Posted on October 31, 2012 in DUI

San Francisco, Sonoma, Marin, Napa DUI Attorney - Blood Test Suppression
Suppression of SFST’s
State v. Stricklin
2012 WL 1493830 (Ohio App. 6 Dist.), 2012-Ohio-1877 (April 27, 2012)

Defendant was stopped for an inoperable headlight. The officer testified that he had a “slight odor" of alcohol, bloodshot glassy eyes, and appeared “anxious" (though the latter claim was not in her police report). Defendant denied drinking, and he walked up to the headlight and gave it a bang that got it working. The officer then walked back to her patrol vehicle and determined that he had a prior DUI conviction four years earlier.

Given the de minimus reason for the traffic stop, coupled with the lack of any indicators of actual intoxication, there was not reasonable suspicion to warrant the administration of field sobriety tests.

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 Posted on October 24, 2012 in DUI

San Francisco, Sonoma, Marin, Napa DUI Attorney - Blood Test Suppression
State v. Falconer (2012)
2012 WL 1867159 (Ohio App. 5 Dist.) 2012-Ohio-2293

Ohio law requires defendants to file a pretrial motion to suppress if they wish to challenge the validity and admissibility of an alcohol test. Defendant filed such a motion based on a lack of information being provided about who drew the blood, whether it was done by an authorized person, and the manner of collection, handling, and storage.

Defendant’s motion included its citation of regulations concerning (a) the use of a non-volatile antiseptic on the puncture area; (b) the use of a sterile dry needle into a vacuum container that contains a solid anticoagulant; (c) the blood sample must be sealed in a manner such that tampering can be detected; (d) the container have a label with the suspect’s name, date and time of collection, name or initials of person collecting the sample; and name or initials of person sealing the sample; (e) the sample must be refrigerated when not in transit or under analysis; (f) and chain of custody; and (g) requirements for testing.

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 Posted on October 04, 2012 in DUI

State v. Monserrate-Jacobs
2012 - Fifth Dist. Court of Appeals – Florida – No. 5D12-944

Following a guilty verdict, the defense sought court authorization to interview a juror-nurse concerning her examination of a blood kit (and its expiration date) that was admitted into evidence without objection or limitation, and possible comments to other jurors about it (including two jurors who declined to examine it). None of the witnesses testified about the expiration date on the kit.

Held : The request was untimely since the defense failed to object to the jury viewing the kit and the manner in which it was viewed. Furthermore, the motion was insufficient because it failed to include specific allegations as to why the verdict may be subject to legal challenge. Florida Rule of Criminal Procedure 3.575 requires the moving party to state the reasons why he/she believes that verdict may be subject to legal challenge, and allegations that are “merely speculative, conclusory, or concern matters that inhere in the verdict itself" are insufficient.

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 Posted on September 27, 2012 in DUI

California DUI defense attorney Paul Burglin has just won a critical victory for persons convicted of drunk driving who are seeking early reinstatement of their driving privilege.  In a published decision issued today by the First District Court of Appeal in Matteo v. California State Department of Motor Vehicles, the Court agreed with all legal arguments advanced by Burglin and affirmed the trial court's grant of a petition for writ of mandamus for Burglin's client. 

If you are seeking to have your California driver's license reinstated following a drunk driving conviction in California, or otherwise need legal representation on a DUI related matter, contact Board Certified DUI defense attorney Paul Burglin today.

Following is the entire decision or you can access the PDF here

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 Posted on September 21, 2012 in DUI

State of Wisconsin v. Billips , Slip Copy, 2011 WL 4578555 (Wis.App.)

After arresting defendant for DWI and observing and seizing several open containers that were in plain view, a full search of defendant’s vehicle uncovered marijuana.

Rejecting the claim that the post-arrest vehicle search was unconstitutional per Arizona v. Gant (2009) 556 U.S. 332, the Court noted that Gant “expressly permits searches for evidence relevant to the crime of arrest and does not require police to stop that search once some evidence is found."

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 Posted on September 14, 2012 in DUI

Commonwealth v. Cameron, Slip Copy, 2011 WL 3341091 (Table) (Mass.App.Ct.)

Where a juror acknowledged a language problem in understanding deliberations, and the problem was evidenced on the record as required, the trial court did not abuse its discretion in removing the juror during deliberations.

The normal rule in MA following a juror discharge is that the jury is to be instructed “not only to begin deliberations anew ... but also that the reason for discharge is entirely personal and has nothing to do with the discharged juror's views on the case or his relationship with his fellow jurors.” Commonwealth v. Connor, 392 Mass. at 845–846.

