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DUI Enforcement &DUI Issues &DUI Law &Kapsack & Bair &Notable DUI Defendants hudson on 28 Aug 2012

SF Archbishop Suspected DUI in San Diego

Over the weekend the newly appointed Archbishop for San Francisco was arrested in San Diego. Mr. Kapsack was quoted in an Oakland Tribune article relating to the caution that District Attorney’s will exercise in evaluating evidence and determining whether charges should be filed. Our office often tries to intervene in the process between arrest and filing to put forward defense strategies and prevent charges from being filed, for regular citizens as well as high profile citizens. Early intervention may prevent charges from being filed. Read the Oakland Tribune Article.

DUI Enforcement &Notable DUI Defendants hudson on 28 Jan 2008

Big Verdict for Little Person

A couple of weeks ago, Matt Roloff, one of stars of the television show, Little People Big World went to trial on charges that he drove his car while he was under the influence of alcohol and failed to maintain his lane. He was arrested in 2006 however it took until earlier this month for his case to actually go to trial. He stated that he was driving his wife’s car that was outfitted with pedals custom fit for her, therefore her car couldn’t accomdate his stature, the arresting officer indicated that he could detect a moderate odor of alcohol and Mr. Roloff declined to provide a chemical test.

While the Jury was deliberating, one of the jurors searched the internet for additional information, this is forbidden as a Jury may only properly consider evidence and argument provided during the trial. Instead of requesting a mistrial for juror misconduct, Mr. Roloff’s attorney waived the jury and requested the Judge to make a decision based on the evidence, that decision was “not guilty.”

Notable DUI Defendants hudson on 12 Jan 2008

Clinton Advisor Arrested for DUI

In New Hampshire, the night before the primary election, Sidney Blumenthal was arrested for suspicion of DUI with a high speed allegation. The Officer alleged that Blumenthal was driving 70 miles per hour in a 30 mile per hour zone. Further, the Officer alleges that he saw Blumenthal stop at an intersection. Hmm, nothing illegal about that, additionally the Officer saw Blumenthal “drifting in his lane,” which in many jurisdictions isn’t illegal, leaving the lane is required.

The simple fact here is that Blumenthal has been tried and convicted in court of public opinion before having the benefit of his day in court. Too frequently the media writes what law enforcement states and leaves the citizen to twist in the wind while their attorney is left to fight the charges in the media and the courthouse. While the Officer’s were convinced of his intoxication there was no reference to a specific blood alcohol concentration nor whether his failure to be tested was a crime in and of itself.

DUI Cases &DUI Defense &Notable DUI Defendants hudson on 08 Jun 2007

Lessons from Paris

It suprised many observers that Paris Hilton was remanded into custody earlier today. The simple fact of the matter is she is being treated differently because of her celebrity. Most cases that I have handled that involve driving on a suspended license for an alcohol related offense (California Vehicle Code 14601.2) do not end up in jail, in fact, most appear with a driver’s license and have their cases reduced to either a misdemeanor or infraction “driving without a license.” (CVC 12500). In the rare case, when the defendant has a series of these types of offenses “priors” (more than 2) the person is looking is looking at time in custody.

The Judge ordered Paris into the overcrowded Los Angeles County Jail system. The reality is, in Los Angeles County, no one does all the time to which they are sentenced. The Sheriff must make decisions everyday regarding housing, sometimes he must release lesser criminals to provide housing to more serious criminals. Who will be released so that Paris Hilton will remain in jail? The sad fact is that because of the Judge’s decision today, the Sheriff will lose a cell into which one (or more) more dangerous person(s) could be put, because Paris needs a lesson.

