November 27, 2013

MARY PREVOST'S DUI BLOG: HOW TO AVOID A DUI THIS HOLIDAY SEASON

I write and re-write this article every season and every year. But time and time again I see friends and people I know who have read it coming to me because they got arrested in San Diego, Orange County, Imperial County, Riverside, San Bernardino or Los Angeles for a DUI.

Okay, think about it... How smart is it to drive a two-ton killing machine through the streets with, say, a .16 blood alcohol level? Not very. In fact, it is inherently dangerous for you and everyone in your vicinity. How about.... How smart is it to take a cab instead of driving? How about, since it's the holiday season and we all know we are going to imbibe, just plan to take a cab from the start? Yes, now we are getting smarter.

Yes, think about it. A GOOD DUI attorney will charge you about $5,000 or upwards pre-trial to work up your DUI case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless misdemeanor on a high blood alcohol DUI with a prior conviction, and prior to that, for a misdemeanor on a DUI with injury case that was originally charged as a felony. But those took a lot of time, a lot of work, and aren't the norm. I recently sued San Diego's top DUI cop in federal court and won a settlement from the City because the cop falsified the basis for his stop. Yes, there are cheap attorneys out there and they will always claim to do cheaply what the best of us do for the cost of our experience. But you get what you pay for. I personally don't hire doctors that hawk themselves as "cheaper than the other guy." Nor would I ever hire an attorney that hawks himself for cheap.

Some California DUI cases can be won. Some California DUI cases cases can't be won. It depends on how competent your lawyer is, how the cop did the investigation, if the machines used were properly calibrated, and what you said at the time of the investigation, amongst other things.

Remember, anyone with a law license from the State of California can take your money and represent you on a DUI. That doesn't mean that they know what they are doing. Would you request advice from a novice if you had cancer? Of course not.

Now, if you haven't read it before, read it now. And if you have read it before, read it again. This article is chock full of info on what to do if you get stopped for a DUI and arrested.

It's starting now. Police agencies all over California 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 holiday weekend.

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1. If you drive in California during the holidays, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. DUI officers historically write in their California 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 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 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 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. 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 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. That's when you DO have to take a test. Don't refuse. Your license in California will be suspended for a 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, law enforcement labs 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 sanitation protocol in place. Why risk infection? (See, article on frightening practices in the San Diego crime lab).

If you are arrested in San Diego, 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 damaging evidence against you. And when you get home call this Southern California DUI Defense lawyer. DUI Defense is hard. But it's not impossible.

November 24, 2013

MARY PREVOST'S BLOG: SEEKING WITNESSES OF FALSE ARREST/ABUSE BY SANTA MONICA POLICE OFFICER KOBY ARNOLD

If you have been falsely arrested or abused by Santa Monica Diego Police Officer Koby Arnold, please call Attorney Mary Prevost at (888) 384-1384.

Koby Arnold, pictured HERE, is the rogue officer who falsely arrested Sennett Devermont, also known as MrCheckPoint, for "Drunk Driving" even though he had not had a single drink. Koby Arnold then falsified his police reports to suggest Sennett was driving impaired by drugs. Again, not at all. Blood test? Clean for alcohol and clean for controlled substances. Oops. I mean, Koby Arnold KNEW Sennett Devermont wasn't drunk, but hauled him into court solely because he stood on his right not to talk to the cop, or do his field coordination tests. Arnold got animal control to come and take Sennett's terrified dogs to the pound, and threatened to have them adopted. What a gem.

And so Koby Arnold engaged in an attitude arrest, and he thought he could get away with it.

Now, had we been back in the 90's, Koby Arnold could walk free from the allegations Sennett has levied against him - specifically false arrest and excessive force. But, we are in the era of technology. Sennett recorded the transaction, and we have caught Officer Arnold admitting that he would falsely arrested Sennett because he had "nothing" when Sennett exercised his right not to talk to the bad copper. Want to hear the audio? Click on HERE.

And it's not the first time that Koby Arnold has gone rogue on the Santa Monica Police Department. Oh no. Click HERE for the LA article on the $99,000 settlement City of Santa Monica had to pay out to another man Arnold jumped from behind and beat up.

And, yet, the City Attorney of Santa Monica is again protecting the rogue cop.

November 21, 2013

Law Offices of Mary Prevost: CALIFORNIA COURT REVERSES VANGELDER....BUT THERE'S A SILVER LINING.

This morning People v. Vangelder came down. it was argued by Chuck Sevilla.

The Court reversed the Court of Appeal which had reversed a DUI conviction for excluding an expert who would have testified that the breath test machines used: 1) measure no alveolar air, and 2) had unreliable test result from variable in the breath sample due to factors like breathing
variations, temperature of the lung air, etc.

The Court ruled that 1) the Title 17 regulation requiring "essentially alveolar air" to be measured merely means to test the last expired breath. (See p. 45, et seq --you read that right). 2) The Court ruled that variables that alter breath alcohol out the mouth were close enough to
partition ratio rules (despite the expert's testimony that he was not comparing blood/breath ratios) to warrant exclusion also under that doctrine. (p. 49.)

