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Recent Blog Posts
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."
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - McLinden v. Commonwealth
License Suspension Upheld Where Driver’s Refusal Based on Location of Blood Draw
McLinden v. Commonwealth, Dept. of Transportation, Bureau of Driver Licensing
Commonwealth Court of Pennsylvania
Unpublished; 2013 WL 5973940
Driver’s conditional consent to blood testing constituted a refusal where he insisted upon the blood draw being at a location other than a police trailer next to a DUI checkpoint that was staffed with a phlebotomist.
Officer’s Opinion That Defendant’s Ability to Drive Was Diminished by Alcohol Impairment Should Have Been Excluded on Basis It Expressed Ultimate Opinion of Guilt
Commonwealth v. Canty
___ N.E.2d ___, Mass., 2013 WL 5912050 (Mass.) No SJC-11315
This case involves the limitation of lay witnesses (including police officers) concerning opinions about the ultimate question of guilt. Though they may testify as to a defendant’s apparent intoxication, they may not express an opinion as to whether the accused was operating under the influence.
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - State v. Berg
State v. Berg (2013)
District Court Tenth Judicial District
County of Anoka (Docket No. 02-CR-13-4444)
DUI suspects have a constitutional right to refuse consent to chemical testing absent a warrant or sufficient exigent circumstances, and the exercise of that right cannot be criminalized. See Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523, 540 (1967).
“If the exercise of a constitutional right is criminalized the rights afforded United States citizens loses all meaning. The officer, upon learning Defendant was invoking her right to refuse a search had the ability to request a warrant and force Defendant to submit to testing. The officer chose not to get a warrant. The state’s right to test Defendant was lost at that point. Therefore, this Court grants Defendant’s motion and will dismiss County [sic] I of the complaint."
EDITOR’S NOTE: This was a win by NCDD member Charles Ramsay at the trial court level.
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - State v. Butler
Implied Consent Is Not Fourth Amendment Consent
State v. Butler
232 Ariz. 84, 302 P.3d 609
Independent of the implied consent statute, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth's age and a parent's presence are relevant factors for a trial court to consider in evaluating whether consent was voluntary under the totality of circumstances.
Are Statutes Criminalizing or Enhancing Sentences Based on Chemical Test Refusals Constitutional?
HOOVER v. State of OHIO (6 th Cir. 2013)
No. 13–3330.
Unpublished Per Curiam
2013 WL 6284256
Hoover was arrested for drunk driving and refused to take a breathalyzer test. He was charged with driving under the influence under an Ohio statute which doubles the punishment if a breath test is refused and the suspect has a prior conviction. (Ohio Rev. Code 4511.19(A)(2)).
Superbowl Weekend Brings Constitutionally Suspect DUI Checkpoint Arrests
Read my article on the DUI News Blog (www.duinewsblog.org) about constitutionally suspect DUI Checkpoint operations, many of which are operated right here in California. Call me today, or send me an e-mail, if you desire a consultation about your DUI arrest.
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - Missouri v. McNeely
More On Warrantless Blood Draws - What Constitutes Consent?
In Missouri v. McNeely , which was discussed in our previous post, the United States Supreme Court affirmed its holding in a 1966 case called Schmerber v. California (several California Court of Appeal decisions in the 47-year interim had watered down and misinterpreted Schmerber , declaring that it authorized blood draws without a warrant anytime a person was lawfully arrested on suspicion of driving under the influence). In fact, Schmerber very clearly indicated that a warrant is required except in limited situations where there is no time to get a warrant.
Now that McNeely has overruled those California cases, warrantless blood draws in DUI cases present a bevy of potential issues for suppression of the evidence in the absence of consent.
Consent is an exception to the Fourth Amendment’s warrant requirement. California’s implied consent law (Vehicle Code section 23612) purportedly constitutes an exception where the suspect has been lawfully arrested on suspicion of driving under the influence. It reads, in pertinent part, as follows:
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - Missouri v. McNeely
The U.S. Supreme Court Decision belows underscores why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.
MISSOURI V. MCNEELY
THIS U.S. SUPREME COURT DECISION OVERRULES SEVERAL CALIFORNIA COURT OF APPEAL CASES THAT ERRONEOUSLY HELD POLICE MAY FORCIBLY TAKE A BLOOD SAMPLE FROM A DUI SUSPECT WITHOUT A WARRANT BASED SOLELY ON A LAWFUL ARREST AND MEDICALLY APPROVED MANNER OF DRAWING BLOOD.
WHAT DOES IT MEAN AND HOW IS IT PLAYING OUT?
The Facts in McNeely : DUI suspect refused both breath and blood testing and was subjected to a forced blood draw at a hospital. The State did not argue that exigent circumstances existed which excused a warrant, and the arresting officer did not identify in his testimony any circumstances suggesting that he faced an emergency or unusual delay in trying to obtain a warrant. The blood-alcohol evidence was ordered suppressed by the trial court based on a violation of the Fourth Amendment. The Supreme Court of Missouri affirmed.
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - State v. Newman
Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the State v. Newman case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.
This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.
State v. Newman , ___P.3d___ (2013 WL 2370589 (Or.) – Docket No. S060182
An element of proof for DUI conviction in Oregon is that the accused engaged in a volitional act that led to the driving. The trial court barred the defense from having an expert witness testify about “sleep driving" as part of a defense that defendant’s act of driving was not volitional.
DUI Case Highlights from Paul Burglin San Francisco DUI Attorney - U.S. v. Tavera
Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the U.S. v. Tavera case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.
This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.
Defendant was a passenger in a truck transporting concealed methamphetamine. He denied having any knowledge of it but was convicted nevertheless. His conviction was vacated when it was discovered after trial that the co-defendant driver had told the prosecutor during plea negotiations that Defendant had no knowledge of the drug conspiracy.
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