California Criminal Lawyer Blog

The head of the state labs in Washington that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

Continue reading "CALIFORNIA DUI DEFENSE NEWS: CRIME LAB CHIEF RESIGNS OVER PROBLEMS RAISED ON FAULTY DUI EVIDENCE" »

Seattle, Washington:

The head of the Washingtin state labs that test crime evidence is stepping down, a move that prosecutors and defense lawyers say could help bring back lost confidence in the way drunken-driving cases are handled around the state.

Barry Logan's resignation, effective March 14, comes after a series of problems at the Washington State Patrol toxicology lab have cast doubts on breath tests for suspected drunken drivers.

"Barry has done an excellent job of addressing the issues during this difficult period," State Patrol Chief John Batiste said. "But he and I agree that forward momentum will require different leadership."

The decision stunned attorneys who have worked with Logan on criminal cases and saddened his staff, leaving some in tears, but the lab has drawn stinging criticism about errors and ethical problems in recent months.

"Too many things went wrong on his watch," said defense attorney Francisco Duarte, who specializes in DUI cases. "I believe he wanted to run a laboratory that was based on integrity -- and ultimately, he failed to do so."

DUI attorney Ted Vosk, who has worked to uncover problems at the lab and has persuaded judges to throw out many breath-test results, said he believed Logan's departure was appropriate.

"His stepping down now seems to represent, at least in my mind, that we were right," Vosk said.

Continue reading "WASHINGTON STATE CRIME LAB CHIEF RESIGNS AFTR PROBLEMS RAISED ON DUI EVIDENCE" »

JUVENILE SUSPENSIONS OR DELAYS OF DRIVER’S LICENSE -- The below is a comprehensive listing of vehcile code violations that will cause a juvenile's driver's license to be suspended.

NOTE: Delays are from date of eligibility to obtain a driver’s license

1) MANDATORY SUSPENSIONS: a) Note that a mandatory suspension is not also a mandatory delay unless noted
b) VC § 13202.5 Suspended or delayed for 1 year
i) Business and Professions Code
(1) Purchase or sale of alcohol § 25658
(2) Attempt to purchase alcohol § 25658.5
(3) False ID § 25661
(4) Minor in possession § 25662
ii) Possession or being under the influence of controlled substances HS §§ 11000 et seq
(1) Includes possession of less than an ounce of marijuana
iii) Drunk in public PC § 647(f)
iv) Alcohol related Vehicle Code violations
(1) “Wet reckless” §§ 23103/23103.5
(2) Minor driving with 0.05 BAC §§ 23140
(3) Drunk Driving
(4) Possession of alcohol of less than an ounce of marijuana in a vehicle§§ 23222, 23223, 23224, 23225, 23226
(5) Refusal to take test §23557
c) Vandalism VC § 13202.6
i) Suspension for not more than 2 years
ii) Delay for not less than one year nor more than three years from eligibility date
iii) Can work off suspension
(1) 1 hour Community Service for a day suspension/delay
(2) 1 day for a day if County has adopted a Graffiti Abatement Program (PC § 594 (f))
d) Felony ADW with a vehicle VC § 13351.5
i) Life time suspension
e) Vehicular Manslaughter
i) Gross Vehicular Manslaughter PC § 191.5
ii) DUI related PC § 192(c)(3)
iii) DUI boat related PC § 192.5(c) or (d)

2) DISCRETIONARY SUSPENSIONS
a) For any reason the court can support with facts WIC § 730
b) Suspension cannot be for more than 1 year
i) In re Colleen S. (2004) 115 CA4 471
ii) VC § 13556
c) License suspension on conviction of specified misdemeanors VC § 13201.
i) For not more than six months
ii) Offenses
(1) Hit and run VC 20002.
(2) Reckless driving proximately causing bodily injury to a person under § 23104 or 23105.
(3) Failure of the driver of a vehicle to stop at a railway grade crossing as required by § 22452.
(4) Evading a peace officer in violation of §§ 2800.1, 2800.2, or 2800.3
d) Auto Theft (VC § 10851) VC § 13357.
i) VC § 13357 only mentions suspension so I contend that the court can’t delay a CDL.
e) Speeding or reckless driving VC § 13200.
i) Not to exceed 30 days upon a first conviction,
ii) For a period of not to exceed 60 days upon a second conviction,
iii) And for a period of not to exceed six months upon a third conviction
f) Driving in excess of 100 miles per hour VC § 13200.5.
i) Violation of subdivision (b) of VC § 22348
ii) Not to exceed 30 days.
g) Conviction of minor for offense involving concealed firearm VC § 13202.4.
i) May suspend the minor's driving privilege for five years.
ii) May delay for five years subsequent to the time the person becomes legally eligible to drive.
iii) For each successive offense, may suspend or delay for one additional year.
iv) Minor may reduce suspension time by performing community service
(1) At least 50 percent of the suspension or delay period has expired.
(2) The person has not been the subject of any other criminal conviction during the suspension or delay period.
(3) Reduced at the rate of one day for each hour of community service performed.
h) Truancy VC § 13202.7
i) Up to one year suspension or delay
i) Road Rage VC § 13210.
i) Conviction of PC § 245
ii) Up to 1 year first offense, 2 years subsequent offense

