Posted on February 03, 2012 in DUI

State of Georgia v. Davis , - S.E.2d - -, 2011 WL 1843166 (Ga.App.)

The State's breath test results were suppressed on the basis of a failure to reasonably accommodate the defendant's request for an independent test.

In rejecting the State's argument that Defendant withdrew her request for an independent blood test after the officer advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements, the Court noted:

“[t]he police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police."

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 Posted on January 20, 2012 in DUI

People v. Varela , - Cal.Rptr.3d - -, 2011 WL 1126036 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 3771

CVC 415 defines a “ ‘motor vehicle’ [a]s a vehicle that is self-propelled."

CVC 473 defines a “ ‘pocket bike’ [a]s a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use."

“A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks."

A pocket bike comes squarely within the definition of motor vehicle. To hold otherwise would require that we ignore the plain meaning of sections 415 and 670.

Varela argues that legislative history refers to a pocket bike as a “device" and not a vehicle. (Citing Sen. Transportation & Housing Com., Analysis of Assem. Bill No. 1051 (June 7, 2005); Sen. Rules Com., Analysis of Assem. Bill No. 1051 (June 30, 2005).) but there is nothing inconsistent about referring to a motor vehicle as a device.

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 Posted on January 12, 2012 in DUI

Open Container – No Chemical Test Required To Establish Alcohol

Derosiers v. District of Colombia , - A.3d - -, 2011 WL 1894854 (D.C.)

Circumstantial evidence held sufficient to support a conviction for possession of an open container of alcohol in a vehicle, even in the absence of a chemical test of the liquid in glass jar that allegedly contained alcohol. Police officer observed and smelled liquid and recognized, based on his experience, distinctive smell of vodka emanating from clear liquid inside glass jar found next to defendant, smell of alcohol emanated from defendant and vehicle containing jar, and defendant, who was asleep in front seat of parked vehicle, appeared to be intoxicated at time jar was found next to her.

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 Posted on January 03, 2012 in DUI

Police Officer’s Opinion Of Guilt

State v McLean 205 N.J. 438 (N.J. 2011)

The NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute.

"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "

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 Posted on December 19, 2011 in DUI

Destroyed Or Lost Video Tape

People of Illinois v. Aronson , - N.E.2d - -, 2011 WL 941306 (Ill.App. 2 Dist.)

A video tape was made on the very issue disputed by the parties (i.e., whether reasonable grounds existed for the officer to believe defendant was driving while intoxicated). Although the officer’s testimony was deemed credible and no finding was made of intentional or willful destruction of the tape, the trial court’s decision to rescind his license suspension was affirmed on the basis that the lost tape, coupled with the defendant’s testimony, outweighed the evidence in the State’s favor.

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 Posted on December 08, 2011 in DUI

State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.)

Court rejected a licensee's contention that the State must 'prove-up' the admissibility, accuracy, and reliability of the breath test equipment before finding a “refusal” to submit to it. 

The Court noted that a similar contention concerning the qualifications of a breath test operator was previously rejected, citing In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981).

Chemical Test Refusals – Foundational Challenges

Editor’s Comment: What if the driver could prove that the test that was requested by the police was in fact inadmissible? For example, what if a driver was asked to blow into an indisputably unapproved device? Would the outcome be different?

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State of Minnesota v. Hester--- N.W.2d ----, 2011 WL 1563683 (Minn.)

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 Posted on June 24, 2011 in DUI

U.S. Supreme Court Holds That Chemical Test Result In DUI Case Is Inadmissible At Trial Unless Lab Technician Who Performed Analysis Is Subject To Cross-Examination By Defense In Court

Decision Trumps Prior California Decisions

Declaring that “[t]he Sixth Amendment’s Confrontation Clause confers upon the accused ‘[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him,’” the United States Supreme Court reversed a drunk driving conviction where the accused was denied the opportunity to cross-examine the actual lab analyst who completed, signed and certified a forensic laboratory report concerning his purported blood-alcohol level. Bullcoming v. New Mexico - Case No. 09-10876.

The National College for DUI Defense (www.ncdd.com) filed a friend-of-the-court brief in the case.

Like several California appellate courts, the New Mexico Supreme Court had erroneously found it constitutional for the prosecution to produce at trial a different forensic analyst familiar with lab procedures but who had no involvement with the analysis or reporting of defendant’s blood sample.

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 Posted on June 14, 2011 in DUI

Bay Area / San Francisco DUI lawyer Paul Burglin filed the following appellate brief in the First District Court of Appeal today (July 14, 2011), urging the Court of Appeal to affirm a ruling that will give multiple drunk driver offenders the ability to obtain an Ignition Interlock Device (IID) restricted license after just 90 days of suspension for a second offender, and six months for a third offender.

Read Brief Here

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 Posted on April 20, 2011 in DUI

Raj Rajaratnam Takes The Fifth, And For Good Reason

Raj Rajaratnam took the Fifth and declined to testify in his own defense against charges of insider trading. Facing decades in prison if found guilty, you might think the guy would take a shot at trying to personally tell his side of the story.

Barry Bonds did the same thing - remaining silent in his trial on perjury and obstruction of justice charges.

There are very good reasons for why both of these men exercised the constitutional right to remain silent, and not just because they have the right. As a San Francisco Drunk Driving / DUI Lawyer when I take drunk driving cases to trial I rarely have my client testify. Some of the reasons are these:

• Defendants are not normally professional witnesses. Unlike police officers and experts who have testified in court countless times, they have generally never experienced the rigor of cross-examination in a trial setting. They are not comfortable looking at the jurors when they testify, whereas professional witnesses will look and talk to them in a conversational tone.

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 Posted on April 13, 2011 in DUI

Here in Part 3 in my series of related posts, I will continue my discussion about the Barry Bonds trial and how it relates to DUI or Drunk Driving Defense cases. As a San Francisco DUI attorney, there are a number of similarities I have seen between this case and those that I am involved in.

When a jury convicts a defendant as part of an agreement to simply end their own division over various charges, and that verdict is inconsistent with its verdict or deadlock on other counts, it’s a violation of their duty as jurors and a denial of due process. The defense will contend that the jury’s failure to unanimously conclude that Bonds had committed perjury before the Grand Jury is inconsistent with their finding him guilty on the obstruction of justice count (the jury deadlocked on the three perjury counts, with one perjury count being 11-1 for guilty).

Bonds was found guilty of having violated Title 18, section 1503, of the United States Code, which prohibits one from intentionally giving false, evasive, or misleading testimony to a federal grand jury. The prosecution will contend that there is nothing inconsistent with the jury having found Bonds that he was intentionally evasive in his testimony, even though there may have been a reasonable doubt as to whether he perjured himself.

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