DUI Defender

The Governor has signed into law a statute that will impact anyone on probation for DUI. Effective January 1, 2009, if you are on probation for an alcohol related driving offense (DUI [V.C. 23152(a) or (b), DUI with injury [V.C. 23153(a) or (b)). The law changes means that the old probation requiring a probationer “not to drive with a measurable amount of alcohol” will now require a probationer’s blood alcohol measurement to be zero, meaning that a measurement of .01 or more can result in a probation violation.

The statute doesn’t change the legal requirement that the probationer be lawfully stopped, however, it does mean that the odor of an alcoholic beverage alone will most likley serve as grounds for a probation violation prosecution.

The migraine drug Topamax has been revealed to also help people suffering from alcoholism. The drug available by prescription apparently works as a dopamine inhibiter and prevents the “feel good” aspect of alcohol. By inhibiting the positive aspects of drinking alcohol participants in the study stopped drinking.

The subjects in the study were consumers of an average of 11 drinks per day, approximately a twelve pack of beer, two bottles of wine or a pint of 80 proof liquor. After taking the drug many of the study participants stopped drinking completely, the study did not require the participants to stop or even reduce their alcohol intake.

About one in five participants were unable to complete the study as the side effects, such as difficulty concentration, tingling, itching, drowsiness and dizziness.

The cost of the treatment is about $350/mo. not including the cost associated with medical doctor visits and oversight.

Many times we have client’s in our office who don’t know the names of the drugs they are taking (under medical supervision). We frequently need to match the description with the actual prescribed drug, this information helps our forensic toxicologist’s determine what if any drug interaction may be responsible for either physical observations of law enforcement or chemical test results. The website provided by the Medical University of South Carolina allows the user to select the shape, color, pattern and other identifying information that may be known. Upon entering some or all of the known information, the search engine provides the likely drug.

The Department of Justice in Watsonville revealed that two separate times in 2006 their breath testing program was flawed, so seriously that the 355 DUI cases affected may be dismissed. The issue arose because the Lab failed the proficiency testing conducted by the State Department of Health Services, while the District Attorney and Crime Lab down played the effect the failed proficiency tests had on the cases involved, the simple fact remained that the machines were not functioning properly, the results are tainted and the prosecutions should be dropped. If we can’t have faith in our prosecutor’s to do the right thing and protect the public from flawed chemical testing, who can we trust.

Cops Writing Cops, a website for law enforcement to complain about other law enforcement not respecting the “shield” and the license it gives to break the law. My favorite is the “dick” section where writers tell their tale of woe, maybe their wife was speeding and was stopped and the stopping officer didn’t honor the “friends and family” get out of jail free card. And, you gotta love the googleads relating to how to beat your ticket(s).

In a recent interview, George Valverde, the Director of the California Department of Motor Vehicles, unveiled several new on-line resources for California drivers. Among the resources mentioned are a site for teen drivers and their parents. The teen site has three main components relating to getting a permit and restrictions associated with a “provisional license,” and “crazy” driving with discussions regarding alcohol and other drugs and their effects, zero tolerance and the responsibilities to provide chemical tests at the request of law enforcement.

An additional resource is aimed at senior driver’s, the emphasis is on training programs and additional resources for senior drivers.

Presumably, the teen site will include new laws and changes to existing law so if you are a teen driver, stay informed.

The Denver Post reported a “voluntary” checkpoint that was set up by a non-profit organization attempting to collect data from driver’s. The check point was volutary but operated under the auspices of the Sheriff’s Department. The checkpoint sought to analyze persons blood, breath and/or saliva. While voluntary in description, many particiapnts felt that they didn’t have the right leave, felt pressured to provide samples and were offered as much as $100 to participate in the “study.”

This raises an interesting question, with law enforcement watching over, and the subjects not being allowed to leave is the Sheriff’s Department and the Non-Profit Pacific Institute open to civil liability for false imprisonment or some other civil liability. It is amazing to me that a law enforcement agency would permit, let alone participate, in a “check point,” just who exactly are they “protecting and serving?”

If you think police are law abiding, that they don’t don’t make up reasons to get involved with driver’s, check out this video it illustrates the way some law enforcement officer’s handle their jobs. Unbelievably, the cop accosts this driver in a commuter parking lot, albeit 2:00 in the morning. The driver rigged his car with a dash camera because he had been found guilty of a traffic offense that he didn’t commit, he set up the camera to video questionable situations so that he would have potentially exonerating evidence in the future. Surprise! He now has evidence that supports his case.

In a recent decision the Ninth Circuit clarified a question that we are frequently asked. Many of our client’s who are not citizens are concerned about the immigration consequences of a DUI conviction. We always refer these requests to a qualified immigration attorney, and still do, as the law frequently changes and an immigration attorney is the best resource for up to date information. The major red light for most people seeking visas, green cards, or naturalization is a crime of moral turpitude. The definition of moral turpitude has been, and continues to be a moving target. However, the Ninth Circuit Court held in Marmolejo-Campos v. Gonzalez that while drunk driving is not a crime of moral turpitude the crime of drunk driving without a license is a crime of moral turpitude. This means that driving under the influence without a license can result in deportation proceedings. For additional commentary click here.

As I wrote earier, the source code battle has expanded beyond Florida and New Jersey, in Minnesota prosecutor’s and CMI missed the deadline to provide the defense with the source code for the Intoxilyzer 5000 EN. The court may dismiss the “per se” charge as a result of the failure.

The source code is the software that underlies the basic operation of the breath testing device. It essentially determines how the measurement is converted into blood alcohol concentration measurements used in criminal prosecutions. The reason why the code is important is that the software averages the readings taken during the sample to create a number, many scientists think that the breath alcohol measurement will vary dramatically depending upon where in the breath sample the measurement is taken. This variance could result in an overstatement of the blood alcohol measurement. The software also converts the breath alcohol measurement into a blood alcohol measurement. Many manufacturer’s of breath alcohol testing equipment have used the “proprietary” software defense, however, it seems to be failing in some court’s.

The “per se” charge as discussed above is a secondary charge that most persons arrested for DUI face, it states that you were DUI because your blood alcohol concentration was .08 or above. The so-called legal limit is now in effect in all 50 states since the award of federal highway funds was tied to legistlature’s enacting the limit. The importance of the “per se” charge should not be underestimated as it provides the prosecution with an alternative theory when a person is stopped for an equipment violation and performs well on field tests and has few if any of the “objective symptoms of intoxication.” (Odor of an alcoholic beverage, thick or slurred speech, red/watery eyes, unsteady gait, etc.).