County Statistics Showing Holiday Period is a Deadly One on U.S. Roads

Victorville: Avoid the 25 DUI Campaign Task Force today announced its deputies will be out in full force during the Fourth of July holiday period, cracking down on impaired drivers with an aggressive Drunk Driving, Over the Limit, Under Arrest enforcement blitz.

At least two DUI /Driver’s License checkpoints will be conducted in the High Desert over the weekend in addition to extra deputies for saturation patrol.

1. If you drive in San Diego during the Fourth 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 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.

WASHINGTON - The Supreme Court ruling requiring criminal lab report analysts to be available at trial for cross-examination was hailed by defense attorneys who say it will help protect against wrongful convictions.

But prosecutors say that the decision in Melendez-Diaz v. Massachusetts will tax their already strapped resources, and ultimately lead to more cases against alleged drug offenders being dropped altogether.

“Because of this ruling and the practical consequences of requiring chemists to testify in all of these trials, there are going to be cases called in courtrooms that end up getting dismissed, and that’s frustrating,” said Massachusetts Attorney General Martha Coakley, who argued the case and urged the Court to allow the reports to be admitted on their own.

Instead, in a 5-4 ruling, Justice Antonin Scalia wrote that forensic reports, commonly used in the prosecution of drug and other offenses, are subject to the Confrontation Clause, meaning that the technicians who prepare them must be available at trial to be cross-examined by the defense.

Scalia wrote that such reports fall within the “core class of testimonial statements” that are subject to the Confrontation Clause under the Court’s rulings in the 2004 case Crawford v. Washington and the 2006 case Davis v. Washington.

“In short, under our decision in Crawford the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for purposes of the Sixth Amendment,” Scalia wrote. “Absent a showing that the analysts were unavailable to testify at trial and that [the defendant] had a prior opportunity to cross-examine them, [the defendant] was entitled to ‘be confronted with’ the analysts at trial.”

Justice Anthony Kennedy penned a strong dissent joined by three other justices in the closely-split ruling.

Kennedy said that the majority ignored nearly a century of criminal jurisprudence where such reports were allowed in most of the nation’s courts as a matter of course.

“This rule has been established for at least 90 years,” Kennedy wrote. “It extends across at least 35 states and six federal courts of appeals. Yet the court undoes it based on two recent opinions that say nothing about forensic analysts.”

Good news for defendants
Defense attorneys said the right to cross-examine lab report analysts is crucial, and noted that the opinion itself states that “serious deficiencies have been found in the forensic evidence used at criminal trials” and that cross-examination will “weed out not only the fraudulent analyst, but the incompetent one as well.”

“The Supreme Court rejected the notion that forensic science is always neutral and based on solid science,” said Peter Neufeld, co-director of the Innocence Project in New York.

“The Court said our criminal justice system can’t rely blindly on forensic analysts’ reports because they may distort results to favor the prosecution.”

Defense attorney groups and Scalia noted that the need to protect against inaccurate forensic reports was supported by a report earlier this year from the National Academy of Sciences, which said that most crime labs are administered by law enforcement agencies. The academy has also asked Congress to create a new agency to set and enforce uniform standards for forensic analysts to follow in preparing reports for court.

Jeffrey T. Green, a partner in Sidley Austin’s Washington office, who wrote an amicus brief on behalf of the National Association of Criminal Defense Lawyers, said the ruling will not bring the parade of horribles prosecutors claim.

“At the end of the day, we will have a better system of justice and rules” because of Melendez-Diaz, said Green.

He also said that the rules for admitting evidence are no different in other kinds of cases. “In traffic cases, the prosecutor can’t just introduce [evidence] of the police radar,” Green said. “The officer who made the stop has to show up.”

However, Coakley said that the low numbers of crime lab technicians and tight budgets make drug prosecutions a very different matter.

“These chemists who work in the labs and produce the certificates are overburdened as it is,” she said. “Now as a result of this ruling [they] are going to have to take time out of their day to travel around the state and sit around for hours or days in individual courthouses waiting to see if the case gets called. That’s simply not practical."

