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.

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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.

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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

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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.


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