September 14, 2009

SAN DIEGO DUI DEFENSE: WILL COPS BE ABLE TO TAKE YOUR BLOOD AT THE SIDE OF THE ROAD?

BOISE, Idaho (AP) — When Officer Darryll Dowell of the Nampa Police Department is on patrol, he will pull up at a stoplight and start casing the vehicle next to him. Nowadays, his eyes will also focus on the driver’s arms, searching for a plump, bouncy vein.

“I was looking at people’s arms and hands, thinking, ‘I could draw from that,’ ” Officer Dowell said.

The thought stems from training he and a select cadre of officers in Idaho and Texas have received in recent months in drawing blood from people suspected of driving under the influence of drugs or alcohol. The aim of the federal program is to determine if drawing blood by law-enforcement officers can be an effective tool against drunken drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage law-enforcement officers nationwide to undergo similar training.

The Supreme Court ruled in 1966 that the police could have blood tests forcibly done on a drunken-driving suspect without a warrant, as long as they were based on a reasonable suspicion that a suspect was intoxicated, and they were done after an arrest and carried out in a medically approved manner.

The practice of law-enforcement officers drawing blood, first done in Arizona in 1995, has raised concerns, though, about safety and the credibility of the evidence.

“I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chairman of the National Association of Criminal Defense Lawyers’ committee on driving while intoxicated….

For more on this story: http://www.nytimes.com/2009/09/14/us/14blood.html?_r=1&ref=us

Continue reading "SAN DIEGO DUI DEFENSE: WILL COPS BE ABLE TO TAKE YOUR BLOOD AT THE SIDE OF THE ROAD?" »

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

February 28, 2009

Florida DUI: Cops Will Be Allowed to Draw Blood at the Roadside, a Dangerous Proposition

WEST PALM BEACH, Fla. -- Drunken drivers beware: If you drink and drive, especially during the last weekend of February, the Palm Beach County Sheriff's Office and other area law enforcement will be out for blood.

34T9CA9ELBANCAX0VSYKCATQN2W0CAK6CFIYCAB7QE8FCA4CKIISCABI6VLPCAAEGNKYCAGC2W01CAUALET3CAHFYJTSCANQ74NPCATJ62SYCAEKTBVHCAZMDWWXCAPPI1CICAEJLP5UCA87TVACCAT8FPJ2.jpg

PBSO deputies plan to set up driving under the influence checkpoints. If they suspect a driver is under the influence, they'll offer an on-the-spot Breathalyzer. If drivers refuse, deputies will ask to draw blood from their arms.

"I think that's really personal and I think that if you deny a Breathalyzer and you say that you don't want that, I think that's outrageous if they take blood without your consent," driver Courtney Liddle said.

Attorney David Olson said that "would only be lawful if a warrant is issued by a judge."

That's just what deputies plan to do. They'll actually drive to a judge's home for a signature and return to the checkpoint.

Olson said drawing blood from drivers is usually done in extreme cases like homicides and fatal collisions. Olson said he's not sure a judge would actually sign a warrant.

"I admire and respect the sheriff's intention to investigate driving under the influence cases, but I am glad that they apparently are going to go to judges before they independently exercise what they believe would be a valuable tool in conducting these kinds of investigations," Olson said.

The PBSO is trying to emphasize that DUI will not be tolerated. But some drivers feel it's a bit too much.

"I think it's invasive on a personal level," driver Dave Staup said. "If you're going to deny a Breathalyzer, you should definitely be able to deny getting blood taken. It's a highly more invasive thing to do."

If drivers refuse to have their blood drawn, they will be arrested and charged with DUI.

Continue reading "Florida DUI: Cops Will Be Allowed to Draw Blood at the Roadside, a Dangerous Proposition" »

February 7, 2009

SAN DIEGO CRIMINAL DEFENSE: OK FOR PROSECUTORS TO COMMENT ON DEFENSE FAILURE TO RETEST EVIDENCE

Here is yet another spectacularly awful case from the California Supreme Court relating to defense experts. In Zamudio (43 Cal.4th 327), the California Supreme Court said that the DA could present evidence that an item had been provided to the defense laboratory.

In this case, the DA repeatedly asked witnesses whether the sheriff's DNA lab could have been ordered to release samples to the defense for testing. Notably, the trial judge actually sustained defense objections, noting that this raised questions about the credibility and competency of defense counsel, a point the Supremes ignore.

The Supremes say these questions weren't a violation of work product, since no "writing" from the defense was involved. They brush aside claims of attorney-client privilege (no communication from a client), Griffin (380 U.S. 609) error (OK to comment on the failure of the defense to introduce material evidence), and that the questions shifted the burden of proof to the defense.

This is really, really bad and we're going to have to develop strategies to deal with it. Of curse, we must all demand that the court pay for the retesting of evidence from the prosecution. But we need more...much more.

People v. Bennett; 2009 DJ DAR 1429; DJ, 1/30/09; Cal. Supremes

phleb02.gif


July 2, 2008

THE PROSECUTION CAN PRESENT EVIDENCE THAT A DEFENSE LAB EXAMINED EVIDENCE

THE PROSECUTION HAS THE RIGHT TO PRESENT EVIDENCE THAT A DEFENSE LAB
EXAMINED EVIDENCE-RAISE CONSTITUTIONAL ISSUES TO DEFEAT THIS HORROR

This case was reported in this blog a few months ago. Here, the DA was permitted to repeatedly present evidence from the police criminalists that crucial evidence was released to a defense lab.

The California Supreme Court rejected a defense work product argument. They then rejected the 6th Amendment challenge by saying that their work product ruling disposed of all those
challenges.

A great many criminal prominent criminal defense lawyers petitioned the court to delete or modify this discussion.

The Supremes modified their opinion with a phrase. It looks like what they are saying is that
since no constitutional issues were raised, the only constitutional issues presented are those at issue inherent in the work product issue, and so rejection of the work product
issue is also a rejection of any constitutional issue presented by the
work product issue.

If that sounds like gibberish, you got it. If this actually comes up, raise challenges based on the 5th and 6th Amendments, the attorney-client privilege, work product, and relevancy, as well as EC 352.

People v. Zamudio; 2008 DJ DAR 8604; DJ, 6/13/08; Cal. Supremes

November 30, 2007

DUI DEFENSE ATTORNEY NEWS: DUI DEFENDANT FOUND NOT GUILTY IN DUI HOMICIDE; AMBIEN TO BLAME

TEWKSBURY, Mass. -- A judge finds an Andover attorney Ki Yong O not guilty of motor vehicle homicide in an accident that happened last year in Tewksbury.

The 36-year-old struck and killed Anthony Raucci while on the prescription sleep medication Ambien.

The judge in the case said that since O did not know the side effects of the drug, he could not be found guilty.

The accident happened while Raucci was changing a tire in the breakdown lane on I-93.

Raucci's wife and 7-year-old son were in the car at the time and watched the whole scene unfold.

O was also found not guilty on charges of leaving the scene of an accident with property damage.


Continue reading "DUI DEFENSE ATTORNEY NEWS: DUI DEFENDANT FOUND NOT GUILTY IN DUI HOMICIDE; AMBIEN TO BLAME" »