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.

florida-traffic-school-3v.jpg

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 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.

December 3, 2012

ENTERING CANADA WITH A DUI; CANADA RELAXES RESTRICTIONS

It's nearing the holidays and you want to go skiing in Banff for New Year's. But you've been convicted of a DUI.

Having a DUI on your record used to be a major impediment to vacationing in Canada. See, http://www.californiacriminallawyerblog.com/2009/11/california_dui_conviction_many.html for my previous article on the difficulties of entering Canada with a DUI conviction. The difficulty was because DUI is considered an "indictable offense," much life a felony in the U.S., foreigner's with such convictions were not allowed entry.

Canada's new policy is in direct response to waning tourism.

New Canadian policy lets first-time offenders a one-time exemption. But the exception is limited. Americans with more than one DUI still canot enter without going through the same red tape you had to cut through previously. And, it doesn't help Americans who want to do business regularly and who need to come and go frequently. Those, too, will have to go through the mountains legal red tape previously required of the first time offender.

Here are the rules: Americans with a single DUI must not receive any term of imprisonment in connection with their sentence and must have no other convictions or charges that could render them inadmissible. If eligible, these Americans can receive a free Temporary Resident Permit in lieu of paying the normal fee of $200.

Note: Isn't it interesting how Canada - who reviled and repelled those American citizens with a mere single DUI - changed its tune when money came into play? I guess "safety" isn't as important as money. Or maybe the Canadians saw just how ridiculous it was to impose wuch hardships on people who, well, just want to go to Banff.e Star Tribune reports that Canada has eased its strict policy denying Americans entry into Canada if they have a single DWI conviction. In the past, Americans with a single DWI conviction often were deemed inadmissible because DWI is considered an "indictable offence" in Canada. An "indictable offence" is similar to a felony in the American system. Canada's new policy is in response to lost tourism revenue.

The new Canadian policy effective March 1, 2012, allows certain first-time offenders a one-time exemption. Importantly, the policy doesn't help Americans enter Canada more than once and doesn't help those with more than one DWI or other conviction triggering inadmissibility.

Under the new policy, Americans who are convicted of a single DWI must not receive any term of imprisonment in connection with their sentence and must have no other convictions or charges that could render them inadmissible. If eligible, these Americans can receive a free Temporary Resident Permit in lieu of paying the normal fee of $200.

Continue reading "ENTERING CANADA WITH A DUI; CANADA RELAXES RESTRICTIONS" »

March 30, 2012

BOBBY BROWN'S LAWYER NEEDS TO SHUT UP

Whenever a star is arrested, it's big news for Hollywood. TMZ, the Huffington Post, Entertainment Tonight and a host of other shows torture us with reruns from every angle.

The news of the day is the arrest of Whitney Houston's ex-husband Bobby Brown for DUI.

Bobby Brown was allegedly pulled over for talking on a cell phone while driving. That's the allegation. Of course, the burden is on the prosecutor to prove up that there was a valid basis for the stop. That is, unless, your lawyer admits the police report is correct and waives the attorney-client privilege.

In a statement to the press, Brown's newbie lawyer, Tiffany Feder, explains: "Everyone is innocent until proven guilty and Mr. Brown was not driving erratically. He was speaking on his cell phone. Mr. Brown has not been convicted of anything associated with this incident. Mr.
Brown is taking this matter seriously and an investigation is under way. The legal process shall run its course.""

When a lawyer actually reveals facts that are privileged attorney-client communications, such as an admission that he was driving without a hands free set and talking on his cell phone, that destroys any chance of the defense lawyer prevailing on a suppression motion. What Ms. Feder has done is dash any possibility that Brown can prevail on a suppression motion because she had made an admission based on what should have remained a privileged attorney-client relationship.

Bobby Brown's lawyer just needs to shut up.

Continue reading "BOBBY BROWN'S LAWYER NEEDS TO SHUT UP" »

July 5, 2011

CALIFORNIA CRIMINAL EVIDENCE: WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING

A series of cases being handed down by the U.S. Supreme Court and California Court of appeals are being heralded by prosecutors as "new law." Once such case is the U.S. Supreme Court's decision in Bullcoming. Another is Vangelder, discussed below.

What is frightening about this prosecutorial harkening, however, is that none of this really is new law at all. It's always been the law. It's just that prosecutors and rogue judges' deviate from it. The "norm" has been: Violate Due Process and the evidence code in order to assist the prosecution in obtaining convictions.

But the U.S. Supremes recently, and now the California Court of Appeal, are pinning their ears back. And they better listen.

COURT OF APPEAL SAYS WE HAVE THE RIGHT TO CHALLENGE BREATH TESTING DEVICES

The California Supreme Court has held that we can't challenge the partition ratio used to prove that a defendant was driving at or above .08. Note that we can challenge it on the DUI charge itself, though only if we can show a problem with this specific defendant, not just general problems with partition ratio. (McNeal, 46 C4th 1183.)