Because the language problem was the obvious reason in this instance, it was permissible to dispense with requirement of advising the panel as to the reason for the discharge.

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 Posted on September 08, 2012 in DUI

Proximate Cause Of Injury Or Death - Evidence Of Other Driver’s Intoxication Deemed Relevant And Admissible

State of Minnesota v. Nelson , - N.W.2d - -, 2011 WL 5829025 (Minn.App.)

In a criminal vehicular homicide case in which the negligent conduct of two motor vehicle drivers intertwines to cause the death of one driver, the trial court abused its discretion by excluding evidence of the victim driver's alcohol consumption while admitting evidence of the defendant driver's alcohol consumption.

Furthermore, the jury instruction must define causation to inform the jury that a guilty verdict requires that the defendant driver's conduct must have played a substantial part in bringing about the death or injury of the victim driver.

Note : Not all states use the 'substantial factor' phrase in their definition of proximate cause.

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 Posted on August 29, 2012 in DUI

Stop Lawful Where Tipster Provides
Sufficient Details and Means To Identify Caller
U.S. v. Chavez , - F.3d - -, 2011 WL 4925884 (C.A.10 (N.M.))

Whether a tip provides reasonable suspicion to make a traffic stop is case-specific. Although no single factor is dispositive, relevant factors include: (1) whether the informant lacked “true anonymity" (i.e., whether the police knew some details about the informant or had means to discover them); (2) whether the informant reported contemporaneous, firsthand knowledge; (3) whether the informant provided detailed information about the events observed; (4) the informant's stated motivation for reporting the information; and (5) whether the police were able to corroborate information provided by the informant.

"All of these factors were present in this case. First, although the caller did not provide dispatchers with his name, he told them he was a Wal–Mart employee at a specific Wal–Mart store and thereby provided the police with information to discover his identity. Second, he stated he had witnessed the events in the parking lot firsthand. Third, he provided the dispatchers with detailed information about the events he witnessed, including the model of each vehicle involved in the disturbance and each vehicle's license plate number. Fourth, he explained he was calling to report a disturbance in his employer's parking lot, which explained his motivation for reporting the incident to police. Finally, Officer McColley verified some of the information provided by the caller—including that there was a black pickup truck and a white Cadillac in the parking lot—before stopping Mr. Chavez. Based on these circumstances, we hold that the caller's tip bore “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop."

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 Posted on August 15, 2012 in DUI

Tip Considered in Connection With Community Caretaking Doctrine

State v. Deccio , 136 Idaho 442, 34 P.3d 1125

A telephone tipster, claiming to be the defendant's wife's best friend, called the police and claimed that the defendant was drunk, suicidal and driving.

The Idaho Court stated that the same test used to deal with anonymous tips in the criminal context should be used in the community caretaking field, and held that the deputy’s enforcement stop of the matching vehicle was illegal where the officer did not observe any vehicle code violations or erratic driving.

“The female caller refused to identify herself or give her address. She merely stated that she was the best friend of Deccio’s wife. The female did not call from home but from a phone at a local bar and indicated that she did not intend to stay there, thus avoiding the possibility of being identified or questioned. There was no indication that the female personally observed or had any first-hand knowledge of Deccio's suicidal or intoxicated condition. The female stated only that she had been speaking with Deccio and his wife and that he had been drinking all day. Moreover, the caller did not distinguish what information she obtained directly from Deccio and what hearsay information she obtained from Deccio's wife concerning Deccio. The magistrate found that, although the caller knew where Deccio lived and the type of vehicle he drove, such information was easily obtainable. The female's prediction that Deccio would not be home if officers were to check did not in itself make the tip more reliable."

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 Posted on August 03, 2012 in DUI

Derr v. State of Maryland , - A.3d - -, 2011 WL 4483937 (Md.)

While the defense bar anxiously awaits the U.S. Supreme Court’s decision in Williams v. Illinois , this Maryland appellate court determined that the Confrontation Clause is indeed violated under the same circumstances presented in Williams (an expert witness introducing and relying upon a non-testifying expert’s DNA analysis as a basis for his own conclusion).

"[B]ecause of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although [a State rule of evidence] allows for an expert to base his or her opinion on inadmissible evidence, to the extent that [this rule] offends the Confrontation Clause, such testimony will not be admissible.

“Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming and testifying as to the expert's own independent opinion."

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