Posted on April 07, 2011 in DUI

Continuing on from my last post , let’s talk about the Barry Bonds trial and how it reflects on general criminal defense strategy. As a San Francisco DUI attorney, I can tell you the same strategies apply if you have been charged with and are being defended for a DUI and I address this directly later in my post.

You may ask, “Why did the defense not put on any evidence in the Barry Bonds trial?"

They did. “Wait," you say, “I just read where the defense rested without calling a single witness!" That’s true, but the defense evidence came in the form of cross-examination of prosecutorial witnesses. Cross-examination has been referred to as the greatest engine ever invented for the discovery of truth. That may or may not be true, but it is undoubtedly one of the most powerful weapons in a trial lawyer’s arsenal.

With cross-examination, a skilled lawyer can control a witness and extract from him or her answers needed to make a persuasive closing argument. Ambiguous responses like “I don’t recall" or “I’m not certain" can be helpful, and testimony that is inconsistent prior statements can be explosive. In the Bonds trial, there were significant contradictions brought out by the defense between different prosecution witnesses discussing the same subject (e.g., former friend Hoskins saying he had conversations with Dr. Ting about Bonds use of steroids, and Dr. Ting saying no such conversations took place).

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 Posted on March 29, 2011 in DUI

March 28, 2011 - I spent the morning observing the perjury trial of United States of America v. Barry Lamar Bonds at the federal courthouse in San Francisco. You might wonder why a San Francisco DUI attorney would do this - what does it have to do with drunk driving defense? - so I will get to that in a minute.

Last week, Bonds’ childhood friend, Steve Hoskins, testified that baseball’s all-time home run leader was complaining about a sore rear end following needle injections at spring training in the early 2000’s. He said his shoe and glove sizes both got bigger, and that Bonds’ use of steroids was “getting out of hand." So much so, said Hoskins, that he secretly recorded trainer Greg Anderson acknowledging Bonds’ use of steroids so he could prove it to Bobby Bonds (Barry’s father who, according to Hoskins, was in denial about Barry’s use of steroids).

This morning, the first witness on the stand was Giants equipment manager Mike Murphy. Murphy testified that Bonds’ hat size increased from 7-¼ to 7-3/8, but also acknowledged that Willie Mays’ hat size also increased about the same amount after his retirement. Nobody has ever said that Willie Mays used steroids.

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 Posted on March 21, 2011 in DUI

CONSEQUENCE OF DRUNK DRIVING ARRESTS AND CONVICTIONS ON PROFESSIONAL LICENSES

Business & Professions Code (B&P) §490, with specified exceptions, enables any licensing board to discipline a licensee who has been convicted of a crime that is “substantially related to the qualifications, functions, or duties of the business or profession for which the license was issued."

Business & Professions Code §480 authorizes licensing boards to deny a license to an applicant based upon a conviction of a crime. A “no contest" plea or expungement order does not relieve a licensee from discipline or prevent denial of a license due to a conviction.

Licensing agencies in California are notified of arrests by the California Department of Justice, which cross-references criminal records against professional licensing records. Some agencies do not wait for a conviction, but instead send a letter to the licensee following notification of an arrest - requesting that the licensee return a completed statement about the incident and pending court case under penalty of perjury. Counsel representing these individuals should caution the licensee about how to respond, as they do not want to incriminate themselves but do not want to ignore the request or show a lack of remorse (it’s probably best to give a very limited response at that juncture).

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 Posted on March 07, 2011 in DUI

Felony Drunk Driving - How Experienced DUI Lawyers Can Sometimes Get It Reduced To A Misdemeanor

There are several ways that a California drunk driving incident in California can be treated as a felony, but prosecutors and judges retain separate discretionary authority to reduce the offense to a misdemeanor in most circumstances.  Here is a passage from Chapter 1 of California Drunk Driving Law, by Kuwatch, Burglin & Simons (James Publishing) that summarizes this authority:

Offenses that may be prosecuted as either a felony or a misdemeanor are commonly referred to as “wobblers.” Even though a prosecutor may charge a wobbler offense as a felony, the trial court may declare it to be a misdemeanor at either the preliminary examination, the time of sentencing, or anytime following a grant of probation. P.C. §17(b).  Although California Penal Code (P.C.) § 1238(d) may, under some circumstances, permit the People to obtain appellate review of a P.C. § 17(b)(5) reduction order by way of a petition for writ of mandamus (see, e.g., People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968), as a general rule the People have no right to appeal such an order. People v. Williams (2005) 35 Cal.4th 817. Alvarez contains a helpful discussion regarding the appropriate considerations for a P.C. §17(b)(5) reduction order.  The Court’s power to reduce a wobbler to a misdemeanor exists even if the felony involves a GBI enhancement.  People v. Feyrer (2010) 48 Cal.4th 426. California Drunk Driving Law, by Kuwatch, Burglin & Simons (James Publishing) Copyright 2011.

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 Posted on February 24, 2011 in DUI

The Latest Hurdles On IID-Restricted Licenses For Multiple DUI Offenders by San Francisco DUI Lawyer Paul Burglin

Even those second and third-time DUI offenders with both violation and conviction dates subsequent to July 1, 2010, are encountering hurdles with the DMV in terms of getting an early IID-restricted license.

Hurdle # 1: Until the conviction is actually recorded by the DMV's Mandatory Actions Unit, local DMV offices will not issue the IID-restricted license. Delays in the recording of the conviction by Mandatory Actions are reportedly backlogged by 8 to 12 weeks! There is no legal excuse for this delay!