Here, the trial judge entirely barred the defense expert from testifying that breath testing devices (PAS and breath testing machines) are unreliable because of problems getting pure data about blood alcohol from the intake of air. The expert would testify to problems affecting the amount of alcohol found in the alveolar air supposedly being tested. The California Court of Appeal says that the exclusion of the expert's testimony was error, with respect to both the .08 and the DUI charges. The California Court of Appeal says that this differs from partition ratios. Big defense win; Chuck Sevilla, San Diego PC, was successful appellate counsel.

People v. Vangelder; 2011 DJ DAR 9949; DJ, 7/5/11; C/A 4th, Div. 1

July 2, 2011

LAW OFFICES OF MARY PREVOST, ORANGE COUNTY DUI DEFENSE: HOW TO AVOID AN ORANGE COUNTY DUI THIS 4TH OF JULY

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 Fourth of July weekend 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 case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in 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 cases can be won. Some 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 Orange County 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 Day Weekend.

florida-traffic-school-3v.jpg

1. If you drive in Orange County during the Fourth of July weekend, and you plan on having a cocktail or two, make sure you know where your license, registration and proof of insurance are. Orange County DUI officers historically write in their Orange County 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 Orange County 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 an Orange County 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 Orange County 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 Orange County 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, 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, 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 Southern California DUI Defense lawyer.

Continue reading "LAW OFFICES OF MARY PREVOST, ORANGE COUNTY DUI DEFENSE: HOW TO AVOID AN ORANGE COUNTY DUI THIS 4TH OF JULY " »

July 1, 2011

LAW OFFICES OF MARY PREVOST, SAN DIEGO DUI DEFENSE: HOW TO AVOID A DUI THIS FOURTH OF JULY

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 Fourth of July weekend 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 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in 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 cases can be won. Some 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 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 Weekend.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during the Fourth of July weekend, 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 sanitation 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.

Continue reading "LAW OFFICES OF MARY PREVOST, SAN DIEGO DUI DEFENSE: HOW TO AVOID A DUI THIS FOURTH OF JULY" »

December 30, 2010

HOW TO AVOID A DUI THIS NEW YEAR'S EVE

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 New Year's Eve.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during New year's Eve, 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.

Continue reading "HOW TO AVOID A DUI THIS NEW YEAR'S EVE" »

July 9, 2010

CALIFORNIA DUI DEFENSE: NEW DUI IGNITION INTERLOCK CHANGES FOR 2010

IGNITION INTERLOCK DEVICE CHANGES 2010; by JOSHUA DALE

The new ignition interlock scheme that changed DUI laws on July 1, 2010 shouldn't phase any of us. One of the laws helps our multiple DUI offenders, the other hurts any DUI offenders in only four counties - Alameda, Los Angeles, Sacramento, and Tulare.

INTERLOCK.jpg



AB 91 - Pilot Project IID Requirements

The new "Pilot Program" comes from AB 91. The act amended Sections 13386 and 23576 of, and added and repealed Chapter 5 (commencing with Section 23700) of Division 11.5 of, the Vehicle Code, relating to vehicles. It is an experiement lasting until January 1, 2016 when DMV must report on the effectiveness of this scheme.

All DUI convictions after July 1, 2010 cause notice to be sent to offenders from the DMV notifiying them they must install the interlock device for a period of time. All first time and repeat violators of California Vehicle Code 23152 or 23153 are included. Note that this doesn't include dry or wet reckless.

First offenders will receive a 5 month IID requirement. Second offenders a 12 month requirement. Third offenders a 24 months requirement and fourth offenders 36 months. 23153 convictions require more time.

Persons are exempt of the requirement if within 30 days of notice by the DMV, the person certifies no ownership of a vehicle, no access to a vehicle at his or her residense, acknowledgement of licensing, IID requirements, and requirements if situation changes. Motorcycles are not included at this time.

In order to grasp all the ramifications of the new ignition interlock experiment law read it at http://www.leginfo.ca.gov/calaw.html - public defenders should pay particular attention to the sliding scale fees that low income persons will pay. It is based on the Federal Poverty Levels.

Note also, that the judge does nothing in sentencing - this is all handled at the Department of Motor Vehicles depending on from what court the abstract comes from.

SB 598 and SB 895 - Multiple Offender IID Benefits

SB 598 amended Sections 13352, 13352.5, 23109, 23550, 23550.5, 23552, 23566, and 23568 of the Vehicle Code, relating to vehicles. SB 895 amended Sections 13352.5, 13353.3, and 23247 of the Vehicle Code, relating to vehicles, and declaring the urgency thereof, to take effect immediately on July 1, 2010.


