DUI Cops Target I-5, to San Diego California

California drunk driving lawyer / San Diego California DUI attorney news:

Labor Day update

California Highway Patrol Commissioner Mike Brown will patrol Interstate Highway 5 between Woodland and San Diego as part of the CHP's maximum enforcement effort over the Labor Day weekend.

The CHP said the top brass of the state police in Oregon and Washington will follow suit as part of a "Stay Alive on I-5" enforcement campaign.

Eighteen people died within 24 hours on California roads during the Fourth of July holiday, the CHP said, and the maximum enforcement this weekend is geared to ending the summer on a more positive note.

Last year 46 people died in collisions during the Labor Day weekend and 1,749 people were arrested for California DUI, the CHP said.

Napa CHP Capt. Mark Rasmussen said Commissioner Brown will have plenty of company over the weekend.

"He will be joined by up to 80 percent of all uniformed personnel from 6 p.m. on Friday through midnight on Monday," Rasmussen said.

There were no fatal crashed in the CHP's Napa jurisdiction last year during the Labor Day weekend, but 16 people were arrested for DUI, Officer Jaret Paulson said.

Honorary Badges not to be used if stopped for DUI in California

California drunk driving criminal defense attorney news

Push to stop badge-holders from displaying during California DUI investigation

SACRAMENTO California

The Attorney General's Office is reclaiming honorary police-type badges it gave its 1,200 California attorneys because the agency has declared the practice - common in local government - to be illegal.

In turn, local enforcement agencies are reviewing their policies, since the formal opinion by the Attorney General's Office says the badges - sometimes displayed by California DUI suspects during California DUI investigations - resemble those of cops, can be misused by recipients, who are not sworn law-enforcement officers.

A controversy arose after a legislative staffer for Assemblyman Mervyn Dymally, D-Compton, showed a legislative badge during a California DUI arrest.

http://abc.com

California DUI Lawyers to get Breath Machine's Source Code?

California DUI defense attorney query

California DUI courts gives, inter alia, a California DUI defendant:

(a) the opportunity to inspect the California DUI machine used to test one's breath,(b) the California DUI instrument's weekly calibration results, and
(c) the breath samples used in the California DUI machine calibrations.

The landmark Trombetta case (below) suggests the Supreme Court indicates that the trial judge must give us the source code in discovery so we can "utilize the data to impeach the machine's reliability"!

Trombetta case:

"...The constitutional duty of the States to preserve evidence is limited to evidence that might be expected to play a role in the suspect's defense. The evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions was met on the facts of this case...


Justice MARSHALL delivered the opinion of the Court.

[1] The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. **2530United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); *481Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.

I

The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor.FN1 The Intoxilyzer analyzes the suspect's breath. To operate the device, law enforcement officers follow these procedures:

FN1. Law enforcement agencies in California are obliged to use breath-analysis equipment that has been approved by the State's Department of Health. See 17 Cal.Admin.Code § 1221 (1976). The Department has approved a number of blood-alcohol testing devices employing a variety of technologies, see List of Instruments and Related Accessories Approved for Breath Alcohol Analysis (Dec. 20, 1979), reprinted in App. 238-247, of which the Omicron Intoxilyzer is the most popular model, see Brief for Petitioner 6, n. 6.

“ Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of ‘ alveolar’ (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer's chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air and then *482 checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant.” 142 Cal.App.3d 138, 141-142, 190 Cal.Rptr. 319, 321 (1983) (citations omitted).

In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test.FN2 Each respondent registered a blood-alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood-alcohol concentrations were presumed to be intoxicated. Cal.Veh.Code Ann. § 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal.Veh.Code Ann. § 23102 (West 1971) (amended 1981).

FN2. Under California law, drunken driving suspects are given the choice of having their blood-alcohol concentration determined by either a blood test, a urine test, or a breath test. Cal.Veh.Code Ann. § 13353 (West 1971 and Supp.1984). Suspects who refuse to submit to any test are liable to have their driving licenses suspended. Ibid.

Prior to trial in municipal court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible,FN3 California law enforcement**2531 officers*483 do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents' motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions.FN4

FN3. The California Department of Health has approved a device, known as an Intoximeter Field Crimper-Indium Tube Encapsulation Kit (Kit), which officers can use to preserve breath samples. App. 247. To use the Kit, a suspect must breathe directly into an indium tube, which preserves samples in three separate chambers. See 142 Cal.App.3d 138, 142, 190 Cal.Rptr. 319, 321 (1983). The breath trapped in each chamber can later be used to determine the suspect's blood-alcohol concentration through the use of a laboratory instrument known as a Gas Chromatograph Intoximeter, which has also been approved by the California Department of Health. App. 242-243. Because the suspect must breathe directly into the indium tube, the Kit cannot be used to preserve the same breath sample used in an Intoxilyzer test. See, supra, at 2530. Other devices, similar in function to the Kit, can be attached to an Intoxilyzer and used to collect the air that the Intoxilyzer purges, see Brief for Respondents 18-19, but none of these devices has yet received approval from the California Department of Health, see Reply Brief for Petitioner 3-4.

