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California DUI Law &DUI Defense &DUI Law &Kapsack & Bair bruce on 12 Feb 2013

Big Win for DUI Defense at The Appellate Court

In the First Appellate District Court of California, the law firm of Kapsack & Bair won an appeal of their earlier lower-court victory over the California Department of Motor Vehicles (DMV). The Appellate Court not only agreed with the lower court, but chose to issue a “published opinion,” to create a precedent for how law enforcement officers can legally conduct chemical tests.

You can read the full press release or jump right to the published decision.

 

DUI Cases &DUI Defense &Kapsack & Bair staff on 07 Mar 2012

San Francisco DUI Convictions May Be Entitled to Relief

As reported in the news, and as commented on NBC news by Bruce Kapsack, the San Francisco Police Department has admitted to what amounts to fraud in the maintenance of some breath machines. Kapsack & Bair, LLP, will be conducting a full investigation of all San Francisco DUI convictions from the last several years.

If you have had a case in San Francisco, whether you were our client or not, please feel free to send an email to us with your name and case number to see if your DUI may be reconsidered and if you may be entitled to other relief.

We have set up a special email account SFPASFRAUD@kandblaw.com

DUI Defense &DUI Law bruce on 01 Oct 2009

Deposition of Marcelline Burns

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.

California DUI Law &DUI Defense &DUI Enforcement bruce on 29 Aug 2008

Judge Declares San Francisco DUI Roadblock Unconstitutional

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 »

DUI Defense &Kapsack & Bair bruce on 03 Jul 2008

Innovative DUI Trial Tools

Innovative DUI Trial Tools

James Publishing is just about to release my new book Innovative DUI Trial Tools. Here’s the publisher’s synopsis:

How the best lawyers consistently win DUI cases

To win regularly, you need to capture both the hearts and the minds of jurors.

The mind is simpler to persuade. You capture jurors’ minds through your cross examination, if the defense is one of prosecutorial problems … bad machine or bad procedures, or through your witnesses if the defense is something else … GERD, necessity, etc.

The heart is more difficult.  To persuade the heart, you need to give jurors a simple answer to the question posed by family and friends, “How come you let the drunk go?”  You need to make jurors want to let your client off.

Bruce Kapsack’s Innovative DUI Trial Tools provides strategies and language for persuading both hearts and minds.  These methods and arguments have succeeded in trial after trial, and can work for you.

Attention-getting openings
You can’t convince them if they aren’t listening to you.  Here is how to grab jurors in the first sentence and get them thinking that a fellow citizen has been falsely charged:

  • Providing a strong argument, not a trial road map.  §3:04
  • How to make it detailed and personal.  §3:04
  • Filling in the blanks with positive information.  §3:07
  • Pointing out the problems with the prosecution’s case.  §3:08
  • Boosting the officer and prosecution expert so you can knock them down on cross.  §3:10
  • How to use surprise to your advantage.  §3:11 Continue Reading »

DUI Defense &DUI Enforcement hudson on 30 Mar 2008

Cautionary Tale

This article recently appeared in an Arizona newspaper. It relates the story of a woman who appeared to be under the influence by a citizen informant. He watched the woman drink glass after glass of white wine then load up her car with her 4 year old son and head out onto the highway. The citizen informant called the police when she ran a stop sign. The woman drove over to a local mall and the informant followed her, even pointing her out when the police arrived.

The police conducted a dui investigation which the overweight woman had trouble completing, finally she provided a breath sample which measured .04. Still, she was arrested, her child taken away from her as she was taken to jail. At the jail she provided a chemical test that was below the .04 she provided in the field. That didn’t stop the District Attorney from filing charges for DUI instead of apologizing for the conduct of law enforcement.

The truth of the matter was that she was driving home from dental surgery, she stopped for lunch and ordered a mimosa which she didn’t finish as it irritated her mouth, she then switched to water… which was served in a wine glass, repeatedly.

This article is a statement of the sad reality of how one person, who wasn’t doing anything wrong, ended up in a legal pickle.