These two pieces of legislation confer to multiple offenders the possibility of a restricted license after a shorter amount of time regardless of the DMV administrative per se suspension. Again, this happens at the DMV and has nothing to do with the judge unless the judge has prohibilted a restricted license to the defendant. Here's how it works.

A convicted second offender can apply for a restricted license after 90 days suspension - A convicted third offender can apply for a restricted license after 6 months suspension - A convicted fourth offender can apply for a restricted license after 12 months suspension. Several of the new provisions of 13352 apply to persons convicted of 23153 too.

The secret to getting the administrative per se DMV suspension credited and/or terminated is written into subdivision (c) of Section 13353.3. In each offender's case, he or she must have insurance (SR-22), be in the proper class for the correct amount of time (and stay in the class), have proof of the IID installed in the right vehicle, and pay the fees demanded by the DMV.

The length of how long they must keep the IID is found in California Vehicle Code Section 23575(f). The restriction shall remain in effect for at least the remaining period of the original suspension or revocation and until all reinstatement requirements in Section 13352 are met.

Finally, pursuant to Section 23620, a violation of Habor and Navigations Code 655 is included in 13352's legislative changes making this count as a separate offense in calculating length of IID required.


This work is licensed under a Creative Commons License.

Continue reading "CALIFORNIA DUI DEFENSE: NEW DUI IGNITION INTERLOCK CHANGES FOR 2010" »

July 2, 2010

SAN DIEGO DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS FOURTH OF JULY

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 abundantly stupid and 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 4th of July 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 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in settlement from the City because the cop falsified the basis for his stop.

That's not to say that your case can be won. Many can, many can't. 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 podiatrist if you had cancer? Of course not.

I am the first attorney in San Diego to be voted into the National College for DUI Defense at Harvard by a unanimous vote of the Board of Regents. I see attorneys take cases, take money, and plead the cases right out without doing any work. One such attorney ranks high on the search engines and never, never, never goes to court. Instead, he sends some appearance attorney to go to court and plead out 20 cases per day. He keeps all the money, does little to no work, but has a great marketing director. Don't be fooled.

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 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 4th of July holiday.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during the 4th 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 sanitation 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.

Continue reading "SAN DIEGO DUI DEFENSE: HOW TO AVOID A CALIFORNIA DUI THIS FOURTH OF JULY" »

May 28, 2010

LAW OFFICES OF MARY PREVOST: HOW TO AVOID A DUI ARREST AND CONVICTION 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 abundantly stupid and 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 planning 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 pre-trial to work up your case. Yes, people, there are defenses to high blood alcohol DUI's. I just got an offer of a wet reckless on a .17 blood alcohol case. I got another "wet" offer on a .17 blood alcohol level case where the client had an accident. I recently sued San Diego's top DUI cop in federal court and won $10,000 in settlement from the City because the cop falsified the basis for his stop.

That's not to say that your case can be won. Many can, many can't. 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 podiatrist if you had cancer? Of course not.

I am the first attorney in San Diego to be voted into the National College for DUI Defense at Harvard by a unanimous vote of the Board of Regents. I see attorneys take cases, take money, and plead the cases right out without doing any work. One such attorney ranks high on the search engines and never, never, never goes to court. Instead, he sends some appearance attorney to go to court and plead out 20 cases per day. He keeps all the money, does little to no work, but has a great marketing director. Don't be fooled.

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 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 Memorial Day holiday.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during Memorial Day, 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 sanitation 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.

Continue reading "LAW OFFICES OF MARY PREVOST: HOW TO AVOID A DUI ARREST AND CONVICTION THIS HOLIDAY SEASON" »

February 12, 2010

CALIFORNIA DUI: CHP TO INVESTIGATE RIVERSIDE POLICE CHIEF'S EARLY MORNING DUI CRASH

Riverside Police Chief Russell Leach crashed a city-owned vehicle about 3 a.m. Monday, going off the road and hitting a light post and a fire hydrant, authorities said Tuesday.

"Chief Leach was driving on Central Avenue and allowed his car to drift off the road," said California Highway Patrol Inland Division Chief Jeff Talbot. "I understand that two of the tires were down to the rim."

The CHP is investigating the incident, but Talbot said it was too early in the investigation to determine the cause of the accident or whether alcohol was involved.

"As far as any impairment, I have no idea. We will have to rely on statements from the Riverside police officers who were at the scene. There was no arrest," he said. "We will have the vehicle in here tomorrow, and I have some officers going out to the scene."

Riverside's city manager put out a brief statement Tuesday saying Leach had been involved in a single-car, non-injury crash. Leach has been placed on medical leave, the statement said.

Police spokeswoman Sgt. Jaybee Brennan would not comment except to say there had been an accident. She referred all questions to City Atty. Greg Priamos, who did not return calls for comment.

