursuing peace office and a concurrent term of six months in jail for driving under
the influence of alcohol and/or drugs.

On appeal, defendant contends that the upper term sentence contravenes the holding of Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (hereafter Cunningham). Defendant acknowledges that we are bound by the California Supreme Court’s holding in People v. Black (2007) 41 Cal.4th 799 (hereafter Black II) but raises the issue to preserve it for federal court review.

We shall affirm the judgment.
…………………………………..
Here, in imposing the upper term, the trial court found in aggravation that (1) defendant’s prior convictions were numerous, (2) he had served prior prison terms, (3) he was on parole at the
time of the offense, and (4) his prior performance on probation or parole was unsatisfactory. In mitigation, the court found that “defendant acknowledged guilt early on and that the defendant
suffered from mental illness and drug and alcohol addiction in the past.”

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December 2, 2007

BALTIMORE MURDER CONVICTION REVERSED FOR USE OF FAULTY BULLET EVIDENCE

A Murder Conviction Torn Apart by a Bullet
In a 1995 Maryland Case, Key Testimony and the Science Behind It Have Been Discredited

By John Solomon
Washington Post Staff Writer
Monday, November 19, 2007; Page A01

Former Baltimore police sergeant James A. Kulbicki stared silently from the defense table as the prosecutor held up his off-duty .38-caliber revolver and assured jurors that science proved the gun had been used to kill Kulbicki's mistress.

"I wonder what it felt like, Mr. Kulbicki, to have taken this gun, pressed it to the skull of that young woman and pulled the trigger, that cold steel," the prosecutor said during closing arguments.

Information from Joseph Kopera, who worked as a firearms expert for the Maryland State Police, was used to convict James A. Kulbicki of murder.

Prosecutors had linked the weapon to Kulbicki through forensic science. Maryland's top firearms expert said that the gun had been cleaned and that its bullets were consistent in size with the one that killed the victim. The state expert could not match the markings on the bullets to Kulbicki's gun. But an FBI expert took the stand to say that a science that matches bullets by their lead content had linked the fatal bullet to Kulbicki.

The jurors were convinced, and in 1995 Kulbicki was convicted of first-degree murder in the death of his 22-year-old girlfriend. He was sentenced to life in prison without the possibility of parole.

For a dozen years, Kulbicki sat in state prison, saddled with the image of the calculating killer portrayed in the 1996 made-for-TV movie "Double Jeopardy."

Then the scientific evidence unraveled.

Earlier this year, the state expert committed suicide, leaving a trail of false credentials, inaccurate testimony and lab notes that conflicted with what he had told jurors. Two years before, the FBI crime lab had discarded the bullet-matching science that it had used to link Kulbicki to the crime.

Now a judge in Baltimore County is weighing whether to overturn Kulbicki's conviction in a legal challenge that could have ripple effects across Maryland. The case symbolizes growing national concerns about just how far forensic experts are willing to go to help prosecutors secure a conviction.

"If this could happen to my client, who was a cop who worked within this justice system, what does it say about defendants who know far less about the process and may have far fewer resources to uncover evidence of their innocence that may have been withheld by the prosecution or their scientific experts?" said Suzanne K. Drouet, a former Justice Department lawyer who took on Kulbicki's case as a public defender.

Prosecutors are fighting to uphold Kulbicki's conviction, arguing that there is still plenty of evidence that proves his guilt.

"While much of the evidence against the petitioner falls into the category of circumstantial evidence, the state presented a mountain of evidence, both direct and circumstantial," prosecutors argued in a motion earlier this year opposing Kulbicki's request for a new trial.

Police had lots of circumstantial evidence. A jacket with the victim's blood on the sleeve was found hanging in Kulbicki's closet. And four bone chips and a bullet fragment were found in his truck. Tiny drops of blood also were found in the truck, and one spot of blood on the holster of his off-duty weapon. But the blood spots were so small and their quality so poor that they could not be matched to the victim.

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December 2, 2007

CALIFORNIA DUI DEFENSE: INHALERS CAN GIVE FALSE POSITIVES IN DUI BREATH TESTS: CALIFORNIA DUI ATTORNEYS BEWARE

California DUI lawyers beware of a new study showing asthma inahlers can give false readings on DUI breath tests.

Spanish researchers have shown that asthma inhalers can give readings in breath alcohol tests that are, in most cases, above the legal limit fixed by Spanish traffic police. Most worrying is the fact that aerosols without ethanol as the vehicle produced false positive results, says University of Cádiz pharmacologist Juan Manuel Ignacio-García, lead author of the report (Medicina Clinica 2002;118:332-4).

The study was on 60 volunteers with asthma attending the Hospital Comarcal de Ronda in Cádiz. Ten minutes before the participants were given an inhaler to use, they underwent a breath test on the Alcotest 7110-E device, an infrared breath alcohol analyser manufactured by Dräger, based in Lübeck, Germany, and widely used in Spain and France. The researchers then studied the effects on further test readings of different inhalers containing salbutamol, salmeterol, formoterol, budesonide, and fluticasone, administered as two puffs, in homogeneous groups of five patients.

Readings were taken at 1, 2, 3, 5, and 10 minutes after puffing. At baseline all readings were negative, but all the inhalers resulted in positive readings in the first few minutes after administration, the values decreasing rapidly and linearly to zero at 10 minutes.

The mean readings for salbutamol, salmeterol, and budesonide were 0.45, 0.44, and 0.32 mg of alcohol per litre of air, respectively, at one minute. At three minutes these values were 0.08, 0.09, and 0.07 mg/l. In France and Spain the maximum permitted level of alcohol is 0.25 mg/l. In Britain it is 0.35 mg/l.

The researchers then compared the effects of inhalers with and without alcohol as a vehicle in two groups of five patients. Each group was administered two puffs of either Butoasma (salbutamol with ethanol) or Ventolin (salbutamol without ethanol). No significant differences between the groups were found at baseline.

At one minute, the mean readings on the breath test were 0.45 mg/l (SD 0.17) in the patients who were given Butoasma and 0.35 (0.21) in patients given Ventolin.

Dr Ignacio-García says the only confounding factor that could have led to the false positive result in the study was the propellant gases used in the aerosols, in particular chlorofluorocarbons. He says the next challenge is to find out what happens with puffer devices that don't use propellants—for example, dry powder inhalers (Accuhaler, Diskhaler, and Turbohaler

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