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Recent Blog Posts
World Series And DUI Detentions In San Francisco Bay Area
Those leaving AT&T Park this evening may find themselves getting stopped by the California Highway Patrol or the San Francisco Police Department for any number of reasons. The safest way to avoid it is to not drink and drive, but drinking and driving remains legal in California and it alone is not a basis to stop a motorist unless the he or she is observed drinking and driving at the same time!
If you get stopped and are ultimately arrested on suspicion of driving under the influence, you may be able to get the evidence suppressed and the charges dropped if the police lacked sufficient probable cause to initially detain you.
911 reports – Sometimes police officers are notified by their dispatcher that somebody reported your vehicle as being driven by a drunk driver. That alone is not always enough to justify an enforcement stop, unless the police independently observe something wrong with your driving or the reporting party gives sufficient details about you, your vehicle, and the manner of driving.
San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights - Taylor v. Huerta
Loss of Pilot and Medical Certificates By FAA For Failure To Disclose Prior DUI Arrest
Taylor v. Huerta , ___ F.3d ___, (D.C. Cir. 2013) – Docket No. 12-1140
WL 3762896
Taylor submitted an application for a medical certificate using the FAA's online system, MedXPress. One of the questions asked him about any prior arrests and he answered “no" despite a previous DUI arrest in California (which, ironically, did not even result in a conviction). The FAA discovered the prior arrest on a background check and opened an investigation as to why it was not disclosed. He said he did not read the question carefully, was unaware that prior arrests were now being asked instead of just prior convictions, and that he had just hit a button that put a “no" answer to a number of questions all at once. The answers were submitted under penalty of perjury.
The Court rejected the contention that the omission was inadvertent, holding that “[a] defense of deliberate inattention fails where the applicant is attesting to events about which he has actual knowledge." [cite]. It then slapped him with this rebuke:
San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights - People v. Vangelder
People v. Vangelder (2013)
___ Cal.4 th ___ (Calif. Supreme Court – Docket No. S195423)
Expert testimony that properly working and approved breath-alcohol instruments do not sample breath samples as they are designed to, and thus do not produce reliable results, is irrelevant and inadmissible on the per se charge. The exclusion extends to physiological variability such as body and breath temperature, hematocrit level, gender, and breathing patterns.
The Court characterized expert witness Michael Hlastala’s proffered testimony as a “regulation-based argument" that improperly seeks to trump legislative determinations concerning alcohol limits in deep lung breath. It specifically declined to address whether the limitation applies to the impairment count (it would appear not to).
EDITOR’S NOTE: The holding does not seem to bar challenges based on mouth alcohol or GERD since these are contamination arguments that have nothing to do with partition ratio variability.
San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights - State v. Cooperman
Partition Ratio Evidence Admissible To Defend Impairment Charge Even If Prosecution Only Introduces Breath-Alcohol Test Results To Prove The Per Se Offense
State v. Cooperman (2013)
Arizona Supreme Court – Docket No. CV–12–0319–PR
The Arizona Supreme Court holds that partition ratio variability evidence (either in the general population in the individual specifically) is relevant and admissible in prosecutions for driving while impaired even if the state elects to introduce breath test results only to prove the.08 or higher per se count. The decision cited and followed Supreme Court decisions from California and Vermont on this issue.
In affirming, the Arizona Supreme Court did not address an important aspect of the Court of Appeal’s decision below in State v. Cooperman (Ariz.Ct.App. 2012) 282 P.3d 446. The lower Court additionally held that physiological variability (e.g., breathing patterns, body and breath temperatures, hematocrit levels, gender, etc.) in the general population may be admitted to cast doubt on the reliability of breath-alcohol samples in defense against both the impairment and per se charges. The California Supreme Court noted this holding in Vangelder (see below) but declined to follow it on the per se count.
San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights - People v. Cuevas
Blood Draws At Jail Facility By Non-Physician/Non-Nurse Found Reasonable
People v. Cuevas
___ Cal.App.4 th ___ (2013) (California First District Court of Appeal, Div. 1 – Docket No. A138062)
2013 WL 3963601
The Court reviewed seven consolidated cases involving DUI arrests where the subjects opted for blood testing under California’s implied consent law and six were done at a jail facility. The blood draws were each performed by a trained phlebotomist or blood technician. Police officers testified to observing the blood draw site being cleaned and a needle being used from a sealed package. No evidence of pain or discomfort was presented, and in five of the cases there was testimony that the area was bandaged following the blood draw.
The Court rejected defense contentions that the blood draws failed to meet the constitutional standard of reasonableness because police officers arguably lacked the medical training necessary to testify whether the blood draws were performed in a medically approved manner and were done in a jail facility rather than a hospital.