Hurdle #2: The DMV is refusing to issue early IID-restricted licenses to second and third offenders who have suffered an APS suspension under the zero-tolerance law for DUI probationers. There is no legal basis for this position either. California Vehicle Code section 13353.3(b)(2)(B) specifies that these one-year administrative suspension actions terminate upon eligibility for an IID-restricted license under Vehicle Code section 13352(a)(3) or (5). It makes no exception for zero-tolerance suspensions regarding DUI probationers.

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 Posted on February 15, 2011 in DUI

San Francisco DUI Attorney Paul Burglin has persuaded a second Superior Court judge in Marin County to order the DMV to grant his client an Ignition-Interlock restricted driver's license. Judge Lynn Duryee and Judge Verna Adams of the Marin County Superior Court have now both ruled in favor of Burglin's clients that the new IID-restricted license law effective July 1, 2010, applies to individuals with violation dates prior to July 1, 2010.

If you are a second or third time DUI offender interested in obtaining an IID-restricted license, contact San Francisco DUI attorney Paul Burglin today at (415) 453-0534.

RULING February 1, 2011

The petition for writ of mandate is granted. Applying its independent judgment, as articulated in Association of Irritated Residents v. San Joaquin Valley Unified Air Pollution Control Dist. (2008) 168 Cal.App.4th 535, 542-543 and Yahama Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 7-8, the court finds that the July 1, 2010 amendment to Vehicle Code section 13352, subdivision (a)(3) applies to Petitioner. The effect of that amendment is to reduce the civil penalty by allowing a convicted driver to seek a restricted license after serving 90 days of the two-year suspension rather than 12 months of the suspension. “…What was said [in In re Estrada (1965) 63 Cal.2d 740] with regard to an amendatory statute lessening criminal punishment equally applies to the reduction or elimination of civil penalties or forfeitures." (People v. Durbin (1966) 64 Cal.2d 474, 479.) Respondent shall grant Petitioner an IID-restricted license upon satisfaction of the conditions specified in section 13353, subdivision (a)(3).

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 Posted on February 07, 2011 in DUI

May the Police Lawfully Stop A Motorist Based Solely On Somebody Reporting a Drunk Driver?

The key to beating a DUI charge in San Francisco---or at least getting a reduced offer on it---is to retain a local San Francisco DUI lawyer who specializes in this field. Such a lawyer will know the ramifications of a DUI conviction and how the California DMV will treat a drunk driving conviction. If you have one or more prior convictions for DUI or DWI (some states refer to it as "driving while impaired"), you want an attorney who is knowledgeable about the ways to attack prior convictions and the adequacy of out-of-state convictions.

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When evaluating the constitutionality of a detention based on a tip to the police, one must preliminarily note the distinction between “anonymous tipsters” (folks who telephone the police about a crime, but do not identify themselves and are not known to the police), “government agents” (snitches working for the constable) and “citizen informants” (chance witnesses or crime victims who expose their identity). With regard to “anonymous tipsters” and “government agents,” there is no presumption of reliability attached to their reports. With “citizen informants,” however, there is a presumption of reliability, but even this presumption does not “dispense with the requirement that the informant—whether citizen or otherwise—furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed....” People v. Ramey (1976) 16 Cal3d. 263, at 269.

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 Posted on January 31, 2011 in DUI

 This material is taken from California Drunk Driving Law (James Publishing), by Kuwatch, Burglin & Simons.  This is copyrighted material and may not be reprinted or published without written permission from James Publishing.

If you are a multiple offender interested in the possiblity of obtaining an IID restricted license as soon as possible, please contact San Francisco DUI Attorney Paul Burglin.

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IID-Restricted Licenses Available for Most Multiple Offenders After Just 12 Months, And Sooner For Some Second And Third Offenders

Effective January 1, 2006, multiple CVC § 23152 (non-injury) and § 23153 (with injury) offenders became eligible for an IID-restricted license after just 12 months of suspension, subject to various conditions and limitations.

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 Posted on January 12, 2011 in DUI

SAN FRANCISCO DUI LEGAL DEFENSES

There are various constitutional and statutory laws that can, in conjunction with the particular facts of criminal charge of drunk driving in California provide a compelling legal defense.

Here are a few of the possible factors that could help find you NOT GUILTY of driving under the influence:

• Did anybody see the car moving with you behind the wheel?
• Did you drive because there was some sort of emergency?
• Did somebody spike your drink with alcohol?
• Did you have an unanticipated reaction to prescribed medications?
• Was your performance on the field sobriety tests (FST’s) bad because of injury to your knees, back, joints or elsewhere?
• Were you asked to perform FST’s on something other than a flat, smooth, and well-lit surface?
• Do you suffer from diabetes or hypoglycemia?
• Did you have a fever during breath testing?
• Were you wearing removable dentures during breath testing?

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 Posted on January 06, 2011 in DUI

The unique aspect of California DUI prosecution in the City and County of San Francisco is that the potential for a good plea bargain is higher than in virtually any other Bay Area county. The reason for this is a mix of good liberal politics and a crowded court docket. Prosecutors at the San Francisco Hall of Justice recognize that drunk driving is not the crime of the century and they know that jurors in this great City tend to be more skeptical and questioning of police tactics and evidence.

The key to beating a DUI charge in San Francisco - or at least getting a reduced offer on it - is to retain a local lawyer who specializes in this field. Such a lawyer will know the ramifications of a DUI conviction and how the California DMV will treat a drunk driving conviction. If you have one or more prior convictions for DUI or DWI (some states refer to it as "driving while impaired"), you want an attorney who is knowledgeable about the ways to attack prior convictions and the adequacy of out-of-state convictions.

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