July 30, 2009

I WANT MY LAWYER! NOT GOOD ENOUGH FOR MIRANDA

The police, investigating a robbery, wind up at the defendant's residence. They know he's on parole. They arrest him for a parole violation. They do NOT advise him of Miranda; he says, "Well, I want a lawyer. Right now."

They bring him to the police station, advise him of Miranda, and he waives and confesses. The Court of Appeal holds that the defendant didn't effectively invoke his Miranda right to counsel because he wasn't about to be interrogated and you can't invoke Miranda anticipatorily.

People v. Buskirk; 2009 DJ DAR 10941; DJ, 7/27/09; C/A 4th

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July 30, 2009

San Dieego Dui Defense: San Diego County is Not one of the Counties that will Initiate a First Offender Ingition Interlock Device

The California Senate Public Safety Committee has cleared a bill which would require four counties to require first time DUI offenders to install Ignotion Interlock devices after conviction. The counties are Sacramento, Los Angeles, Alameda and Tulare.

Note: There is a clear equal protection issue here. Additionally, the bill requires outside funding to take effect. We suspect a big attack on this by defense counsel.

http://http://www.prlog.org/10276694-california-ignition-interlock-bill-ab-91-clears-senate-public-safety-committee.html

July 10, 2009

SAN DIEGO DUI DEFENSE: PARTITION RATIO DEFENSE LIVES! AT LEAST ON A CHARGE OF DRIVING UNDER THE INFLUENCE

A breath test measuring alcohol involves a conversion from breath to blood; that conversion is the partition ratio. The machine testing the breath is set with a standard, which is supposedly the human average: 2100 to 1.

But it turns out that partition ratios vary among people.

In Bransford (8 Cal.4th 885), the Cal. Supremes held that any evidence of variation was irrelevant to a charge of driving at or above .08, thereby barring the defense from presenting any evidence of variations in partition ratios.

But what about the (a) count? The Cal. Supremes hold, "If the defendant in a section 23152(a) case offers competent evidence showing that the use of a 2,100-to-1 conversion ratio may have yielded an inaccurate representation of his blood-alcohol level, introduction of this evidence is permissible."

So you CAN defend a DUI charge with a partition ratio defense; you just can't defend a .08 charge.

People v. McNeal; 2009 DJ DAR 10127; DJ, 7/10/09; Cal. Supremes

July 3, 2009

CALIFORNIA DUI: SAN BERNARDINO ANNOUNCES JULY 4 CRACKDOWN ON DRUNK DRIVERS

San Bernardino County Announces July 4th Crackdown On Drunk Drivers

County Statistics Showing Holiday Period is a Deadly One on U.S. Roads

Victorville: Avoid the 25 DUI Campaign Task Force today announced its deputies will be out in full force during the Fourth of July holiday period, cracking down on impaired drivers with an aggressive Drunk Driving, Over the Limit, Under Arrest enforcement blitz.

At least two DUI /Driver’s License checkpoints will be conducted in the High Desert over the weekend in addition to extra deputies for saturation patrol.

5-26-2006_DUI_CkPoint.jpg


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July 1, 2009

HOW TO AVOID A DUI ARREST THIS JULY 4TH WEEKEND

It's starting now. Police agencies all over San Diego are setting up roadblocks, and putting officers on overtime, to make as many DUI arrests as possible. Hopefully, the tips below will come in handy for you over this Fourth of July holiday.

1. If you drive in San Diego during the Fourth of July holiday, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. San Diego DUI officers historically write in their San Diego DUI reports (putting only facts that harm you in them) that the suspect "fumbled for his wallet" and couldn't find his registration. They use this to try to show you were impaired. Be prepared.

2. When you get signaled by the San Diego DUI officer to pull over for a DUI assessment, do so immediately and safely. Roll down your window and put your hands on the steering wheel.

3. If a San Diego DUI officer asks you if you know why you are being pulled over, remember you don't have to answer. What a dumb question! He knows why he is pulling you over. He is pulling you over to assess you for drunk driving, and he's using the fact that you might have committed some minor vehicle code violations as an excuse. Don't make any admissions to him. So, you can just ask him, "why?"

4. The next question the San Diego DUI officer is likely to ask is, "Have you had anything to drink tonight." Remember your rights? You are not required to speak to officers. I know, I know, you think, "But if I don't talk to the officer, he will be mad." Let him be. You are not at a social gathering; he is not invited to your next birthday party. So don't worry about how he feels. He is collecting evidence against you. Don't give him any. It is best to say, "Officer, I appreciate what you do for a living, but I don't wish to answer any of your questions." You do NOT have to answer. The less from you he gets, the better for you in the long run. He is gathering evidence. But, you say, maybe he will let me go if he knows I'm being honest with him. NO. Most people who are pulled over and have alcohol on their breath get arrested. It's just a fact of life. Don't give him anything to put in that report that he can use against you later.

5. He may then say, "I'd like you to complete a series of tests for me." Again, let him know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give a series of field tests to determine if you are impaired. I have NEVER known any officer to do these as per the standardized protocol. I hold a certification authorized by the United Stated Department of Transportation to administer these tests, and was required to pass a practical and written test to get that certification given by a nationally re-known sergeant with the Idaho State Police. Cops learn how to do these, and then promptly forget them, making up their own "tests." Do not do them. Do NOT let the officer collect more false "evidence" against you. Just reiterate that you do not wish to perform and tests. It's your right.

6. The San Diego DUI investigation officer may then tell you he wants you to take an in field breath, hand held, breath test. Do not take this "test." It is unreliable, and regularly exhibits blood alcohol numbers higher than what you really are. The cop really, really wants you to do this now, because you have made no statements, and you have refused his field "tests." He wants this badly. He NEEDS some evidence. Do not do it. You are NOT required to blow into the little hand held machine.

7. The officer will most likely arrest you, cuff and take you downtown. You will be required to take a breath or blood test. You must choose to take one of these tests, or he will take what is called a "forced blood test" and your driver's license will be suspended for a full year.

A few pointers: If you are still absorbing alcohol, the breath test will read high. It is also an INDIRECT measurement of blood alcohol level. If you take blood, you won't get a result for at least a week. Also, SDPD and Sheriff's don't use the proper amount of sodium fluoride and potassium oxalate in the blood tubes, so you can attack those results later. Personally, I wouldn't let anyone hired by the city or county to draw my blood, after learning all I know about the incompetence of the people drawing the blood, and the lack of sanitations protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested, you will be released within 12 hours on your promise to appear. You will received a pink piece of paper called a "DS-367." This document tells you that you, or your lawyer, must call the Department of Motor Vehicle within ten days of the arrest to secure a hearing to determine whether or not the DMV will take your license. Do not miss this deadline or you will be suspended automatically.

So, be careful. Don't drink and drive if you can help it. Drive safely. Don't talk to cops. Be polite, but do not let them gather inculpatory evidence against you. And when you get home call this San Diego DUI Defense lawyer.

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