FN4. The California Court of Appeal expressed some doubt whether respondents Trombetta and Cox were entitled to appeal their suppression orders and ultimately ordered that their appeals be dismissed. 142 Cal.App.3d, at 140, 143, 190 Cal.Rptr., at 320, 323. The court, however, ruled on the merits of their claims and thereby exercised jurisdiction over their appeals. Id., at 144, 190 Cal.Rptr., at 323. As to Trombetta and Cox, the Court of Appeal decision was comparable to a judgment affirming a suppression order, which is reviewable in this Court under 28 U.S.C. § 1257(3). Cf., e.g., Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 641, 78 L.Ed.2d 477 (1984).

The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents' defenses, the Court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal.App.3d, at 141-142, 190 Cal.Rptr., at 320-321. Relying heavily on the California Supreme Court's decision in People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974), the Court of Appeal concluded: “ Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and *484 systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.” 142 Cal.App.3d, at 144, 190 Cal.Rptr., at 323.FN5 The court granted respondents Ward **2532 and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U.S. 1037, 104 S.Ct. 696, 79 L.Ed.2d 163 (1984), and now reverse.

FN5. People v. Hitch involved another device used to measure blood-alcohol concentrations. With that device, a suspect's breath bubbles through a glass ampoule containing special chemicals that change colors depending on the amount of alcohol in the suspect's blood. 12 Cal.3d, at 644, 117 Cal.Rptr., at 12-13, 527 P.2d, at 363-364. In keeping with California procedures, law enforcement officials in Hitch discarded the ampoule after they had completed their testing, even though the ampoule might have been saved for retesting by the defendant. Relying on this Court's decisions in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 765-766, 31 L.Ed.2d 104 (1972), the California Supreme Court concluded that the Due Process Clause is implicated when a State intentionally destroys evidence that might have proved favorable to a criminal defendant. 12 Cal.3d, at 645-650, 117 Cal.Rptr., at 13-19, 527 P.2d, at 364-370. The Hitch decision was noteworthy in that it extrapolated from Brady's disclosure requirement an additional constitutional duty on the part of prosecutors to preserve potentially exculpatory evidence. See Note, The Right to Independent Testing: A New Hitch in the Preservation of Evidence Doctrine, 75 Colum.L.Rev. 1355, 1364-1368 (1975); cf. United States v. Bryant, 142 U.S.App.D.C. 132, 141, 439 F.2d 642, 651 (1971) (Wright, J.) (Government must make “ ‘ earnest efforts' to preserve crucial materials and to find them once a discovery request is made” ).

For a number of years, there was uncertainty whether the California courts would extend the Hitch decision to the Intoxilyzer. In People v. Miller, 52 Cal.App.3d 666, 125 Cal.Rptr. 341 (1975), a Court of Appeal panel refused to extend Hitch because the Intoxilyzer does not reduce breath samples to a preservable form comparable to the ampoules created with the device involved in Hitch. The Court of Appeal in Trombetta declined to follow Miller, and reasoned that as long as there were other methods of preserving specimens (such as the Indium Tube Kit, see n. 3, supra), the State was obliged to preserve a breath sample equivalent to the one used in the Intoxilyzer. 142 Cal.App.3d, at 143-144, 190 Cal.Rptr., at 322-323.

*485 II

[2] Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed “ what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

[3][4][5] The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264, 269-272, 79 S.Ct. 1173, 1177-1179, 3 L.Ed.2d 1217 (1959); see also Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1196. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112, 96 S.Ct., at 2401. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

*486 Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government's possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant's preparation for trial. For instance, in United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971), and in United States v. Lovasco, 431 U.S. 783, 795, n. 17, 97 S.Ct. 2044, 2051 n. 17, 52 L.Ed.2d 752 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant's ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant's opportunity to put on an effective defense.FN6 458 U.S., at 873, 102 S.Ct., at 3450.

FN6. In related cases arising under the Sixth and Fourteenth Amendments, we have recognized that criminal defendants are entitled to call witnesses on their own behalf and to cross-examine witnesses who have testified on the government's behalf. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).

**2533 We have, however, never squarely addressed the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870, 102 S.Ct., at 3448. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can *487 grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing-as the California Court of Appeal did in this case-the State's most probative evidence.

One case in which we have discussed due process constraints on the Government's failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U.S.C. § 1001. A key element of the Government's case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner's trial, the F.B.I. agents who prepared the investigatory report destroyed the preliminary notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner's defense, the Court ruled that their destruction did not rise to the level of constitutional violation:

“ If the agents' notes ... were made only for the purpose of transferring the data thereon ..., and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Id., at 242, 82 S.Ct., at 308.

In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents' breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the *488 Intoxilyzer.FN7 The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents' notes in order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.

FN7. We accept the California Court of Appeal's conclusion that the Intoxilyzer procedure brought respondents' breath samples into the possession of California officials. The capacity to preserve breath samples is equivalent to the actual possession of samples. See n. 5, supra.

[6] Given our precedents in this area, we cannot agree with the California Court of Appeal that the State's failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents' breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting “ in good faith and in accord with their normal practice.” Killian v. United States, supra, at 242, 82 S.Ct., at 308. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

**2534 [7] More importantly, California's policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.FN8 *489 To meet this standard of constitutional materiality, see United States v. Agurs, 427 U.S., at 109-110, 96 S.Ct., at 2400, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.