Talbot said Riverside Police Deputy Chief John De La Rosa contacted him Tuesday and asked the CHP to investigate the accident.

"He thought it would be in the best interests of everyone for us to do it," Talbot said. "They wanted us to come in because we are completely unbiased."

The CHP often handles such investigations when they involve other law enforcement agencies.

Leach recently helped lead a massive assault on the notorious East Side Riva gang in Riverside. And last Wednesday he warned against drinking and driving on Super Bowl Sunday.

"Designating a sober driver should be on the top of everyone's Super Bowl party list," he said. "It's just one of several easy steps to help save lives."

Continue reading "CALIFORNIA DUI: CHP TO INVESTIGATE RIVERSIDE POLICE CHIEF'S EARLY MORNING DUI CRASH" »

December 31, 2009

CALIFORNIA WILL WASTE $8 MILLION THIS YEAR BEEFING UP SOBRIETY CHECKPOINTS: THIS SAN DIEGO DUI DEFENSE ATTORNEY THINKS THIS IS A TOTAL WASTE OF VALUABLE RESOURCES

California traffic safety officials will pump $8 million this coming year into an aggressive drunken driving program with a controversial focus: sobriety checkpoints, according to the Sacramento Bee.

Armed with federal grants, police in 150 California cities are launching what the state's Office of Traffic Safety chief says may be the most extensive checkpoint program in the country in 2010, increasing by nearly 50 percent the number of checkpoint operations statewide.

In doing so, police will be ratcheting up efforts on one of the most oft-debated tactics in the anti-drunken driving arsenal.

Commonly seen as traps for unsuspecting drivers leaving bars and restaurants, checkpoints in reality typically result in few drunken driving arrests, data show. (That's, in part, because police agencies rarely announce when and where the checkpoints will take place, defeating the deterrent value of the checkpoints).

That's by design, police say. Law enforcement agencies put out alerts to TV, radio and newspapers before they set up a checkpoint so that word hits the street before the orange cones do. (IN San Diego, for example, they will announce a checkpoint maybe 1 hour prior to setting it up, which rarely "gets" the news to the people it is intended for.)

And, they say, they don't mind that some restaurant managers now send text message warnings to each other when they hear a checkpoint has been set up in their area.

Police and traffic safety officials say they view sobriety checkpoints as a high-profile public relations campaign.

"It's not about the number of arrests. It's about the deterrent effect," state traffic safety chief Chris Murphy said in launching what his office calls "The Year of the Checkpoint."

Murphy said safety efforts are helping. Road deaths overall have dropped in California the last three years, including alcohol-involved crashes.

Still, about a quarter of road deaths in California are alcohol-related, data show. Alcohol-involved crashes killed 1,029 and injured 28,457 in the state in 2008.

The sight alone of a checkpoint is memorable, keeping some drivers from becoming complacent about the risks of drinking and driving, Murphy said.

Police cruisers, roof bars flashing, light up the night. A funnel of orange cones leads cars toward a row of officers waving flashlights.

Typically, police allow drivers a place to turn to avoid a checkpoint. But, police warn, agencies have "chase" cars ready to follow those drivers if they appear to be driving poorly.

"It is not running and gunning and taking a whole bunch of people to jail, but it's worthwhile," said Officer Jason Browning of the Folsom Police Department.

Sobriety checkpoints are arguably better at cornering people who drive without a license than people driving drunk.

Sacramento city police reported that of the 800 vehicles stopped last week at a South Natomas checkpoint, only two were cited for drunken driving but 32 were caught driving without a valid license.

The checkpoints draw heat nationally from the American Beverage Institute, a restaurant trade group that argues they are ineffective, and calls them a form of harassment that "threatens our customers and the cultural dining experience."

Police should focus instead on going after the worst drunken drivers, those with multiple offenses, institute officials said.

Police agencies counter that checkpoints aren't their sole focus. California agencies say they routinely conduct "saturation patrols," where officers from several agencies join in a given area to search out and arrest drunken drivers.

Many of those efforts also are funded by federal grants through the state traffic safety office.

A spokesman for that office said the agency does not have a tally of how much is spent on that type of drunken driving enforcement but that nearly $50 million in funds overall will be funneled to local governments and health agencies this coming year to combat drunken driving and its causes.

Sacramento-area restaurant owners and managers express mixed feelings about checkpoints.

At Ink, a midtown Sacramento restaurant, co-owner Alicia Cortez said she and other restaurant managers text each other when they hear of a nearby checkpoint, and she alerts her bartenders, who encourage patrons to find a designated driver or take a cab.

Nevertheless, she said, she supports checkpoints.

"It's tough because (alcohol sales) is a huge part of our business and our revenue, but health and safety of patrons and their friends and family is number one," she said.

