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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.

 

California DUI Law &DUI Law &Technology hudson on 21 Jun 2010

Ignition Interlock Pilot Program

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.

California DUI Law &DUI Enforcement &DUI Law hudson on 30 Mar 2010

Discretionary Lifetime Suspension on 3rd Offense

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.

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 »

California DUI Law &DUI Defense &DUI Enforcement &DUI Issues &DUI Law hudson on 14 Dec 2007

PAS Test Mandated for Probationer’s in 2009

As I wrote on October 14 of this year, the requirements for people on probation for DUI or alcohol related driving charges will change to a zero tolerance on January 1, 2009. However, in reading the draft legislation, I didn’t notice that the Legislature added a requirement to provide a breath sample in the field, so while non-probationers have the legal right to refuse the Premininary Alcohol Screen (PAS), a person on probation for an alcohol related driving offense will not.

In changing the law to require persons on probation for drinking related driving offenses to provide PAS tests the Legislature did not change the standards relating to how such evidence is acquired, meaning that the same lax standards that apply to it as an optional test will also apply to it as a mandatory test. What this means is that the standards that California has set in place for evidientiary breath testing will not apply, if the State can demonstrate that the machine was in working order, that the person operating the test was trained and that the proper procedures were follwed the test will be admited. More and more we see tests, that weren’t required under the law, fail to meet the lowest level of scientific protocols and yet, increasingly, we see Judges shirk their role as “gate keeper” and let the test in. Even clear violations of California’s rules relating to chemical testing will be tolerated in some jurisdictions. In these Jurisdictions a person may have their probation violated by a number that was generated by a machine that has a margin of error of .02, that may have been operated by an untrained or improperly trained officer (see, CCR 1221.4(a)(3)(A-E); 1221.4(a)(4)), that may not have been calibrated or maintained in accordance with California State law or that may have been adminstered in a manner that is not scientifically valid (See, CCR1219.3; 1221.1). Unfortunately, the probationer will not have the luxury of a jury to try and convince of the injustice, the decision rests with the Gatekeeper, the Judge.

California DUI Law &DUI Issues &Uncategorized hudson on 15 Aug 2007

New California DUI class provider list

Recently, the Department of Health published the 2007 list of approved DUI program providers. The schools may be found on line. These provider’s are the only provider’s authorized by the Department of Health and accepted by the Department of Motor Vehicles for satisfying requirements related to license suspensions, license restrictions and license reinstatements.

California DUI Law &DUI Law &Kapsack & Bair staff on 27 Jul 2007

DUI Questions on Yahoo Answers

We’ve been having a lot of fun using Yahoo Answers to communicate with people about their DUI issues.

You can see the full Kapsack and Bair profile.

Here’s one of our recent answers. We are pretty sure it was the best, but it was not chosen for some reason. Oh well, you can lead a horse to water …

Question
I was pulled over a couple weeks ago at a dui checkpoint in Orange County and took the blood test and got the results that were .08 BAC. I am not proud of this, and am willing to pay the consequences for my actions. I am wondering what that is going to entail. Here is the thing with my case. I am moving to New York on August 1st. My job is transferring me to our firm out in the city and its already all in the pipeline. My court date is august 10th, so I think I am just going to move my start date back because I don’t know if I can go to court earlier. I called a lawyer’s office and they charge 4000 to fight the case, so I think I am just going to go in there alone. I need info on probation, costs, classes, etc. Especially in regards to how that works since I’m moving (I currently live in Cali). Thanks so much in advance for any advice. I really appreciate. Please don’t preach to me, I already feel bad.

Our Answer (from Bruce)
DON’T MAKE ANOTHER MISTAKE. First, roadside checkpoints are generally not constitutional. In order to pass muster, they must have publicity, proper notice, a way to avoid the stop and almost a dozen other REQUIRED criteria. It is unusual for the police to conduct these stops correctly. If the judge decides the police acted improperly in a checkpoint, then the resulting cases are dismissed.

Second, ALL chemical tests have a margin of error of AT LEAST .01. This means you may be below the legal limit, and under the presumption of innocence we all share, this benefit of the doubt goes to you.

Next, most courts will reduce these borderline case to less than a DUI. In fact, given the court you are in, and the facts you presented, the DA is likely to reduce the charges to non alcohol allegations because of the weaknesses I just pointed out.

While four thousand dollars may seem like a lot, you will make it up in saved fines (about ten thousand dollars for a DUI), school costs (about three hundred), license suspension (six months) and jail time. Add in to this the insurance cost for DUI insurance (about $3500 per year for 5 years) and you see why it is cheaper to fight than not.

Of course, you must also remember a DUI is a criminal conviction which may effect the rest of your life.

Driving under the influence was a mistake, not fighting a case like this would be worse.

California DUI Law &DUI Enforcement &DUI Issues hudson on 20 Mar 2007

How to Lie with Statistics, Part 2

In February of this year legislation was introduced to require an Ignition Interlock Device on any car owned by a person convicted of Driving Under the Influence.  Earlier this month I wrote about why I thought this was a bad idea.  In an on-line post “The Spitzer Report” an article regarding the legislation was quoted.  The article cites statistics to support the effectiveness of IID in preventing future DUI’s.  The statistics misrepresent reality.