FN8. In our prosecutorial disclosure cases, we have imposed a similar requirement of materiality, United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and have rejected the notion that a “ prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel.” Id., at 111, 96 S.Ct., at 2401; see also Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 2568, 33 L.Ed.2d 706 (1972) (“ We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case” ).

Although the preservation of breath samples might conceivably have contributed to respondents' defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health.FN9 To protect suspects against machine malfunctions, the Department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by blank runs designed to ensure that the machine is purged of alcohol traces from previous tests. See supra, at 2530. In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer's determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.FN10

FN9. The Intoxilyzer has also passed accuracy requirements established by the National Highway Traffic Safety Administration of the Department of Transportation. See 38 Fed.Reg. 30459 (1973); A. Flores, Results of the First Semi-Annual Qualification Testing of Devices to Measure Breath Alcohol 10 (Dept. of Transportation 1975).

FN10. The materiality of breath samples is directly related to the reliability of the Intoxilyzer itself. The degree to which preserved samples are material depends on how reliable the Intoxilyzer is. This correlation suggests that a more direct constitutional attack might be made on the sufficiency of the evidence underlying the State's case. After all, if the Intoxilyzer were truly prone to erroneous readings, then Intoxilyzer results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

*490 Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32-34; Brief for California Public Defender's Association et al. as Amici Curiae 25-40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine's weekly calibration results and the breath samples used in the calibrations. See supra, at 2530. Respondents could have utilized these data to impeach the machine's reliability. As to improper measurements, the parties have **2535 identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered. FN11

FN11. Respondents could also have protected themselves from erroneous on-the-scene testing by electing to submit to urine or blood tests, see n. 2, supra, because the State automatically would have preserved urine and blood samples for retesting by respondents. Respondents, however, were not informed of the difference between the various testing procedures when they were asked to select among the three available methods of testing blood-alcohol concentrations. But see Cal.Veh.Code Ann. § 13353.5 (West 1971) (enacted in 1983) (requiring suspects to be informed that samples will be retained only in urine and blood tests). To the extent that this and other access-to-evidence cases turn on the underlying fairness of governmental procedures, it would be anomalous to permit the State to justify its actions by relying on procedural alternatives that were available, but unknown to the defendant. Similarly, it is irrelevant to our inquiry that California permits an accused drunken driver to have a second blood-alcohol test conducted by independent experts, since there is no evidence on this record that respondents were aware of this alternative.

*491 III

[8][9] We conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial.FN12 Accordingly, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

FN12. State courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution. See, e.g., Lauderdale v. State, 548 P.2d 376 (Alaska 1976); City of Lodi v. Hine, 107 Wis.2d 118, 318 N.W.2d 383 (1982).

It is so ordered.

Justice O'CONNOR, concurring.

Rules concerning preservation of evidence are generally matters of state, not federal constitutional law. See United States v. Augenblick, 393 U.S. 348, 352-353, 89 S.Ct. 528, 531-532, 21 L.Ed.2d 537 (1969). The failure to preserve breath samples does not render a prosecution fundamentally unfair, and thus cannot render breath-analysis tests inadmissible as evidence against the accused. Id., at 356, 89 S.Ct., at 533. Similarly, the failure to employ alternative methods of testing blood-alcohol concentrations is of no due *492 process concern, both because persons are presumed to know their rights under the law and because the existence of tests not used in no way affects the fundamental fairness of the convictions actually obtained. I understand the Court to state no more than these well-settled propositions. Accordingly, I join both its opinion and judgment.

U.S.,1984 - California v. Trombetta 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413


California DUI criminal defense attorneys may use this case to obtain the source code for California DUI breath test machines.

California's DUI Checkpoint & DUI Enforement to Kick Off

California Drunk Driving Defense Attorney news

Six o'clock Friday evening is the official start of the Labor Day weekend and a number of law enforcement agencies will be on the lookout for those who are DUI, drunk driving or driving-under-the-influence.

As part of the state Office of Traffic Safety's weekend crackdown on California drunk drivers, the Sonora Police Department, with an assist from the Jamestown office of the Highway Patrol, will establish a California DUI checkpoint from 8pm until 2am Saturday.

The California DUI theme of the weekend throughout the state; "Over the Limit, Under Arrest." The penalty for a first time DUI offense is approximately $10,000.

California DUI defense lawyers anticipate many California DUI arrests.

Successful DUI Breath Test Machine Attacks - Source Code update

Breaking Californai DUI defense attorney news - Breathalyzer attacks

SOURCE CODE OF THE DRAEGER ALCOTEST 7110 MKIII-C

After two years of attempting to get the computer based source code for the Alcotest 7110 MKIII-C, premier DUI defense attorneys in State v. Chun were successful in obtaining the code, and had it analyzed by Base One Technologies, Inc.

By making itself a party to the litigation after the oral arguments in April, Draeger subjected itself to the Supreme Court's directive that Draeger ultimately provide the source code to the defendants' software analysis house, Base One.

