DUI Defender

Recently Chief Justice Roberts fired off an opinion against most of his fellow Justices for not agreeing to review a case from Virginia regarding a DUI stop from an anonymous caller.  The Virginia case was simple; someone called 911 anonymously to report an alleged drunk driver.  Officers responded and found a vehicle matching the caller’s description.  The officers followed the vehicle and despite no bad driving to substantiate the anonymous call, stopped the vehicle.  The Virginia Supreme Court found this to be an unreasonable action in violation of the Fourth Amendment to the Constitution but the State asked the United States Supreme Court to review the decision.  The majority of Justices declined leading to Justice Roberts’ outburst.

What Roberts does not seem to grasp is that the Supreme Court has routinely held that standing alone an anonymous tip of illegal activity is not sufficient to accost a citizen UNLESS the illegal activity can be confirmed.  In Florida v. J.L. the Court stated that a 911 call of an Continue Reading »

Although it goes back to 1988, lately we’ve been getting requests for a copy of the transcript of the deposition Marcelline Burns conducted by Kapsack and Bair.

As experts in the field, you will recall that she is the person most responsible for legitimizing field sobriety tests. What many of you may not know is that we were the first law firm to formally depose her.

The transcript of the deposition is available on our main website as one of our DUI Resources.

As the winter Olympics approach we are contacted be more and more persons who are planning on traveling to British Columbia to see some of the events in Whistler. Many of the persons contacting us have read about Canada’s prohibition of person’s charged and/or convicted of driving under the influence in the United States. Unfortunately, this is indeed the case, if you have been convicted of an alcohol related driving crime in the United States your admission to Canada may depend upon the good will of the person you encounter at the border. As a general rule, if you have been convicted, you can not expect to be admitted. That being said, admission is ultimately determined by the person inspecting the documents and making the decision at the border.

For many people, purchasing expensive tickets to sporting events and hotel rooms, the uncertainty is disconcerting. Recently, an article was published regarding the admission policies of the Canadian government. The article accurately states that there are three ways to ensure admission, apply to be a temporary resident, apply for rehabilitation or be deemed rehabilitated. The availablity of the particular process relies upon how much time has passed between the conviction and the attempted admission. For more information check out the article or review the official Canadian website .

I realize not everyone receives The Champion – the trade magazine of the National Association of Criminal Defense Lawyers (NACDL), so I thought I would mention Allen Trapp’s review of Innovative DUI Trial Tools in the July issue.

Allen who serves as Georgia’s Delegate to the NCDD points out that not all of the techniques will work in every jurisdiction – fair enough. He goes on to say

the chapter on opening statements is definitely worth reading, while the chapter on cross-examination alone is worth the price of the book.

Allen also had nice things to say about the chapter on closings

The lawyer who defends DUI cases on a daily basis will find the chapter on closing arguments fertile with practical solutions to nagging problems.

Innovative DUI Trial Tools is currently available from James Publishing.

In the recent story by Sylvia Hsiehin in LawyersUSA on the ramifications of Melendez-Diaz v. Massachusetts, I provided some clarification on the scope of the ruling.

Melendez will be an issue only in criminal DUI prosecutions, not in civil or administrative hearings, noted Bruce Kapsack a criminal defense attorney with Kapsack & Bair in San Francisco.

For more details on what exactly this ruling means see my earlier post,
United State Supreme Court Reaffirms The Constitutional Right Of Confrontation

In a decision that has major implications for citizens accused of driving under the influence (DUI), the U.S. Supreme Court decided the case of Melendez-Diaz vs. Massachusetts. Mr. Diaz was accused of possessing drugs, and pursuant to the usual procedures the alleged drug was sent to a crime lab for analysis. Rather than bringing in the person who performed the testing, the prosecution merely produced a declaration of the test results. The US Supreme Court held that this violates the right to confront a witness guaranteed to all citizens under the Fifth Amendment to the Constitution.

In the context of DUI cases, many jurisdictions allowed the same procedure; that the blood or urine test results could come in merely by way of a sworn affidavit. For years defense attorneys have argued that this violated the accused’s Constitutional right to question a key witness against them. Now it is clear that it does.

The Court stated that many labs are not in fact “neutral”; they are branches of the law enforcement team. As such they “may feel pressure-or have an incentive- to alter the evidence in a manor favorable to the prosecution”. Further, since the labs are products of the police agencies they often “sacrifice appropriate methodology for the sake of expediency”. In other words, sometimes people rush or take shortcuts and sometimes they fudge because they work for the same team.

Continue Reading »

In a press release (following a press conference) the California Highway Patrol announced that up to 80% of the entire force will be working the holiday weekend from December 28, 2007 through midnight January 1, 2008. The funding for this incredible display of law enforcement is a grant from the National Highway Traffic Safety Administration, additional funds will permit the CHP to conduct at least 100 checkpoints and 65 DUI task force operations throughout 2008. Of course, Mother’s Against Drunk Driver’s was present to further its prohibition campaign.

My latest book — Innovative DUI Trial Tools — has been getting some really nice reviews by lawyers across the country. This type of feedback from actual practitioners is encouragement.

I recently bought Innovative DUI Trial Tools ($99 at http://www.jamespublishing.com/books/dui.htm ), and have now read it cover to cover. I took away at least 10 gems that I will put to use immediately. I thought to myself: When is the last time you got that much from a cle? Some of the material may be old hat for those on this listserv with decades of experience. But for the rest of us, I thought the book was informative, easy to use and an excellent addition to my DUI library.

Kudos to Bruce.

Chris
The Angles Law Firm, LLC

I wholeheartedly agree. I read the whole thing in one night and issued some new motions the next day.

Scott C. Nolan
Scott Nolan Law

I received my copy while you all were at the Vegas seminar! I read it and had tons more fun than I would have if I were in Vegas!!!!! Well, not really, but I probably learned as much AND it cost me less than I would have spent in one trip to the tables (because I’m a crappy gambler).

Money well spent!

Jeffrey C. Meadows
Lyons & Lyons Co., L.P.A.

Thanks guys for the nice words!

Amazingly, someone realized that not every person pulled over for DUI is an alcoholic. It seems crazy to me that anyone would believe that a DUI driver is an alcoholic, in fact, some are not guilty of driving under the influence, not mention that many more may be guilty of making a bad decision based on State approved DUI charts (weight = number of drinks/hour) or some other lapse of judgment that put them behind the wheel at or around the legal limit.

The study cited in this article states that approximately 50% of all drivers pulled over are binge drinkers (which the author uses as a criteria to determine that a person is an alcoholic). The author further qualifies the non-alcoholic group as being persons who consumed more than a certain number of drinks the night they were arrested. This may be true, a better study might include the mean BAC for DUI arrests as well as a % breakdown, I sincerely believe that this number will be significantly lower than MADD would have the general public believe…

On Friday the 22nd of 2006, Judge Gorgi of the San Francisco Superior Court ruled
that a San Francisco police roadblock from last September violated the Constitutional rights of drivers. In two separate DUI defense cases, I was able to successfully argue that the roadblock, set up on Geary at Steiner, did not meet the minimal requirements established by the United States and California Supreme
Courts.

Judge Gorgi found a number of violations existed but three, in particular, seemed to bother her. First was the admission that police would stop motorists who did nothing wrong except try to avoid the checkpoint even if they used the route the police created. Additionally, the lack of proper notice
before the check point coupled with its location led her to rule the entire event was wrong. Continue Reading »