DUI Defender

Starting July 1, 2010, individuals arrested and then convicted of a first offense DUI, in Alameda, Los Angeles, Tulare and Sacramento counties, will be required to install an Ignition Interlock Device on their vehicle. First offenders will be required to install these devices for 5 months (12 months if an injury was involved). Despite proponents claims that these devices only cost $75 to install and $50/month to monitor, our check of local service centers found much higher prices. A first time DUI offender should expect to pay at least $500 over the the five months on top of other fines and penalties.

The implementation of the Ignition Interlock requirement in the four “pilot” counties was contingent upon funding to be created to cover the costs of the program. The law offices of Kapsack and Bair continue to investigate the source of the pilot program funding (Freedom of Information Requests have been served on the District Attorney for Alameda County, the Department of Motor Vehicles, California Attorney General and other government agencies), it appears likely that if you were arrested for a DUI after July 1, 2010 you will have to add an Ignition Interlock to the cost of losing your first offense DUI case.

Under legislation currently before the Public Safety Committee, if you are arrested and then convicted of a second offense DUI you will be eligible for a restricted license after 90 days of actual suspension after installing the Ignition Interlock Device. In the four pilot counties second offenders will be required to install the ignition interlock devices for a minimum of twelve months.

While it remains to be seen what will happen to individuals currently serving suspensions for multiple DUI convictions or administrative actions, it seems likely that the shortened suspension periods will only effect those persons violating the DUI statututes after July 1, 2010.  It also remains unclear whether persons who’s licenses are suspended through the administrative process will be eligible for the same treatment.  Meaning, if your license is suspended for a multiple time for through the administrative process, and you are convicted of a multiple offense DUI in court, you may not be eligible for the shorter restriction following installation of the Ignition Interlock Device.

Earlier today a bill passed out committee that would permit Judges to permanently revoke the drivers license of persons convicted of a third offense. AB 1601 sponsored by Assembyman Jerry Hill will allow Judges to revoke the driver’s license upon conviction of a third offense DUI.

While both the California DUI Lawyers Association and the ACLU spoke against passage of the bill it moved from the Public Safety Committee to the Assembly Appropriations Committe on a 5-2 vote.

This bill, seems to serve a noble purpose, removing from the roadways persons who seemingly can’t exercise good judgment when they drink alcohol. However, like most legislation in the DUI arena, it makes for great headlines and publicity for the elected official but it doesn’t serve justice and certainly doesn’t accomplish the goal which is to reduce the number of drivers under the influence.

This bill does not limit the “look back” period as state law does (10 years) and would permit a Judge to permanently revoke a person’s license upon conviction of a third offense even if the two prior convictions were many years in the past and/or separated by many years.

What about juvenile DUI’s, do these lapses in judgment or “youthful indiscretions” count? What if the person was under 21 but was a .1? Does this count? Can’t the law provide for a more compassionate punishment for the mistakes of persons who are convicted of DUI? Maybe a longer period with an ignition interlock device, maybe take into consideration the fact that upon conviction the defendant is sentenced to a minimum of 120 days of jail, often times it is the first time a person convicted of DUI actually does any “real” jail time.

It also ignores that alcohol is the number one “self prescribed” medication, several times a person will turn to alcohol to deal with the death of a parent, divorce or other emotional situation. During the grieving period they may turn to alcohol to help “cope” such behavior can result in multiple DUI’s during a very short period, should these otherwise law abiding citizens lose their licenses for life? Take away their livelihood at the very time when they need support in their delicate emotional state?

Providing impetus for the bill was a headline grabbing story regarding two drivers who racked up more than two dozen DUI convictions between them. Unfortunately, the back story is that only 310,000 drivers in California have 3 DUI convictions a relatively small percentage of the more than 22.5 million licensed drivers (<a href="http://www.statemaster.com/graph/trn_lic_dri_tot_num-transportation-licensed-drivers-total-number"). Further, it assumes the worst in people, nearly every adiction clinic advises it's participants that sobriety is a daily task, that mishaps and backsteps occur, to allow a license to be revoked following such an incident seems a travesty.

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.

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.

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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 »

Well in Texas many things are big including DUI fines. There is a special $3000 “driver responsibility fee” that you can get. One of the driving forces behind this law was Texas State House Transportation Chairman Mike Krusee.

Seems like driving legislation through the legislature is better for Krusee  than driving a vehicle – seems like he just picked up his 2nd DUI arrest and faces this special fine himself.

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.

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?

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