Despite Draeger's protestations that the code was proprietary, Base One found that the code consists mostly of general algorithms arranged in a manner to implement the breath testing sequence. "That is, the code is not really unique or proprietary. "

In a report released August 28, 2007, Base One determined:

As a matter of public safety, the Alcotest should be suspended from use until the software has been reviewed against an acceptable set of software development standards, and recoded and tested if necessary. An incorrect breath test could lead to accidents and possible loss of life, because the device might not detect a person who is under the influence, and that person would be allowed to drive. The possibility also exists that a person not under the influence could be wrongly accused and/or convicted.

Draeger reviewed the code, as well, through its software house, SysTest Labs, which agreed with Base One, that the patchwork code that makes up the 7110 is not written well, nor is it written to any defined coding standard. SysTest said, "The Alcotest NJ3.11 source code appears to have evolved over numerous transitions and versioning, which is responsible for cyclomatic complexity."

The best thing SysTest said about the machine was, "The translation from German to English of the comments within the major components shows the logical intent of the programmers to produce reliable and valid test results. SysTest was unable to find any evidence of any intention to mis-direct or re-direct the test results or report anything other than valid results."

SysTest only looked for "mal-ware", not for functioning of the code.

Base One, however, did an extensive evaluation, finding 19,400 potential errors in the code.

Among its findings are:

1. The Alcotest Software Would Not Pass U.S. Industry Standards for Software Development and Testing: The program presented shows ample evidence of incomplete design, incomplete verification of design, and incomplete "white box" and "black box" testing. Therefore the software has to be considered unreliable and untested, and in several cases it does not meet stated requirements. The planning and documentation of the design is haphazard. Sections of the original code and modified code show evidence of using an experimental approach to coding, or use what is best described as the "trial and error" method. Several sections are marked as "temporary, for now". Other sections were added to existing modules or inserted in a code stream, leading to a patchwork design and coding style.

The software development life-cycle concept is governed by one of the nationally and internationally recognized development standards to prevent defects from entering the software during the design process, and to find and eliminate more defects as the software is coded, tested, and released to the field. This concept of software development using standards requires extensive and meticulous supporting data, and notations in source files, and a configuration management system. None of this methodology is evident in the Alcotest code. Further, the decision method of how to allocate the architecture and assignment of tasks does not match any of the software standards. This further substantiates that software development standards were not used to verify or test the software, including the ISO 9000 family of standards.

It is clear that, as submitted, the Alcotest software would not pass development standards and testing for the U.S. Government or Military. It would fail software standards for the Federal Aviation Administration (FAA) and Federal Drug Administration (FDA), as well as commercial standards used in devices for public safety. This means the Alcotest would not be considered for military applications such as analyzing breath alcohol for fighter pilots. If the FAA imposed mandatory alcohol testing for all commercial pilots, the Alcotest would be rejected based upon the FAA safety and software standards.

2. Readings are Not Averaged Correctly: When the software takes a series of readings, it first averages the first two readings. Then, it averages the third reading with the average just computed. Then the fourth reading is averaged with the new average, and so on. There is no comment or note detailing a reason for this calculation, which would cause the first reading to have more weight than successive readings. Nonetheless, the comments say that the values should be averaged, and they are not.

3. Results Limited to Small, Discrete Values: The A/D converters measuring the IR readings and the fuel cell readings can produce values between 0 and 4095. However, the software divides the final average(s) by 256, meaning the final result can only have 16 values to represent the five-volt range (or less), or, represent the range of alcohol readings possible. This is a loss of precision in the data; of a possible twelve bits of information, only four bits are used. Further, because of an attribute in the IR calculations, the result value is further divided in half. This means that only 8 values are possible for the IR detection, and this is compared against the 16 values of the fuel cell.

4. Catastrophic Error Detection Is Disabled: An interrupt that detects that the microprocessor is trying to execute an illegal instruction is disabled, meaning that the Alcotest software could appear to run correctly while executing wild branches or invalid code for a period of time. Other interrupts ignored are the Computer Operating Property (a watchdog timer), and the Software Interrupt.

5. Implemented Design Lacks Positive Feedback: The software controls electrical lines, which switch devices on and off, such as an air pump, infrared source, etc. The design does not provide a monitoring sensory line (loop back) for the software to detect that the device state actually changed. This means that the software assumes the change in state is always correct, but it cannot verify the action.

6. Diagnostics Adjust/Substitute Data Readings: The diagnostic routines for the Analog to Digital (A/D) Converters will substitute arbitrary, favorable readings for the measured device if the measurement is out of range, either too high or too low. The values will be forced to a high or low limit, respectively. This error condition is suppressed unless it occurs frequently enough.

7. Flow Measurements Adjusted/Substitute d: The software takes an airflow measurement at power-up, and presumes this value is the "zero line" or baseline measurement for subsequent calculations. No quality check or reasonableness test is done on this measurement. Subsequent calculations are compared against this baseline measurement, and the difference is the change in airflow. If the airflow is slower than the baseline, this would result in a negative flow measurement, so the software simply adjusts the negative reading to a positive value.