3) REQUIREMENT OF JUVENILE COURT “FINDING”
a) VC § 13105 requires a “finding” by the Juvenile Court that a juvenile has committed an offense.
b) A “finding” by the juvenile court is made on Disposition (WIC § 725)
c) DEJ pursuant to WIC §790 is not a “finding”
i) “A minor's admission of the charges contained in the petition pursuant to this chapter shall not constitute a finding that a petition has been sustained for any purpose, unless a judgment is entered pursuant to subdivision (b) of Section 793.

Continue reading "JUVENILE SUSPENSIONS OR DELAYS OF DRIVER'S LICENSES" »

A group of judges in New Hampshire was served several alcoholic drinks as part of an experiment that was intended to demonstrate the effectiveness of the Breathalyzer. One judge was given so many drinks that he became visibly intoxicated. When the judge blew into the Breathalyzer, the machine registered a score of 0.0. After a few more tries, the Breathalyzer gave the same result. Following the demonstration, at least one police jurisdiction in the state ceased using the Breathalyzer in favor of blood tests. (See Margaret Graham Tebo, New Test for DUI Defense, ABA Journal (Feb. 2005).)

The Breathalyzer is by far a less accurate test than a blood test. A blood test actually measures blood alcohol concentration (BAC). But a Breathalyzer merely estimates it. It measures "breath" alcohol concentration, and requires a difficult mathmatical conversion to correlate it to a "blood" alcohol concentration.

What the Breathalyzer attempts to measure is the presence of chemicals found in alcohol. But the machine often measures chemicals with molecular structures similar to those found in alcohol. There are, in fact, there are numerous chemical compounds that can fool a Breathalyzer machine.

According to Dr. David Hanson, Over 100 compounds can be found in the human breath at any one time, and 70 to 80 percent of them contain [a] methyl group structure and will be incorrectly detected as ethyl alcohol. (See David Hanson, Ph.D., Breath Analyzer Accuracy, at http://www2.potsdam.edu/hansondj/DrivingIssues/1055505643.html.) As a result, false positives can occur for a plethora of reasons.

Body chemistry is one factor that can lead to false positives. People with diabetes, acid reflux disease, or some cancers can fail Breathalyzer tests even if their bloodstreams are perfectly free of alcohol. Diabetics, for example, have extraordinarily high levels of acetone, a substance that some breath machines mistake for ethyl alcohol.

Police recognize that regurgitation can render unreliable the results of a Breathalyzer. Thus, most departments require that the arresting officer observe the subject of a breath test for a period of time prior to administerting the test. In California, police should watch the suspect for at least fifteen minutes to make sure he or she did not burp, hiccup or regurgitate prior to applying the test. Regurgitation includes any instance of fluids or gases that rise through the esophagus.

In 2004, the Illinois Supreme Court ruled inadmissible the results of a breath test where the defendant presented evidence of gastroesophageal reflux disease (GERD). In People v. Bonutti, 817 N.E.2d 489 (Ill. 2004), the defendant had blown a BAC of 0.174 after being stopped and showing outward signs of intoxication. Defendants motion to suppress the Breathalyzer evidence was granted because the court found that the results could have been compromised by a silent, unobservable episode of reflux.

Two years ago, when I attended the Intox 8000 Certification seminar in New Orleans (the San Diego Police Department had just implemented the machine), I was able to get a Fort Lauderdale judge who was acting as a guinney pig for us to blow a .20 breath alcohol level using the Intox 8000 machine. His true blood alcohol level at the time was .02 (he had one drink in him). I got the machine to measure a breath alcohol concentration of ten times the actual true blood alcohol level. How? I just manipulated the machine and the judge's breathing techniques.

If you think I can do this, imagine the flawed results an inexperienced cop might use against you?

Continue reading "SAN DIEGO DUI DEFENSE: BREATHALYZER TESTS ARE AN INACCURATE MEASUREMENT OF BLOOD ALCOHOL CONTENT" »

CALIFORNIA WOMEN'S DUI DEFENSE NEWS: Having A “Diet Cocktail” on your girls’ night out may be a good way to cut calories, but the unknown consequences can be earth shattering if you’re driving later on.