At Bistro 33 in Davis, general manager Jason Prater said news of a nearby checkpoint sends a "buzz" through the restaurant's bar.

He said he senses it causes some customers to drink less. Some customers stick around longer and have coffee. Others, forewarned, take other streets home. Many, he said, walk home.

The relatively small number of arrests at checkpoints may make the state's $8 million focus next year seem like a gamble. The city of Sacramento, in particular, has a lot at stake.

A new analysis from the state Office of Traffic Safety shows Sacramento rates highest among the state's 13 largest cities in drunken driving injury crashes.

City officials say they are hoping the federal grant money for sobriety checkpoints will help them dig out of that hole.

State officials defend the increased funding for checkpoints by pointing to a 2002 report, sponsored by the U.S. Department of Health and Human Services, and overseen by the federal Centers for Disease Control and Prevention. In that report, a task force of health officials reviewed all notable studies and gave sobriety checkpoints a strong endorsement as an effective tool for reducing alcohol-related road injuries.

But "there is no panacea, no magic bullet," said task force chair Jonathan Fielding, head of public health for Los Angeles County.

Continue reading "CALIFORNIA WILL WASTE $8 MILLION THIS YEAR BEEFING UP SOBRIETY CHECKPOINTS: THIS SAN DIEGO DUI DEFENSE ATTORNEY THINKS THIS IS A TOTAL WASTE OF VALUABLE RESOURCES" »

December 17, 2009

DUI DEFENSE: COLORADO CRIME LAB GENERATES FALSE DUI READINGS

12/15/2009

Colorado: Crime Lab Generates False DUI Readings

Crime lab in Colorado Springs, Colorado inflated the blood alcohol scores in 82 alleged drunk driving cases.

At least eighty-two motorists in Colorado Springs, Colorado may have been falsely accused of driving under the influence of alcohol (DUI) based on unreliable blood test results. After double-checking its own work, the city's Metro Crime Lab on Friday admitted that out of 1000 tests conducted since January, no fewer than eighty-two results were inflated above the driver's true blood alcohol content. More incorrect readings could be discovered as re-testing continues.

"All of these samples are being re-analyzed by a senior forensic chemist and the Metro Crime Lab is issuing amended lab reports with the corrected results to the involved criminal justice entities," a city press release explained. "The Metro Crime Lab has initiated a formal corrective action plan, and continues to investigate the root cause and full scope of the problem. To date, the lab has a method for identifying affected cases, and has already implemented new policies and procedures to prevent the problem occurring in the future."

The Colorado Bureau of Investigations is performing its own independent investigation of the lab to identify the source of the erroneous readings. Agilent Technologies, manufacturer of the blood testing machines, insisted its equipment was working properly. The city prosecutor's office and Colorado Department of Revenue are looking to see whether the amended test results will affect any drivers convicted of DUI. If so, driver's licenses could be reinstated, criminal charges dropped and fines refunded.

"These agencies are fully supportive that corrective actions are being implemented," the release explained.

The city claims that the errors were uncovered during a routine quality assurance check and that none of the lab's other services have been affected. California DUI attorney Lawrence Taylor believes the errors are inherent in DUI cases that rely so heavily on readouts from fallible machines.

"Yes, tests do lie... more often than the public is aware," Taylor explained. "The only thing unique in this story is that the inaccuracies were discovered -- and published."

Taylor cited as one example that improperly preserved blood can ferment and create alcohol where none existed before.

Continue reading "DUI DEFENSE: COLORADO CRIME LAB GENERATES FALSE DUI READINGS" »

November 25, 2009

CALIFORNIA DUI: HOW TO AVOID A DUI ARREST THIS THANKSGIVING

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 Thanksgiving holiday. Here's my take on "how to Avoid a DUI" in California.

florida-traffic-school-3v.jpg

1. If you drive in San Diego during Thanksgiving, 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.

Continue reading "CALIFORNIA DUI: HOW TO AVOID A DUI ARREST THIS THANKSGIVING" »

November 11, 2009

CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA

You have just had a really long year and you are dying to go to Whistler (in Canada) for a long-deserved ski vacation. Think again if you have a DUI conviction, a domestic violence conviction, or any type of conviction (misdemeanor or felony) that is indictable under Canadian law.

You WILL be stopped at the border, and you WILL be humiliated.

Read along to figure out what can be done in your case......

canada.gif


CANADA

Clients seeking to travel to Canada with criminal convictions from the U.S. (or any other country, for that matter) require unique advice. Living in a state next to Canada means that we must be aware that many of our clients are likely to seek entry into Canada, and be extremely disappointed if they are turned back at the border. Because so many of our clients take entry into Canada for granted, it is important to consider several issues relating to entry to Canada. These include who can enter Canada, who can be excluded from Canada, how to overcome exclusion from Canada, and whether a client who is ineligible for rehabilitation can nonetheless seek entry.