If the measurement of a later baseline is taken, and the measurement is declared in error by the software, the software simply uses the last "good" baseline, and continues to read flow values from a declared erroneous measurement device.

8. Range Limits Are Substituted for Incorrect Average Measurements: In a manner similar to the diagnostics, voltage values are read and averaged into a value. If the resulting average is a value out of range, the averaged value is changed to the low or high limit value. If the value is out of range after averaging, this should indicate a serious problem, such as a failed A/D converter.

9. Code Does Not Detect Data Variations

10. Error Detection Logic: The software design detects measurement errors, but ignores these errors unless they occur a consecutive total number of times. For example, in the airflow measuring logic, if a flow measurement is above the prescribed maximum value, it is called an error, but this error must occur 32 consecutive times for the error to be handled and displayed. This means that the error could occur 31 times, then appear within range once, then appear 31 times, etc., and never be reported. The software uses different criteria values (e.g. 10 instead of 32) for the measurements of the various Alcotest components, but the error detection logic is the same as described.

11. Timing Problems: The design of the code is to run in timed units of 8.192 milliseconds, by means of an interrupt signal to a handler, which then signals the main program control that it can continue to the next segment. The interrupt goes off every 8.192 ms, not 8.192 ms from my latest request for a time delay. The more often the code calls a single 8.192 ms interrupt, the more inaccurate the software timing can be, because the requests from the mainline software instructions are out of phase with the continuously operating timer interrupt routine.

12. Defects In Three Out Of Five Lines Of Code: A universal tool in the open-source community, called Lint, was used to analyze the source code written in C. This program uncovers a range of problems from minor to serious problems that can halt or cripple the program operation. This Lint program has been used for many years. It uncovered that there are 3 error lines for every 5 lines of source code in C.

While Draeger's counsel claims that the "The Alcotest [7110] is the single best microprocessor- driven evidential breath tester on the market", Draeger has already replaced the antiquated 7110 with a newer Windows® based version, the 9510. The computer code in the 7110 is written on an Atari®-styled chip, utilizing fifteen to twenty year old technology in 1970s coding style.

There is no doubt that the Supreme Court should declare this machine to be unreliable. If this happens, based on an agreement entered into over 4 years ago between the State and Draeger, the taxpayers of New Jersey can recover the almost $7 million spent on these machines.

The premier DUI criminal defense lawyer returns to court on September 17th to hash this out, unless the Special Master decides the issues without a hearing.

For those California jurisdictions using the Draeger, California DUI defense lawyers prepare.

How You Can Find a Qualified California DUI Attorney

How to find a qualified San Diego California DUI Defense Lawyer?!

Different types of lawyers handle San Diego California DUI cases, including public defenders, general practitioners, California criminal defense lawyers, California criminal defense attorneys, and DUI Specialists.

A San Diego County California public defender is a California attorney provided at little to provide defense services to people who financially are unable to hire a private San Diego California DUI attorney. Most San Diego County California Districts generally do not offer public defenders services unless you are unemployed, significantly under-employed and/or have no assets.

Some practical questions to begin asking when looking for a California DUI criminal defense attorney are:

What are his or her California Drunk Driving defense attorney's qualifications?

Is he or she a Specialist member of the California DUI Lawyers Association?

Is he or she a member of the National College for DUI Defense?

Whether or not you ultimately end up hiring a true California DUI Defense attorney, it is a smart idea to speak to a California DUI Specialist attorney in this highly complex field.

You can read more -Why use San Diego County's Specialist in California DUI / Drunk Driving and DMV Law - http://www.sandiegoduilawyer.com/why.html

Why not try a Free California DUI / DMV Evaluation at http://www.sandiegodrunkdrivingattorney.net/survey.html

Restitution to California DUI accident victims

California DUI Criminal Defense Attorneys' clients may have to pay restitution in a California DUI case even if restitution was not ordered.

California DUI Prosecutors, California DUI Victims and California DUI Courts can correct an invalid California DUI sentence.

If the original California DUI order did not include restitution to a California DUI victim, or failed to reserve jurisdiction, no compelling or extraordinary reasons need be shown to correct.

California DUI criminal defense lawyers need to be ready to deal with this possible issue in every California DUI accident case.

Major California DUI Crackdown this weekend

California DUI Criminal Defense Attorney news

California's DUI crackdown is major because Labor Day, a holiday celebrated throughout California with parties and parades, has unfortunately become notorious as a day when thousands of drivers make the deadly decision to drive drunk in California.

Mothers Against Drunk Driving (MADD) and California law enforcement agencies today kicked off a major drunk driving crackdown as part of the National Highway Traffic Safety Administration's (NHTSA) national crackdown: "Drunk Driving. Over the Limit. Under Arrest."

Last year in California, 25 people were killed over the Labor Day weekend in California DUI accidents.

MADD San Diego California is teaming up with NHTSA, the California Office of Traffic Safety (CA OTS), the California Highway Patrol (CHP) Border Division and Avoid the 14 to implement tough enforcement of drunk driving laws over Labor Day Weekend. Avoid the 14, composed of the 14 law enforcement agencies in San Diego County, California will be conducting extended-hour California sobriety checkpoints and California DUI saturation patrols over the holiday weekend, joining more than 350 California DUI law enforcement agencies across the state who are stepping up their California drunk driving arrest efforts.