1)  Spitzer is quoted as saying “California Highway Patrol statistics that show from 2005 to 2006 there was a 14 percent increase in the number of people convicted of driving under the influence with a suspended license for a prior DUI.”  If these driver’s don’t regard the suspended status of their license, why on earth, would they install an ignition interlock device on their vehicle?  The fact of the matter is a certain number of persons will drive with complete and total disregard to the legal status of their driver’s license or sobriety.  I’m not certain why this particular statistic supports the legislation, nor am I sure why this statistic is relevant to deterring future DUI.

2)  “In 2005, there were 23,500 convictions, compared with 26,900 in 2006.”  This statistic again misrepresents the truth.  In 2006 the “lookback” period for prior DUI’s was changed from seven (7) years to ten (10) years. 

The “lookback” period is the amount of time a prosecutor can look back in time to determine if a particular defendant has a prior conviction for DUI.  In 2005, the “lookback” period was seven (7) years meaning that a person who was convicted of DUI in 1998 could be charged with a prior however a person convicted of a DUI in 1997 could not.  In 2006, the lookback period was changed to ten (10) years, meaning that while a person convicted of DUI in 1997 could not be charged with a prior conviction in 2005, they could be charged with a prior conviction in 2006.  This increased the number of driver’s who could potentially be charged with a prior offense rather dramatically as it added every person convicted of DUI between 1996 and 1999 liable for a prior conviction.  This change in the law would easily make up the increase in repeat offenders.

Finally, the article which Spitzer cites in his on-line post concedes, “However, the [DMV] study also found that the device is not effective in reducing DUI convictions or incidents for first-time DUI offenders.”  Which leaves me scratching my head since the ignition interlock is already required for second offenders who wish to be licensed following a one year suspension.  The legislation just seems unduly punitive with no statistical support for the goals it intends on supporting.

California DUI Law &DUI Enforcement &DUI Issues &Technology hudson on 14 Mar 2007

Ignition Interlock for ALL Dui Convicts?

A bill is currently working its way through the California State Legislature (Senate Bill 177) that will require every person found guilty of DUI to install an ignition interlock device on their car.

Ignition Interlock Device-

An ignition interlock device is a machine that is installed in a car between the key and the starter.  The driver must blow into the device prior to the car starting.  If the machine determines that the driver is not “sober” it will not start.  These devices also require periodic testing of the driver, meaning that while the car is on the road the driver must blow into the device.  In the event that the vehicle detects alcohol, it initiates an alarm, the lights and horn will sound until the vehicle is shut off, it does not shut off the engine immediately.

Why this is bad-

The number one reason cited by MADD and the proponents of this change in the law is the increased rate of repeat DUI’s.  The statistic most recently cited by the proponents of this law (who include the lobby group for the manufacturer’s of these devices) includes all of the new repeat offenders added to the statistic since the “look back” period was changed from seven years to ten thereby increasing (by at least a third) the number of persons subject to inclusion in any repeat offender statistics.  The statistics in New Mexico, the only State to have a mandatory IID requirement for first offenders have been seriously manipulated to create the illusion of effectiveness.

This law will unfairly effect the working poor more significantly than the rich.  The Ignition Interlock Device must be purchased or leased from a provider.  The device must be brought in to a licensed provider every so often to have data downloaded and have its calibration verified, this too costs money.  What will the people who can not afford these devices do?  They will either sell their existing car (and purchase another car in someone else’s name), or transfer ownership to another person.  Once the title is no longer associated with the convicted driver, the Ignition Interlock is no longer required.  It doesn’t matter who’s driving the car, only to whom the car is registered.  While this will not satisfy the requirement that a device be on any car driven by the convicted driver, it is only possible to verify that any car owned by the driver has an ignition interlock installed.

The law will adversely impact the lease car industry.  The IID is hard wired into a car meaning that it must be bolted to the car, the damage caused by the installation violates the terms and conditions of most automobile leases.

The device is non-specific for alcohol.  I have had client’s who could not start their car shortly after smoking a cigarette or using mouth wash.  Many of the defenses we use to challenge criminal cases are applicable to these machines as there are no safeguards.  Some gums and other breath fresheners will cause positive measurements; again the car will not start.  The lack of specificity could result in sober people not being able to start their car to drive to work or appointments.

California DUI Law &DUI Law hudson on 29 Jan 2007

New Laws for the New Year

Welcome to 2007, the Legislature, in it’s infinite wisdom has changed the laws effecting California drivers and most importantly, California Commercial drivers.

Increased License Suspensions

Effective January 1, 2007, upon conviction an individual who is found guilty, or pleads “no contest” to a DUI with either the high BAC (blood alcohol concentration) enhancement (.20 or above) or a refusal allegation (having refused to provide a sample of blood or breath in a dui alcohol case or blood or urine in a dui drug case) will have a 10 month suspension imposed on their driving privilege. This suspension is four months longer than it was through 2006. The statute does have a provision for an immediate restricted license provided certain documents and fees are paid to the DMV and the license is not suspended for any other reason.

Commercial Driver Changes

Any conviction for commercial vehicle violations must be reported to the driver’s home state. This places an additional burden upon the DMV in California to notify the commercial driver’s home state of vehicle code violation convictions in California.

A conviction for hit-and-run, in any type of vehicle (commercial or private car) will result in a one year suspension of the driver’s commercial driving privilege. (Similar to the suspension for a DUI conviction).

A second conviction for hit-and-run will result in a lifetime revocation of the commercial driving privilege.

Please be aware that all of these changes go into effect upon conviction, a conviction occurs when there is a finding of guilt or a “no contest” plea. You are innocent until proven guilty, or you admit the charges.

For additional information on these changes to the Vehicle Code (and others) please go to the DMV Website.