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.

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.

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 armed man on a street corner which was not confirmed by law enforcement was not sufficient evidence to seize and search the person.  The fact that a car is involved is of little import.

Putting aside precedence, let us look at common experience and human nature.  If the police were allowed to stop someone every time they receive an anonymous complaint with no requirement to confirm the facts, jealous wives, husbands, girlfriends and boyfriends would light up police switchboards throughout the country for personal gain.  Neighbors who have issues would report “I think they have drugs” to harass each other.  It would be ridiculous.

The principle of requiring articulable suspicion based on observed facts BEFORE allowing the police to seize a person is a fundamental precept of our free society.  Our founding fathers did not want the government to be able to  stop people based on mere allegations of illegal activities since THAT EXACT ACTION had been used by the British against them.  Houses were entered, people were seized and arrests were made by the British agents merely because someone was ‘alleged’ to be a patriot.
Now, in an effort to combat the “scourge of DUI” Mr. Justice Roberts wants the government to have that same power.  The power of government agents to stop anyone, anywhere, anytime, based merely on an anonymous complaint is not just the beginning of totalitarianism, but the end.  It would allow one officer to ‘anonymously call’ 911 to then allow another officer to make the seizure.

One further point that needs to be made.  The constant use of statistics to show the ‘need’ to violate the Constitution in DUI cases is completely fabricated.  First, a “dui fatality” as defined by the Department of Transportation includes if the deceased was under the influence but sitting at a bus stop and struck by an errant driver.  IN OTHER WORDS the statistics are NOT of accidents caused by drunk drivers, but of ANY accident in which a person died in ANY circumstance so long as that person had been drinking.

Second, the common flu, not the H1N1, kills three times the number of people that the government’s inflated statistics on DUI reports.  Perhaps Judge Roberts would like the government to break down the doors of the infirmed who allegedly did not get a flu shot, since they kill way more people than do possible drunk drivers, upon the anonymous tip of “I heard some sniffing”.

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.

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 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.

Only through the “crucible of cross examination” can the court or jury determine the accuracy of the results from a test. Such examination is necessary to weed out the “fraudulent analyst as well as the incompetent one”. It is cross examination which serves as the quality control unit in these cases.

Not only will it be necessary, as it should be, to bring in the person who tested these samples, it is equally necessary to bring in the person who took the sample. In a DUI investigation, if a blood sample is requested, the person taking the blood must follow rigorous protocols to ensure the blood is not contaminated and later results are accurate. For example, it is easy to understand that if you want a blood sample for alcohol, it would be wrong to wash the arm with alcohol where the needle is going. Anyone could see that would mean the alcohol collected would include the cleansing alcohol and would not be accurate.

Previously some courts would allow a mere written statement from the nurse that she took blood to suffice. Now, the nurse would need to come in to testify that she did in fact NOT use an alcohol saw and various other critical issues. Most every one of us could agree that mistakes happen and it is important to check every step in such a critical situation as criminal convictions.

What is most interesting about this case, and its recent predecessor Crawford v. Washington is that they both rely on one of the oldest cases in Anglo-American jurisprudence; the Trial of Sir Walter Raleigh. Sir Raleigh was tried and convicted of Treason without witnesses coming in to court. They allegedly wrote accusations against Raleigh and he was never allowed to question whether they were true, or not; whether the witnesses were paid or threatened, or any other aspect which we all take for granted. Our Founding Fathers wrote the Bill of Rights with that case in mind, especially the right of confrontation. Now more than 400 years later, our Supreme Court has reaffirmed that position; that one accused of a crime MUST have the people making those accusations appear in court to be queried about their testimony or findings.

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.

Along with my friend Aaron Bortel of the Law Office of Aaron Bortel, I held two days of hearings on this checkpoint. Testimony showed:

• the San Francisco Police did not follow the rules on advance publicity
• proper signage to allow the general public NOT to go in to the stop was nonexistant
• the criteria used to select which cars would be stopped was insufficient
• there was inadequate chain of command, and
• the location of the checkpoint was improper

Each of these factors have been considered critical in DUI checkpoint cases.

Roadblocks have been held to be Constitutional by the United States Supreme Court in a number of cases. In California, the Supreme Court has allowed roadblocks provided they meet several impartial criteria. The main reason for such procedures is to ensure that a roadblock does not become a police tool for prejudicial enforcement.

Allowing an officer to look at cars and select drivers to be questioned based solely on what they look like smacks of discrimination. Maybe the office only picks blacks, or women, or as in my clients case Asians. That is fundamentally wrong

During testimony the Officer in charge of the layout presented a diagram of the location, cone pattern and warning signs. All critical elements according to the California Supreme Court and as required by the Federal Operations Manual. Mr. Bortel then pointed out that if the diagram was correct, then the right of avoidance, a necessity for a roadblock, did not exist. At this point the officer changed his testimony and said the diagram misrepresented where signs had been placed.

I then impeached the officer by showing actual pictures of the scene witch matched the diagram and showed the officer to being less than honest. Additionally, I was able to show that if the officer’s testimony was to be believed, the signs would have been two blocks before the roadblock, another procedural violation.

Given that roadblocks are the least effective means of DUI enforcement, yielding less than a 2% arrest rate; that they create danger to officers and the public; and that they use an inordinate amount of resources (some 20 or so personnel); and that they are really upheld in court, one wonders why they still are used.

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.

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?

This happens on a regular basis and it is not until an attorney obtains the blood test results, usually not until AFTER THE FIRST COURT DATE, and presents it to the DA is the case dismissed as an “error”. Of course the citizen who did nothing wrong now has a record of the arrest to deal with, but no one cares about that, it seems.

Of course we can not forget that in all 50 states the mere arrest, without knowing the blood alcohol level now triggers an immediate suspension of a citizens driving privilege. It then requires an attorney to persuade the department of motor vehicles to return the citizen his or her license.

These are rare cases I can hear people say, but not as rare as you may think, and more importantly, since when is rarity a scale on which your rights depend?

But let’s look at more common inquiries which an attorney would make in these cases. Did you know that diabetes, hypoglycemia, Gastro Esophageal Reflux Disorder, high protein diets and other common medical conditions can cause a FALSE POSITIVE reading on today’s breath machines? I know if I print it here you won’t believe me, so use the web to search for yourself. I’ll wait.

Want to know why this happens; because breath machines DO NOT TEST FOR ALCOHOL. Instead they use light to look for certain chemical bonds between molecules which are found in alcohol, BUT WHICH ARE ALSO FOUND IN OTHER SUBSTANCES.

This was not disclosed by the machine manufacturers, but discovered by defense attorneys who represented these people or PAINTERS and others who use certain chemicals which show up as alcohol on the machines. That’s right, it turns out that people who use industrial solvents will show the alcohol breath profile of someone who drank HOURS after they leave work.

Maybe this kind of ‘hidden ball trick’ is why virtually all the manufacturers of breath machines have been adamant in opposing the release of the information on how the machines work. They also will not sell these machines to independent labs or to the defense.

NOW WHY IS IT THAT WE WILL SPEND MILLIONS ON VOTING MACHINE INSPECTIONS BUT DON’T CARE IF THE MACHINEs USED TO CONVICT PEOPLE MEET EVEN THAT STANDARD?

Now you see some of why I and others like me do what we do. The mere fact that a person is arrested is NOT proof they are guilty. A breath test is not always correct. Innocent people do end up in the system all the time.