Women who consumer an alcoholic drink with a sugar free artificial sweetened mixer may cut calories, but it will also cause blood alcohol levels to spike unusually high, according to a recent study.

The problem, Australian researchers found, is that drinks made with "diet" mixers pass through the stomach more rapidly and, therefore, make blood alcohol levels spike particularly high.

The findings, published in the September issue of the American Journal of Medicine, are based on an experiment with eight healthy young men. The volunteers had their blood alcohol levels measured repeatedly in each of two conditions: once after having a vodka beverage made with a sugary mixer, and once after drinking the same amount of vodka with an artificially sweetened mixer. The researchers also used ultrasound tests to measure each volunteer’s rate of stomach emptying after having the drink.

They found that with the diet mixer, the men’s stomachs emptied about 15 minutes sooner than when they drank the regular mixer, and that blood alcohol levels peaked at around the same time - 30 minutes after having the drink - regardless of which mixer was used. The difference, however, was that alcohol levels surged higher with the low-calorie mixer (to 0.05 percent, on average, versus 0.03 percent with the naturally sweetened mixer).

In some jurisdictions, this would mean the difference between driving legally and driving drunk, according to the study authors, led by Dr. Christopher K. Rayner of Royal Adelaide Hospital.

The difference in peak blood alcohol levels was "striking," the researchers write, and it shows that a drink's alcohol content isn't the only factor people should consider.

In general, women's blood alcohol levels soar higher than men's after drinking the same amount alcohol. And women may be particularly drawn to diet mixers in order to cut calories, the researchers note.

Continue reading "CALIFORNIA DUI: WOMEN BEWARE-HAVING A "DIET COCKTAIL" COULD GET YOU A DUI " »

CALIFORNIA DRUNK DRIVING DEFENSE NEWS:

California Penal Code Section 1203.4 - the statute that authorizes expungement of crimes after sucessful completion of probation - has been amended to exclude certain offenders from relief under the "mandatory" or "nondiscretionary" part of that code section.

Now persons convicted of these offenses, even if they have completed probation in a flawless manner, will have to petition the court to exercise its discretion in granting 1203.4 relief. Given that most of the political appointees on the bench hail from the state and federal prosecutors' offices, the liklihood of these judges actually excercising discretion in the your favor are slim to none. The legislation creates gigantic hurdles for any individual seeking a California expungement after successful completion of probation.

Persons convicted of the following code sections are affected by this latest statutory revision:

20001 CVC [hit and run driving with personal injury, etc.];

20002 CVC [hit and run driving with property damage only];

23152 CVC [driving a motor vehicle while under the influence of alcohol or drugs];

23153 CVC [driving a motor vehicle while under the influence of alcohol or drugs with personal injury];

23103 CVC [reckless driving];

23103.5 CVC [reckless driving with alcohol involved];

23104 CVC [reckless driving causing bodily injury];

23105 CVC [reckless driving causing specified bodily injury (unconsciousness; concussion; bone fracture; protracted loss or impairment of function or a bodily member or organ; a wound requiring extensive suturing; serious disfigurement; brain injury; paralysis)];

191.5(b) Penal Code [vehicular manslaughter while intoxicated];

192(c) Penal Code [vehicular manslaughter];

2800.2 CVC [attempting to evade a peace officer while driving recklessly];

2800.3 CVC [willful flight causing death or serious bodily injury];

21651(b) CVC [driving on a highway other than to the right of an intermittant barrier or a dividing section which separates one or more opposing landes of traffic];

22348(b) CVC [driving a vehicle upon a highway at a speed greater than 100 miles per hour];

23109(a) CVC [motor vehicle speed contest];

23109(c) CVC [motor vehicle exhibition of speed];

23109.1 CVC [engaging in motor vehicle speed contest causing specified bodily injuries];

31602 CVC [unlawful driving on a public highway for the purpose of transporting explosives];

23140(a) CVC [driving with a BAC of 0.05 by a person under the age of 21];

23140(b) CVC [driving while UIA (0.05) by a person under the age of 21];

14601 CVC [driving while privileges suspended pursuant to certain offenses];

14601.1 CVC [driving while privileges suspended pursuant to other offenses];

14601.2 CVC [driving while license suspended or revoked for DUI];

14601.3 CVC [habitual traffic offender];

14601.4 CVC [driving with suspended or revoked driver's license resulting in injury to another person];

14601.5 CVC [driving while privileges suspended for failure to take chemical test or for driving with specified blood alcohol level].

Continue reading "CALIFORNIA DUI DEFENSE NEWS: MANY VEHICLE CODE VIOLATIONS ARE NO LONGER SUBJECT TO MANDATORY CALIFORNIA EXPUNGEMENT" »

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 " »

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" »

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

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

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.

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" »