BLOGGER'S NOTE: Prosecutors actually made the argument here that to require lab analysts to testify - so that people accused of crimes by the government actually get a fair chance to test the evidence - would be too much of a burdenon the labs and prosecutors. Boo hoo. Follow the rules, boys. If you want to prosecute, you'd better be able to provide the evidence for a thorough cross examination. Well done, Supremes.

n San Diego, San Bernardino and Riverside, BioTox lab analyst Aaron Layton lied falsified ther esults of tests, lied about conducting confirmatory tests, failed a polygrraph, and now thousands of his cases are being scrutinized. Under a federal g rant, the San Diego Police Department is tasked with investigating problem areas with BioTox and attempting to resolve them. However, the San Diego Police Department has declined to follow this mandatory federal requirement. Click HERE to see article.

Now, a jury has awarded a measly $5 million to a man who spent 17 years in a federal prison after a lab analyst testified falsely in his case. See below for story. It is time the public understands that power corrupts, that prosecutions witnesses lie, and that innocent people are put in prison every day.

JURY AWARDS RODRIGUEZ $5 MILLION

June 25, 2009, 10:03PM

A federal jury on Thursday awarded $5 million to a Houston man who spent 17 years in prison for a kidnapping and rape he did not commit, finding the city should pay for its “deliberate indifference” to problems at the crime lab whose false evidence secured the conviction.

George Rodriguez, 48, gained his freedom in 2004 after DNA tests discredited the findings of the troubled Houston Police Department crime lab on his case. By that time, he had served nearly two decades in prison. His father had died. His daughters faced abuse from men their mother lived with.

“Ain’t no amount of money is going to even my scale,” Rodriguez said after hearing the verdict. “I lost my dad and my girls have been through hell. I am grateful, but no money could replace what I lost.”

A jury of five women and three men deliberated for about two days after hearing testimony from former Mayor Lee P. Brown, who was police chief in 1987, James Bolding, a crime lab manager who testified at Rodriguez’s trial and from Rodriguez himself.

See http://www.chron.com/disp/story.mpl/metropolitan/6494429.html

Of note is a concurring opinion, signed by three justices, saying that if the defendant decides not to do DNA testing pre-trial for tactical reasons, that defendant has no constitutional right to DNA testing post conviction.

But check out the dissent by Stevens, which clearly shows that the majority's position here is nonsense.

District Attorney v. Osborne; 2009 DJ DAR 8847; DJ, 6/19/09; US Supremes

Yeager v. U.S.; 2009 DJ DAR 8878; DJ, 6/19/09; US Supremes

In 1981, the DA filed attempted murder in San Diego and got an arrest warrant. In 1982, the defendant was arrested in Pennsylvania and waived extradition, but the DA couldn't find the victim so the defendant was released and was told the case was dismissed. The defendant was denied disability benefits in 2007 because of the still outstanding arrest warrant, so he tried to clear this up.

Oops, the DA decided to proceed. Evidence was lost and the victim's memory was unclear, so the defense was able to show prejudice. Since the DA did nothing for 25 of the 26 years after the defendant was arrested in Pennsylvania, there's no justification for the delay. The dismissal for violation of state speedy trial and federal due process rights is affirmed.

Um, how much taxpayer money was spend having to defend this case?

People v. Mirenda; 2009 DJ DAR 8732; DJ, 6/18/09; C/A 4th

Five drivers made U-turns and drove down the wrong side of the street to avoid the checkpoint. All four who were caught were found to be unlicensed, Ray said.

Officers impounded 66 cars, including 53 for driver's being unlicensed, according to Ray.

The sergeant said nine others were driving on suspended licenses.

Ray said three people were arrested for misdemeanors and seven cited for having open containers of alcohol in their vehicles.

Here, all the officer said was that the gang was involved in various criminal activities. As the concurring and dissenting opinion correctly points out, the officer never even claimed that the "primary" activity of the gang was commission of crimes.