They do all this because the state adopted the fed regulations for approvals of machines and since the machines are federally approved, this creates an irrebuttable presumption of accuracy. (See p. 46, you read that right). In other words, there can be no global attacks on approved breath machines because that would have the witness "nullifying the legislature." (You read
that right, see pp. 45-46).

AN AREA FOR LITGATION: The court finds that approved PAS machines are evidential breath tests. See p. 40, fn 23. This may give rise to the defense later that any subequent test must be suppressed (per Fiscalini) as being unnecessary and without justification.

November 6, 2013

Law Office of Mary Prevost: SAN DIEGO CITY COUNCIL REFUSES TO PUBLICLY APPROVE SETTLEMENT FOR VICTIM OF SDPD OFFICER AREVALOS--CANCELS PUBLIC SESSIONS AND GOES ON VACATION INSTEAD

Last month, and after two long years of harassment by the Office of the City Attorney who tried and tried and tried to protect imprisoned sexual predator cop Anthony Arevalos, the City finally settled the brutal sexual assault case for $795,000. See,http://www.10news.com/news/anthony-arevalos-victim-city-of-san-diego-reach-795k-settlement-092713

All that was left to do was put it on calendar for a public vote. But the City had already pre-approved the settlement. It would take about 30 seconds to close the case.

Now, the City Council is compounding the victim, Jane Roe's, pain and agony. It's bad enough City tried to paint her as a whore in an attempt to protect its imprisoned sexual predator cop. It's bad enough she had to endure probing questions in deposition from Arevalos' chubby misogynisitic attorney demanding to know at what age did she start drinking, as though that were a defense to the cop fisting her in the back seat of the car. It's bad enough she had to endure vile questions from Deputy City Attorney Keith Phillips, "Were you wearing booty panties or thongs the day you claim you were assaulted?"

Now that the victim can begin the long road to recovery, City has decided to cancel all public meetings thus dragging, dragging, dragging out the pain and suffering this young woman has had to endure.

This is what the City has put out:

“The City Council meetings of November 11-12, 2013, November 18-19, 2013, November 25-26, 2013, and December 2-3, 2013, have been adjourned, pursuant to the 2013 Legislative Calendar, adopted by Resolution R‑307832 on November 13, 2012.”

So what happens to the Court order requiring City to provide the victim her check on November 25? What happens to the house she has chosen to buy? Perhaps the City would like the victim to reject the settlement and proceed, and thereby put the City in jeopardy of a huge trial judgment?

it is remarkable how callous the City is with the rights of victims of police brutality. Shame on your City Council.

November 1, 2013

Law Offices of Mary Prevost: Prosecutorial and Judicial Misconduct Merge, But Justice is Done

Amado v. Gonzales, _F.3d_; No. 11-56420 (9th Cir. Oct. 30, 2013).

This was a state murder conviction for which the defendant got 27 years to life. It arose out of LA and involved a gang motivated killing involving the Bounty Hunter Bloods and the rival 118 East Coast Crips. One day, a group of Crips got on a bus and one of them opened up with a gun and shot up the bus full of Bloods. Result, one dead and one wounded. Amado was arrested as one of the Crips who took a gun to the scene. But only a witness named Hardy ID'd him as the guy with the gun.

The Brady violation: after trial the defense discovered Hardy: 1) had a prior conviction for robbery, 2) was currently on probation for that robbery when he testified; and 3) he was a former Blood gang banger himself with an arguable motive to testify against a Crip defendant.

John Lanahan did the appeal in State court and then filed the federal habeas on a pro bono basis in the Central District. The Superior Court had found at the motion for new trial that the DA should have turned over the evidence but found it was not material (!!!) and denied the motion
for new trial. The State Court of Appeal, Second District, Div. 1, found the evidence was material but then found the client's lawyer was not diligent in asking for it, so no Brady violation. (Huh?)

In federal court, the U.S. magistrate judge recommended IN THE SUMMER OF 2003, that the petition be granted. That recommendation sat before federal district court judge Percy Anderson in the Central District for eight and one-half years. Only after the LA Daily Journal and the LA
Times wrote about Anderson's proclivity not to adopt or reject the magistrate recommendations that recommended petitions be granted, did he finally get around to deny the petition and reject the Magistrate recommendation (in July, 2011.)

John appealed it and argued in January before Circuit Judges William Fletcher and Johnny Rawlinson and district court judge Hellerstein from SDNY. Hellerstein wrote the reversal (Rawlinson dissented). Fletcher was the deciding vote. The Opinion has some food for AEDPA mavens, but the bottom line is this travesty is corrected finally 15 years after the conviction, 8 of those years wasted when the federal district court let the proper Magistrate recommendation for relief languish in his chambers.

For his dedication, tenacity and brilliance (and delivering us a nice published Brady case), great job John!