To launch these enforcement activities and announce new state data, California MADD and its California DUI law enforcement partners are holding a press conference at the California CHP Border Division office where key players on the state, local and national level will be discussing the California DUI crackdown and its goals. The CHP Border Division will also be offering ride-alongs during holiday crackdown activities to interested members of the media.

California alcohol-related traffic deaths are higher than at any time since 1997. Preliminary 2006 data from the California Highway Patrol show that in San Diego County alone, 115 were killed in 2006 due to alcohol-related crashes, while 3,052 were injured. Statewide, 1,276 Californians were killed in 2006 in drunk driving crashes in which the driver had a blood alcohol concentration (BAC) of .08 or higher. This past year, nearly 13,500 people across the nation were killed in drunk driving crashes in which the driver had a BAC of .08 or higher, according to the Fatality Analysis Reporting System (FARS) data from NHTSA.

It is important that we use all the California DUI tools and California drunk driving resources available to stop these senseless deaths and to send a clear reminder to California DUI drivers: If you are caught driving drunk this Labor Day weekend, you will be arrested for a California DUI. No exceptions. No excuses, warns the California DUI law agencies.


"California Drunk driving is one of our nation's deadliest crimes and we are working with our partners to eliminate it from our roadways," said NHTSA Deputy Jim Ports. "We need to come up with new solutions to solve the problem that address fatality numbers that have been too stagnant for too long."

Research has shown that highly publicized, highly visible and frequent California DUI sobriety checkpoints reduce alcohol-related crashes and fatalities by an average of 20 percent. Drunk Driving. Over the Limit. Under Arrest. combines the mobilization of thousands of DUI law enforcement agencies in all 50 states with an $11 million national advertising campaign to deliver the message that if you drive drunk, you will be arrested.

High visibility enforcement is one of the four components of California MADD's Campaign to Eliminate California Drunk Driving. The other elements include: mandatory ignition interlocks for all convicted California drunk drivers, development of advanced vehicle technology to detect and stop California drunk drivers, and mobilization of grassroots support.

"There's just no excuse for driving drunk," said Pat Hodgkin of MADD San Diego California. "MADD's goal is to make it literally impossible for people to drive drunk.

The vision behind the Campaign to Eliminate California Drunk Driving is to use new technology, enforcement and community involvement to ultimately prevent a California driver with a BAC of .08 or higher from operating a vehicle. Together with California DUI law enforcement, we are diligently working toward a future without drunk driving crimes." And California DUI criminal defense attorneys protect the rights of California citizens. For info on California DUI defense, go to http://www.SanDiegoDrunkDrivingAttorney.net .

San Diego behind LA County for most Felony DUI's

California DUI criminal defense attorney news

California DUI law-enforcement agencies warned they will be out in large numbers to stop California motorists driving under the influence.

Avoid the 25, a group of law-enforcement agencies from around San Bernardino County, will be cracking down on California drunk driving motorists during Labor Day weekend.

California DUI arrests have increased 20 percent between 2005 and 2006.

California DUI cops plan to conduct 17 California DUI sobriety checkpoints, 55 California DUI patrols and at least three operations targeting underage drinking.

Their county ranked fourth in the state for California DUI arrests in 2006, with 12,343 arrests overall.

For California felony DUI arrests alone, the county came in third behind San Diego California and Los Angeles counties with 441 arrests.

California DUI drivers can be charged with a California felony DUI if they cause an injury in a crash or have been convicted of multiple California DUIs.

http://www.sandiegoduihelp.com/duiblog/index.html

California DUI folks to want the "Lohan" DUI sentence?

California DUI attorney news

Early jail release for California DUI celebrities

Many within the legal system say Lohan and Richie were treated no differently from other drug and alcohol cases that are handled by California DUI defense lawyers through the California DUI / Drug courts.

In Los Angeles County, jail overcrowding requires the Sheriff to use the facilities he has for more serious offenders. In addition to Richie, more than 50 women serving time on similar charges were released Thursday.

There are too many bad California DUI girls and not enough California jail cells. People in the California DUI attorney system has known what's going on, that people do not necessarily serve much custody time for a California DUI. It's a big surprise for the public.

Others arrested for a California DUI may tell their California DUI criminal defense attorneys: I want the "Lohan sentence."

California DUI Prosecutors may respond by overcharging California drunk driving cases to enable judges to give longer California DUI jail sentences.

Lohan could have been charged with a felony but that her plea bargain involved only misdemeanors.

Richie was a second offender charged with California DUI - drugs.

Both Lohan and Richie did better than Paris Hilton, who served some three weeks in jail for a probation violation after pleading no contest to alcohol-related reckless driving.

Paris Hilton obviously was someone a judge knew he could use as an example.

Actor Lane Garrison pleaded guilty to vehicular manslaughter and California drunk driving in a crash that killed a teenage passenger, a case that highlights the possible consequences of a very bad California DUI case.