San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights - Coffey v. Shiomoto
Symptoms of Intoxication and Manner of Driving Held Valid And Relevant Basis for Rejecting Rising Blood-Alcohol Defense in Administrative License Suspension Action
Coffey v. Shiomoto (Director, Calif. Dept. of Motor Vehicles)
___ Cal.Rptr.3d ___, 2013 WL 4196651 (Cal.App. 4 Dist.)
Non-chemical test circumstantial evidence was properly considered an administrative hearing officer to reject a defense expert’s opinion that driver was under.08 percent at the time of driving notwithstanding his post-driving chemical test results of.08 and.09 (Breath), followed by blood draw that later showed results of.095 and.096 percent.
San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights - People v. Jones
Always Poll The Jury Following A Guilty Verdict!
People v. Jones (2013) No. 1-11-3586 (Unpublished)
Appellate Court of Illinois, First District, Second Division.
It often seems like a waste of time and gratuitous torment, but this case demonstrates that polling a jury after a guilty verdict occasionally bears fruit.
A guilty verdict was announced by the foreperson following deliberations. The court told the jurors it was “going to ask each and every one of you whether or not that verdict was your verdict and if it's still your verdict." After polling four jurors, the following exchange occurred:
“THE COURT: Nicholas Mack, was that your verdict and is this now your verdict?
JUROR MACK: No, but yes and no.
THE COURT: Well, your answer can't be yes and no. Is that your verdict now?
JUROR MACK: Yes.
THE COURT: Okay. And was that your verdict when you signed the verdict paper?
JUROR MACK: No.
San Francisco DUI Attorney on constitutionality of police stops
Whether the police lawfully stopped you by reason of a reported complaint to the police about your manner of driving depends on what the United States Supreme Court refers to as “the totality of circumstances." Last month, the high court reviewed the trial court record of a vehicle enforcement stop in Berkeley, California, in a case called Navarette v. California .
In this particular case, the enforcement stop was deemed constitutional based on the following facts:
• Use of 911 system (suggestive that caller was not concerned about the report being traced back to him);
• Detailed description of driving which was consistent with the driving of an impaired motorist (i.e., it was more than just a conclusory statement that the suspect was a drunk driver - it specifically described a reckless manner of driving);
• Detailed description of car (the vehicle style and license plate number were provided)
• Description of location and direction of the vehicle was given;
NCDD Journal Case Highlights from San Francisco DUI Attorney Paul Burglin
Participation in Florida’s Discovery Scheme Mandates Defense Disclosure of Independent Blood Analysis Even If Expert Not On Witness List
Kidder v. State , 117 So.3d 1166 (2013) (No. 2D12-3535)
Florida District Court of Appeal (2 nd District)
In Florida, a defendant’s election to participate in statutory discovery (which includes depositions) triggers a reciprocal requirement of disclosure. This includes the blood-alcohol report of a defense expert even if the defense does not intend to call him or her as witness. If the defense does not elect to participate, the only discovery that must be disclosed by the prosecution is Brady material (i.e., exculpatory discovery). In that circumstance, the prosecution does not have to send a blood split to a defense expert for independent analysis. Yet the Florida Court, while recognizing that this presents a Hobson’s Choice to the defense (have the blood sample retested, but disclose any incriminating result to the prosecution), finds no Fifth or Sixth Amendment problem with the mandatory disclosure and rejects the contention that it’s work product.
NCDD Journal Case Highlights from Paul Burglin San Francisco DUI Attorney
Attorney Advertising Held Unethical (And Subject To State Bar Discipline) Where Competitor’s Name Used As A Keyword
2010 Formal Ethics Opinion 14 (NC April 27, 2012).
Opinion of North Carolina State Bar Ethics Committee rules that it is a violation of the Rules of Professional Conduct for a lawyer to select another lawyer's name as a keyword for use in an Internet search engine company's search-based advertising program.
Inquiry: Attorney A participates in an Internet search engine company's search-based advertising program. The program allows advertisers to select specific words or phrases that should trigger their advertisements. An advertiser does not purchase the exclusive rights to specific words or phrases. Specific words or phrases can be selected by any number of advertisers.
One of the keywords selected by Attorney A for use in the search-based advertising program was the name of Attorney B, a competing lawyer in Attorney A's town with a similar practice. Attorney A's keyword advertisement caused a link to his website to be displayed on the search engine's search results page any time an Internet user searched for the term "Attorney B" using the search engine. Attorney A's advertisement may appear to the side of or above the unpaid search results, in an area designated for "ads" or "sponsored links."
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