A. Who Can Enter Canada.
Most people assume, without question, that just about anyone can enter Canada. This is not true. The Canadian Customs and Immigration Officers have ultimate authority to permit and deny anyone entry to Canada. No one has an automatic right to enter Canada. However, most people if they have no criminal record are allowed entry. What if you have a criminal conviction?

B. Who Can’t Enter Canada.
To begin, in Canada a DUI is a felony and therefore an excludable offense under the Immigration Act. A DUI is an indictable offense in Canada that may be punished by imprisonment for up to a five year term. Anyone with a conviction in the U.S. that is treated as a felony or indictable offense in Canada is excludable from Canada, but even if the offense is not a felony or indictable offense in Canada, Customs and Immigration Officers have ultimate authority to permit and deny entry to Canada.

Almost all convictions (including DUI, DWI, reckless driving, negligent driving, misdemeanor drug possession, all felonies, domestic violence (assault IV), shoplifting, theft, etc) can make a person inadmissible to Canada, regardless of when they occurred. For this reason, it is not recommended that persons with past convictions attempt to enter Canada without first obtaining necessary documents. It is always the final decision of officers at ports of entry to decide whether a person should be allowed into Canada.

The reason for this exclusion is contained in Canadian law. The Canadian Immigration Act, in § 19; states:

(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
(a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act;
(a.1) persons who there are reasonable grounds to believe
(i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, or
(ii) have committed outside Canada an act or omission that constitutes an offence under the laws of the place where the act or omission occurred and that, if committed in Canada, would constitute an offence that may be punishable by way of indictment under any Act of Parliament by a maximum term of imprisonment of less than ten years, except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission, as the case may be;

Later, in § 3 of the Immigration Act, there is a provision that permits discretionary entry:

A senior immigration officer or an adjudicator, as the case may be, may grant entry to any person who is a member of an inadmissible class described in subsection (2) subject to such terms and conditions as the officer or adjudicator deems appropriate and for a period not exceeding thirty days, where, in the opinion of the officer or adjudicator, the purpose for which entry is sought justifies admission.

Again, the Canadian Consulate emphasizes that this entry is discretionary, and in the post 9/11 aftermath, officers are more typically exercising their discretion to deny entry than to grant entry. Even if a Canadian Minister (I'm not sure which minister) has approved a client's entry, the border person can still reject the person.

Finally, there is a permit process that requires prior application and may permit an otherwise excludable person to enter Canada. Information on the permit is on the consulate general’s web-site, permits a visit of up to 30 days, and as I understand it, once it is approved, may be re-approved when application is made within a 3 year period. Permit information is at: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397. This process is discussed in the next section.

C. Overcoming Exclusion from Canada.

There are several ways individuals can overcome criminal inadmissibility, but the short answer you must give your client is that there is no short and easy way to do it. These include:

1 Deemed rehabilitation at a Canadian port of entry;
2 Streamlined rehabilitation at a Canadian port of entry;
3 Approval of rehabilitation through a Canadian Consulate in the United States; and
4 A Temporary Resident Permit through a Canadian Consulate in the United States

1. Deemed Rehabilitation.

Persons are eligible to apply for deemed rehabilitation at a port of entry if the following are true:
1 There was only one conviction in total;
2 At least ten years have elapsed since all of the sentences for the conviction were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The conviction would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The conviction did not involve any serious property damage, physical harm to any person, or any type of weapon.

2. Streamlined Rehabilitation.

Persons are eligible to apply for streamlined rehabilitation at a port of entry if the following are true:
1 There were two or less convictions in total;
2 At least five years have elapsed since all of the sentences for the conviction(s) were completed (payment of all fees, jail time completed, restitution paid, etc);
3 The convictions would not be considered serious criminality in Canada (most felony convictions in the United States are equivalent to serious criminality in Canada); and
4 The convictions did not involve any serious property damage, physical harm to any person, or any type of weapon.

3. Deemed & Streamlined Rehabilitation Applications.

Deemed rehabilitation and streamlined rehabilitation applications are processed at Canadian ports of entry. Submitting an application for rehabilitation does not guarantee that the request will be approved. Should your client wish to apply for either, the client must bring the following documents to a port of entry during regular business hours (Monday - Friday between 8am and 5pm):
1 A United States passport or birth certificate (with photo identification);
2 A copy of court documents for each conviction, and proof that all sentences were completed;
3 A recent FBI identification record;
4 Recent police certificates from the state where the conviction(s) occurred, and from any state where a person has lived for six (6) months or longer in the last 10 years; and
5 A fee is involved for the streamlined rehabilitation process, equivalent to $200 Canadian. There is no fee for deemed rehabilitation.