Garrison faces a maximum sentence of six years and eight months in prison. Los Angeles County prosecutors have asked for four years and eight months. His California DUI defense lawyer will ask for less.

http://www.sandiegoduilawyer.com/blog.html

Recent California DUI Lawyers' Celebrity drunk driving news

California drunk driving defense attorney Hollywood update:

California DUI stars Lindsay Lohan and Nicole Richie have resurrected the initial Paris Hilton question of whether fame provides a soft landing for Hollywood California stars.

On the same day, Lohan got a 1 day jail sentence for California drunk driving and being under the influence of cocaine, Richie served the better part of a 4 day jail sentence for California DUI in 82 minutes - but she reportedly never saw the inside of a jail cell.

Were the slim California DUI punishments the benefit of fame? The answer is yes and no. Their sentences were consistent with others that occur outside the spotlight, according to California DUI attorney experts.

California drunk driving defense lawyers helped them evade any stronger punishment.

The cost was high in negative California DUI lawyer headlines, California DUI defense attorney bills and possible career consequences.

Yet another member of the young Hollywood set has been busted for a California DUI after driving the wrong way down a one-way street in the early morning hours.

Austin Nichols, the TV actor whose best known credit may be as Jake Gyllenhaal's favored workout buddy, was busted on suspicion of drunk driving in Jackson, Michigan.

The John from Cincinnati star was given a DUI Breathalyzer test.

Nichols' blood-alcohol level allegedly measured in at 0.10 percent, barely above the 0.08 percent legal limit. Should the onetime Deadwood actor be convicted of the DUI misdemeanor charge, he would not only join a growing number of celebrities who received a DUI but would face up to 93 days in jail, a $500 fine and plenty of community service.

In addition to the late series, Nichols has also appeared in the film Wimbledon opposite Kirsten Dunst and starred alongside Gyllenhaal in The Day After Tomorrow.

http://www.SanDiegoDrunkDrivingAttorney.net

Lindsay Lohan's California DUI sentence

California DUI defense lawyer news

Lindsay Lohan's California DUI sentence is more of a Nicole Richie than a Paris Hilton.

Although Lohan could have faced up to three years behind prison bars stemming from her dual California DUI arrests in recent months, in the end she will serve just one day in a county jail after pleading no contest Thursday to five misdemeanor drunken-driving and cocaine charges.

Aside from her day trip to lockup, Lohan was sentenced to 10 days of community service, ordered to complete drug treatment and an 18-month alcohol-education program, and put on three years' probation, during which time she's forbidden from associating with drug users.

The 21-year-old tabloid princess was not required to fly in from her Utah rehab retreat to be in the Beverly Hills courtroom. As part of the sentence handed down by Los Angeles County Superior Court Judge H. Chester Horn Jr., Lohan must also attend a three-day county coroner program in which she'll visit a morgue and talk to victims of California drunken drivers.

Lohan's California DUI criminal defense lawyer, Blair Berk (who was in a Malibu courtroom earlier Thursday representing Mel Gibson in his California DUI case), struck the California DUI plea bargain hours after the District Attorney's Office filed seven misdemeanor—but no felony—counts against the rehabbing actress.

In all, Lohan pleaded no contest to two counts each of driving with a blood-alcohol level over 0.08 percent and being under the influence of cocaine, along with one count of reckless driving. Prosecutors agreed to drop two additional counts of California DUI.

She could have faced a maximum of one year in jail if convicted of the charges. She must serve her time and complete her treament by the end of January.

Lohan could face 120 days in jail for another DUI.

California DUI Cops can't stop you for playing music too loud

California DUI Defense Attorney news: Driving with music too loud case thrown out!