The majority simply lists all the terrible stuff the gang does, and snarkily notes that there's no evidence that the gang provided after-school tutoring or helped clean up trash. Right, but there's still NO evidence that the PRIMARY activity was commission of crimes.

People v. Cortes; 2009 DJ DAR 8716; DJ, 6/17/09; C/A 2nd, Div. 5

The California trial court excluded this evidence. The 9th circuit grants habeas relief, finding that this violated the defendant's 6th Amendment right of confrontation. The court points out that this evidence was clearly relevant to impeach the victim's credibility.

Holley v. Yarborough; 2009 DJ DAR 8638; DJ, 6/17/09; 9th Cir. Fed C/A

They say that California Penal Code sec. 987.05 applies, even though the reason counsel wasn't ready was that he was preparing two other death cases. California Penal Code sec. 987.05 says that counsel's other business isn't relevant. Here, counsel needed a year more to get ready. Of course, once he was relieved, new counsel surely needed almost that long (the court somehow doesn't mention this little problem).

What about Roswall (89 Cal.App.3d 467), which says that relieving counsel who's already handling a case interferes with the def.'s right to counsel? Not discussed. And we're going to have a
system where you literally handle one case at a time? Really?

People v. Avila; 2009 DJ DAR 8610; DJ, 6/16/09; Cal. Supremes

REGISTRATION OPENING SOON!!

Featuring:

Opening Remarks & Legislative Update
Vincent John Tucci, Robert Wilson, and Ignacio Hernandez

Case Law Update in DUI Cases
Albert Menaster

Opening Statements in Criminal Cases
Steven L. Harmon

Rising BAC and Back Extrapolation
Ronald Jackson

Discovery in DUI Cases
Mary Frances Provost

20 DUI Myths in 45 Minutes
Bruce Kapsack

Voir Dire & Psychodrama in DUI Cases
Marjorie Russell

DON’T MISS
CACJ’s 5th Annual Texas Hold’ em Poker Tournament
Immediately Following the Seminar

...and after a few minutes, a dozen different kinds of cross-eyed ugly breaks out. Allegedly.

That's the gist of a rather hair-raising complaint filed in federal court this week by Allen Baker of Ramona and James Playford. They sued the county, the sheriff's department and five deputies for using excessive force, assault and civil rights violations all stemming from an incident at Molly Malone's bar last July. Baker said he had seen deputies at the bar several times a week, fraternizing with women and sometimes handcuffing them and placing them in the back of the squad car. For fun. Apparently. Photos were taken and one of the young women even posted it on her MySpace page, according to the complaint, and captioned it "Bong loads in a cop car."

Well, Baker approached two members of the local constabulary, deputies Colby Hodge and Jeffrey Guthrie, and asked if they were there to pick up girls. They told him to shut up or he would be arrested, which triggered a First Amendment defense kind of response from Baker ("Plaintiff Baker asked Hodge and Guthrie if freedom of speech is illegal" the suit dryly recounts.) Baker says he was put under arrest, there in the bar, and then the suit contends things went from bad to very much worse very quickly.
The suit says he was hit with flashlights, tasered, kicked, beaten and put in a choke hold until he was unconscious. At one point he contends he lost control of his bowels. Taken to jail he was charged with resisting arrest and being drunk in public. But at a preliminary hearing last September Judge Louis Hanoian dismissed one of the resisting charges and reduced a similar charge to a misdemeanor. Eventually Baker pleaded guilty to a single misdemeanor of disturbing the peace.

The incident got pretty good play on local television, partly because of the photos. A video of some of the incident is posted on YouTube. The person who took the video, Playford, contends in the suit that when he showed up at court for a hearing in Baker's case he was harassed by other deputies and was so intimidated he said he would not testify for Baker. The suit alleges a conspiracy among the deputies and faults the county for not investigating the matter.

It's not a pretty picture described by attorney Mary Prevost in the lawsuit, but these police misconduct cases are no walk in the park. There's a way to go here, but there is also lots of intriguing material. We're working on setting up a link to the suit, and are awaiting the response from the county.