DUI Defense &DUI Enforcement &DUI Law hudson on 07 Mar 2008

Underage License Ramifications

Many times we are confronted with an under age driver who may be charged with a violation of Vehicle Code section 23136 or 23140 NOT 23152 which is the adult DUI statute. It raises the spector of avoiding the one year suspension, The accused has the right to request a hearing prior to the DMV imposing a one year suspension. The case can base the suspension on either a PAS test or an evidentiary test at the police station, jail, or crime laboratory. In truth, VC 23136 is an infraction which means that it is subject to fines in court but no suspension from the court, however, the under 21 year old driver has a very slim chance of winning the APS hearing as the burden of proof born by the DMv is very low, while they must lay a foundation to use the PAS device (sometimes challenging as the law enforcement agencies frequently fail to comply with accepted standards for maintaining and calibrating the hand held device) and frquently we are able to preclude that number, the subsequent evidentiary test is much more difficult to defeat.

DUI Defense &DUI Law &Kapsack & Bair bruce on 20 Feb 2008

In Defense of Drunk Drivers

How can you defend drunks? That question is posed to those of us specializing in this field more than any other. Lawyers who specialize in murder cases, where the evidence is usually much stronger, are not asked that question. It seems to be a given that a man who is accused of killing his wife is entitled to a strong defense, but not someone who is accused with less evidence.

People say if you drink, you drive, you lose; but that’s not the law. The law in every state of this union is that you CAN consume alcohol and drive, so long as you do so responsibly. So is it wrong for me to represent a person who is stopped for an expired registration and who only had one drink?

Continue Reading »

Alcohol Issues &DUI Cases &DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 04 Feb 2008

Washington State Patrol Laboratory… Busted

Earlier this week a three judge panel finally concluded the drama in King County regarding the Washington State Patrol’s Toxicology Laboratory and oversight of breath testing program. The 29 page indictment found that many of the safeguards employed in proper laboratory protocols were not followed and in fact ignored by the Lab Manager, Anne Marie Gordon.

The panel found that Ms. Gordon authenticated test solutions that were prepared by other laboratory personnel without independent validation. The laboratory protocols called for calibration/accuracy testing solutions to be prepared and independently tested by the lab personnel. The importance of these solutions rests in that the entire breath testing program relies on the accuracy of the solutions to validate the measurements taken by breath testing equipment. The solutions are heated and the vapor is used to simulate human breath, that vapor is measured by the breath testing equipment and the result is compared to the “known” value. Of course, the problem arises when the “known” value isn’t actually “known” and the machines are calibrated to the unknown value. Without knowing what the machine is actually measuring it is difficult to verify the accuracy of the accused citizen’s breath test.

The panel found that other procedures were employed by the lab that resulted in a “culture of compromise.”

DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 22 Jan 2008

NHTSA and Marijuana

As law enforcement steps up its efforts to investigate and subsequently arrest more drivers for driving under the influence we are beginning to see an increase in driving under the influence of drugs cases, or more commonly called, “drugged driving.” We continue to see cases with Ambien and other sleep aids more commonly that those involving marijuana but we are seeing an increase in marijuana as well.

Marijuana cases cause specific problems for law enforcement as there are no standards for quantifying the blood or urine concentration that will result in impaired driving. It is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects. Concentrations of parent drug and metabolite are very dependent on pattern of use as well as dose. The parent drug is the actual drug consumed while the metabolyte is the processed, but still measurable residue from the drug. Unfortunately, many involved in law enforcement are unaware that the metabolyte is not active and is not currently affecting/impairing the test subject.

In fact, the National Highway Traffic Safety Administration (NHTSA) concedes, “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH concentrations. It is possible for a person to be affected by marijuana use with concentrations of THC in their blood below the limit of detection of the method. Mathematical models have been developed to estimate the time of marijuana exposure within a 95% confidence interval. Knowing the elapsed time from marijuana exposure can then be used to predict impairment in concurrent cognitive and psychomotor effects based on data in the published literature.”

While more studies need to be conducted on the effects of marijuana on driving, NHTSA, itself states that “some drivers may actually be able to improve performance for brief periods by overcompensating for self-perceived impairment.” For information see the NHTSA article about Marijuana and human performance.

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