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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 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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