4. Approval of Rehabilitation.

If more than 5 years have elapsed since all sentences related to the conviction(s) were completed, but a person is not eligible for rehabilitation at a port of entry (because of the nature or number of convictions), a person may apply for approval of rehabilitation through a Canadian Consulate in the United States. The same documents required for port of entry rehabilitation identified above are also required for rehabilitation through a Canadian Consulate, plus a completed Application for Criminal Rehabilitation (Citizenship & Immigration Canada Form IMM 1444. Five Canadian Consulates in the U.S. process criminal applications - Buffalo, NW, New York, NY, Detroit, MI, Los Angeles, CA, and Seattle, WA. Again, the decision to approve rehabilitation is discretionary, so there is no certainty in obtaining admission to Canada. In the situation where a person is ineligible for rehabilitation because of the nature or number of convictions, employment of competent Canadian immigration counsel may facilitate approval of the application.

5. Temporary Resident Permit.

If a person is not eligible for deemed, streamlined, or approved rehabilitation, the only option remaining (short of a pardon or executive action) is to apply for a temporary resident permit. This is a process where a person requests special permission to enter or remain in Canada.

A person seeking a temporary resident permit submits the documents required for deemed or streamlined rehabilitation as well as a completed Application for Criminal Rehabilitation, except that the applicant does not check the box in § A(1) indicating Application for Approval of Rehabilitation, but instead checks the box in § A (2) indicating For Information Only.

As poignantly noted on the Citizenship & Immigration Canada website, the Customs and Immigration officer will review the Application form, look at the nature of the offenses, the number of offenses, when the offences happened, and the applicants current situation, and then the officer will:

At Canadian visa offices outside of Canada:
• advise that they do not recommend that you travel to Canada; or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada*.
At Ports of Entry (airport, marine or land)
(Contact your nearest Canadian visa office before traveling into Canada.)
• advise that you will not be allowed to enter Canada and ask you to return immediately to your country of departure;
• take enforcement action (arrest, detention and/or removal); or,
• advise that you could apply for special permission (temporary resident’s permit) to enter Canada.
In Canada
• ask that you leave Canada voluntarily;
• take enforcement action (arrest, detention, and/or removal from Canada); or
• advise that you could apply for special permission (temporary resident’s permit) to remain in Canada.
The safest course of conduct is to make application for, and obtain approval of, a Temporary Resident Permit at a Canadian consulate in the U.S. prior to attempting entry to Canada. The website indicates that Approval of Rehabilitation and Temporary Resident Permits take a minimum of six (6) months to process in the Seattle office; information indicated the time in Seattle is much closer to one year. Clients seeking quicker decisions should direct their applications to the Canadian Consulates in Detroit and Buffalo.

Failure to timely seek a Temporary Resident Permit can result in disastrous consequences. A client who failed to seek a Temporary Resident Permit was stopped at Customs and Immigrations in Toronto, detained, and returned to Denver the next morning on the next flight home. He was also unable to close a multi-million dollar sale, and lost his job as a vice-president in the cellular phone industry. Another client who failed to seek a Temporary Resident Permit was stopped, questioned, and permitted to enter Canada for business, but was counseled she would not always be so lucky.

Once a Temporary Resident Permit is granted, it must be updated every 6 months to 1 year. It is not permanent. There are significant non-refundable processing fees associated with Temporary Resident Permits, and not surprisingly, higher fees correspond to cases involving more serious criminality.

6. Processing Problems.
The most frequent problem is inadequate or incomplete documentation. Although court documents may be difficult to obtain, Canada typically requires them for review. Proof of sentences being completed is critical, which could be anything from a letter received stating that a person’s civil rights have been restored or a letter from a probation officer stating that all sentences were completed successfully, to proof of the final payment of a fine showing a zero balance. If court documents and/or proof of completed sentences have been destroyed by the court, Canada requires a letter from the court which clearly indicates that files are no longer available. Canada also needs to see original FBI certificates and state police certificates issued within the year, and requests all required materials be submitted in one package. While the minimum processing time for these applications is six (6) months, many cases take longer to process.

D. Resources.

The web link http://www.cic.gc.ca/english/applications/rehabil.html has information about the rehabilitation process.

Temporary residence permit information is contained in the consulate general’s web-site: http://www.dfait-maeci.gc.ca/can-am/menu-en.asp?act=v&mid=12&cat=180&did=397.

The consolidated statutes and regulations page for Canada is: http://laws.justice.gc.ca/.

A more specific link to the immigration statutes is at: http://laws.justice.gc.ca/en/I-2/index.html.

The specific portion of the Immigration Act that bars entry is at: http://laws.justice.gc.ca/en/I-2/60195.html.

The web link http://www.canadianembassy.org/immigration/inadmissible-en.asp explains generally inadmissibility.