Ahhhh, but now I digress, the reason that this situation is so offensive is that if Paris and her representatives had hired competant DUI counsel she might not be in jail. While I am not intimate with the facts of her case, in fact I know only that her blood alcohol concentration was .08 (right at the legal limt), I strongly believe that if the State had been forced to prove their case, she would not have an alcohol related offense on her record. I think that, regardless of public opinion of her (both good and bad) she would have either been acquitted of the DUI charge after trial, or the prosecutor would have reduced the case to a non-alcohol related offense. Her counsel (legal and/or otherwise) failed her and set her up for the soap opera that her life has become. And, if her defense attorney explained to her the choices, and Paris chose to “plead out” then she shouldn’t be singled out for preferential punishment, she should have been sentenced like others for similar offenses, she should do whatever time is the average for a forty five day sentence and allowed to move on with her life.

While not all of us have the resources to fight a case like Paris Hilton could have, we all can take a lesson and consult with an attorney who is knowledgeable in the area of law that is important to our legal problem, find out what our possible defense are and what are the possible outcomes. A lawyer that regularly practices in the field should be able to tell you what the pros and cons of your case are, without costing you a penny. Consult a lawyer, get informed.

Alcohol Issues &DUI Cases &DUI Defense &DUI Issues &Notable DUI Defendants &Uncategorized hudson on 27 Apr 2007

New Jersey Considers Draeger Breath Test Device

At a recent conference on “scientific evidence” an extensive period of time was spent discussing the challenge to the Draeger breath tester.  The presenters Evan Levow and John Mensel, lead counsel on the Draeger challenge, discussed at length the efforts by Draeger to thwart defense attorney’s from investigating the software of the breath tester.  Their conclusion was that Draeger was essentially asking the State to “trust them” regarding the manner with which the breath was captured, measured and then converted into a blood alcohol concentration.  The fact of the matter is that it should be a open process, how the tester calculates the blood alcohol range based on the breath sample.  People’s liberty rests on the ‘testimony” of this black box, it should be scrutinized before being accepted.  The battle for “open source” code regarding breath testers is also underway in Florida, Georgia and some other States.  While the New Jersey Special Master’s Report concluded that the machine was reliable, it left many issues unanswered.


The device is authorized for use in New Jersey (and in Santa Clara, San Mateo, Contra Costa, Marin and Solano Counties) makes physiological assumptions as well.  While Draeger manufactures accessories that measure breathe temperature and breathe volume the Government chose not to purchase them.  The existence of these accessories reflects the reality that every person has a different lung capacity and some may have a different breath temperature.  The issue of breath temperature has become increasingly relevant as even one degree can cause the breath test to over estimate the blood alcohol concentration by up to 6% meaning that a low breath alcohol measurement could be below the legal limit.  The fact that the State has the capacity to measure the temperature of the breath test and doesn’t arguably denies defendant’s exculpatory evidence and provides a sure fire defense to the “per se” charge of driving with a blood alcohol concentration of .08 or above.


In the balance hang thousands of cases that have been stayed pending a final decision in the case.  The Supreme Court of New Jersey is expected to render a decision on the Special Masters report this summer.  The challenges brought in New Jersey do not directly effect the admissibility of the Draeger breath records in California, however the conclusions of the special master could have some persuasive value in cases that involve Draeger breath testers, breath temperature and possibly even partition ratio.

DUI Cases &Notable DUI Defendants staff on 11 Dec 2006

Notable DUI Defendants

With Nicole Richie joining her costar Paris Hilton with a DUI arrest, there will certainly be a new round on the Hollywood talk shows about celebrity DUI’s. Richie’s case certainly has some items to titillate such as numerous reports of a Mercedes traveling the wrong way on the Freeway and possible addition of marijuana.

However, there are a couple of other recent DUI defendants that might lack star power, but they are notable nonetheless. First we have Denver Judge Johnny Barajas who was arrested November 9 for Driving Under the Influence when he hit another vehicle. Judge Barajas often hears DUI cases in courthouse.

Next we have the DUI case of another judge – St. Clair County Circuit Judge Patrick Young who was arrested earlier this month after his SUV collided with a pickup that sent the other driver to the hospital. Judge Young was returning from a St. Louis Rams game with his boss Chief Judge Jan V. Fiss. Together Young and Fiss were able to use their legal training to deal with the situation — Young refused to take a field sobriety and a Breathalyzer test ; Fiss hid an open can of beer.