The web address for Nexus, which facilitates and speeds multiple border crossings, is: http://www.cbsa-asfc.gc.ca/travel/nexus/menu-e.html.

E. Deported from Canada?A visitor to Canada faces possible deportation upon conviction for impaired driving (DUI), violating Canada’s .08 per se limit, or refusing a breath sample. A person in Canada as a visitor who is convicted of a drinking and driving offence may not be able to renew his or her visitor status, and upon conviction, such a person becomes inadmissible to Canada and can be deported. To overcome this inadmissibility, a pardon is required.

F. General Summary and Practice Tip.
Basically, if convictions are over 10 years old, entry is permitted after a criminal background check. If convictions are between 5 and 10 years old, entry is permitted on payment of a $200 fine/fee and a criminal background check. If conviction is less than 5 years old, you are going to have to jump through a bunch of hoops, and even then, probably won’t get in unless there are exceptional cricumstances.

If there is any possibility a client will one day have to enter Canada, the client would be prudent to secure certified true copies of all court records relating to the conviction and sentence, including proof of fine payment, and a transcript of the evidence underlying the conviction.

Continue reading "CALIFORNIA DUI CONVICTION CAN PREVENT ENTRY INTO CANADA" »

October 21, 2009

UNITED STATES SUPREME COURT DECLINES TO HEAR "ONE SWERVE" ANONYMOUS TIPSTER DUI CASE

United States Supreme Court Chief Justice Samuel Alito lobbied hard to gain enough colleagues to vote to hear a DUI case out of Virginia where the cop pulled over a driver based solely on the tip from an anonymous tipster that he saw the driver "swerve once." The cop, however, saw no bad driving himself.

That's not a good enough case to make a majority of the U.S. Supremes take it on. In fact, it is a major win for the Constitution. That a cop should be able to suspend the Fourth Amendment rights of a citizen based on an anonymous tipster is ludicrous. So implied the remainder of the justices that declined Alito's push to hear this ridiculous case.

CLick HERE for the news story on the case.

October 12, 2009

San Diego DUI Defense: San Diego Saved from First Time Ignition Interlock Requirements in DUI cases.

San Diego Dui Offenders will be spared the requirement of installing Ignotion Interlock Devices in their cars if they are convicted of a first offense.

Governor Swartzenegger signed a bill requiring first time offenders in Sacramento, Alameda, Tuare and Los Angeles counties to install ignition interlock devices.

What is so strange about this bill is that it omits the majority of counties, including San Diego, Orange, Riverside, etc...

We can expect a substantial equal protection challenge from criminal defense attorneys in the counties where this requirement takes effect in January.

For more, see: http://www.mercurynews.com/news/ci_13539936

September 9, 2009

FOURTH MELENDEZ-DIAZ CASE: WE WIN AND WE LOSE THIS ONE

This is the fourth California Court of Appeal case applying Melendez-Diaz (129 S.Ct. 2527). And this Court of Appeal splits the baby in half.

Melendez-Diaz held that use of affidavits from criminalists violated the 6th Amendment. Even the DAs agreed that Melendez-Diaz wiped out Geier (41 Cal.4th 555), the case from the California Supremes which said it was OK for a supervisor to testify to the results of a test done by a subordinate, even though the
supervisor never saw the actual test.

This Court of Appeal claims that Geier is distinguishable from Melendez-Diaz for two reasons. First, in Geier the supervisor testified, while no one testified in Melendez-Diaz.

Second, the affidavit in Melendez-Diaz was prepared a week after the test, while
the report in Geier was prepared at the time of the test. Incidentally, I can't imagine how your DA could ever prove when the report was prepared, other than by inadmissible hearsay.

Anyway, the Court of Appeal says that descriptions in the report about the physical exam of the victim are admissible, but the narrative description by the victim about the injuries is testimonial and thus not admissible. Then they find harmless error.

We now have two outright wins, one loss, and this wacko case.

People v. Gutierrez; 2009 DJ DAR ; DJ, 9/ /09; C/A 2nd, Div. 1

http://www.courtinfo.ca.gov/opinions/

August 12, 2009

SAN DIEGO CRIMINAL DEFENSE: GETTING THE EXPERTS YOU NEED

YOUR RIGHT TO GET EXPERTS

This isn't rocket science. But I have been denied the right for funding to get necessary experts in cases before. Bring this opinion with you next time you think you are going to be denied a righteous request for expert funding.

The Ninth Circuit here reverses for ineffective assistance of counsel. The key evidence was blood. Defense counsel never tested the blood and never even consulted any expert to see what tests might be done on the blood or how to counter the DA's blood expert. The court's
discussion of the importance of experts to examine key evidence should
greatly help us in getting courts to appoint experts we need.

Richter v. Hickman; 2009 DJ DAR 11849; DJ, 8/12/09; 9th Cir. Fed C/A