Many times a California DUI client tells his California drunk driving lawyer that the California DUI cop pulled him over for playing his car stereo too loud. Well, that ok. And the California DUI cops cannot pull him over that anymore. See California drunk driving attorney case below.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ü No. 06-30368 Plaintiff-Appellee,
v. ý D.C. No. CR-05-00074-BLW
JUSTIN WELLS GRIGG, OPINION Defendant-Appellant. þ
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
March 6, 2007—Portland, Oregon
Filed August 22, 2007
Before: Ronald M. Gould, Richard A. Paez, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Gould
10245
COUNSEL
Thomas Monaghan, Federal Defenders of Eastern Washington
and Idaho, Boise, Idaho, for defendant-appellant Justin
Wells Grigg.
Aaron N. Lucoff, Assistant United States Attorney, Boise,
Idaho, for plaintiff-appellee the United States.
OPINION
GOULD, Circuit Judge:
Appellant-Defendant Justin Wells Grigg appeals the district
court’s denial of his motion to suppress an unregistered automatic
firearm that police officers discovered while conducting
an investigative stop of Grigg pursuant to a citizen’s complaint
that Grigg had been playing his car stereo at an excessive
volume earlier in the day. We have jurisdiction under 28
U.S.C. § 1291. We reverse the district court’s denial of the
motion to suppress the firearm and post-arrest statements and
remand for further proceedings.
I
On April 12, 2005, a grand jury returned a one-count
indictment in the United States District Court for the District
10248 UNITED STATES v. GRIGG
of Idaho, charging Grigg with possession of an unregistered
firearm, an SKS automatic rifle (machine gun), in violation of
26 U.S.C. § 5861(d). Police officers in Nampa, Idaho had discovered
the weapon during an investigatory stop that occurred
because they suspected Grigg of playing his car stereo at an
excessive volume earlier in the day in violation of a local
noise ordinance.
On August 15, 2005, Grigg filed a motion to suppress the
firearm and statements that he made after the stop. Grigg
claimed that the Nampa police violated his Fourth Amendment
rights by conducting a search of his vehicle solely on the
basis of suspicion that he had committed a misdemeanor by
playing his car stereo at excessive volume earlier in the day.
On September 19 and 20, 2005, the district court held a hearing
on Grigg’s motion to suppress. The following facts were
established:
On September 21, 2004, a Nampa resident, Jeffrey Harmel,
called the police to report that a car had driven by his house
at 710 Dufur Street with its car stereo playing very loudly.
Officers Oren McGuire and Mike Roeder of the Nampa
Police Department responded independently. Upon Officer
McGuire’s arrival, Harmel said that “kids” in the neighborhood
had been harassing him with loud music for “years,” and
that he had “caught” the car in question — a Mercury Cougar,
the driver of which was Grigg — “booming” music several
times in the preceding days, and that on one occasion he had
called the police to file a complaint. Although Harmel testified
that he did not know whether the police responded to the
previous complaint, according to Officer McGuire’s testimony,
the police had given Grigg a prior verbal warning.
While filling out a formal citizen complaint, Harmel
pointed down the street to where the offending car was parked
in front of a house at 1800 East Dewey Street. During this
conversation, about one minute after Officer McGuire’s
arrival, Grigg got in the Cougar and drove back toward Har-
UNITED STATES v. GRIGG 10249
mel and Officer McGuire. As Grigg passed, no music could
be heard and he was driving lawfully, but Harmel identified
Grigg as the subject of his complaint. At that point, although
Officer McGuire had not ascertained Grigg’s identity or
investigated possible prior complaints, McGuire told Officer
Roeder, who had arrived, to stop the car to inquire about
excessive noise, determine the driver’s identity, and serve the
driver with a citation and summons. Officer McGuire then
completed the complaint form, which Harmel signed, leaving
blank the unknown personal information about the subject of
the complaint.
On Officer McGuire’s instruction, Officer Roeder spotted
the Cougar and trailed Grigg. Roeder activated his overhead
lights, and Grigg delayed a few seconds before pulling into a
driveway. After the stop, Grigg started to get out of his car,
but Officer Roeder ordered him back inside. As Officer
Roeder approached, Grigg volunteered that he had a “hunting
rifle” inside the car that he was taking to get “fixed.” Officer
Roeder then observed the SKS rifle on the passenger seat
along with ammunition and .380 caliber handgun shells.
Roeder then initiated a pat down search and arrested Grigg
after finding concealed brass knuckles.1
At the suppression hearing, Officer McGuire testified that
he did not intend to arrest Grigg for the suspected misdemeanor
noise violation because under Idaho law he could not
arrest a suspect for a misdemeanor not committed in his presence.
2 Officer McGuire testified that he did not inquire with
1On a motion in limine, the district court later excluded the .380 caliber
shells. Although it did not on that motion exclude the brass knuckles, the
record contains no indication that the government ever moved to admit
them.
2See Idaho Code Ann. § 19-603 (2007) (“When peace officer may
arrest”) (“A peace officer may make an arrest in obedience to a warrant
delivered to him, or may, without a warrant, arrest a person: [1] For a public
offense committed or attempted in his presence; [2] When a person
arrested has committed a felony, although not in his presence; [3] When
a felony has in fact been committed and he has reasonable cause for
believing the person arrested to have committed it . . . .”).
10250 UNITED STATES v. GRIGG
dispatch to check whether in making the prior complaint Harmel
had given the license number of the Cougar. Officer
McGuire testified further that under Nampa Police Department
protocol, a record would exist of Harmel’s previous
complaint, including any prior contact with Grigg and any
verbal warning he received. Officer McGuire testified that
any specific information included in the log, such as a subject’s
name and address, would have been provided by the
previous complainant. Officer McGuire also testified that it
would have been time-consuming to attempt to bring up the
log on his patrol car computer, and that he did not want to
“bother” dispatch with a noise complaint, which “is not that
big of a deal.” Officer McGuire further testified that he
decided to stop the Cougar because all the parties involved
were present. Addressing whether there was an alternate
method of identifying the driver, Officer McGuire stated that
a call to the dispatch was unreliable because the name of the
driver could have been provided only by Harmel, who did not
know Grigg’s name. Officer McGuire conceded, however,
that absent the ability to stop the Cougar directly, a preferred
method would have been to return to the address where the
Cougar was parked at 1800 East Dewey Street and ask about
the driver’s identity.
The district court determined that (1) the investigating officers
did not know the identity or residence of the driver of the
Cougar, (2) the driver was in the process of driving away
before the stop, and (3) the officers sought to stop the driver
to gain more information about Harmel’s noise complaint and
identify the driver. The district court rejected the government’s
proffered alternate theories for the stop: 1) it was not
to undertake a citizen’s arrest because Harmel had not
expressed a desire that the driver be arrested; 2) it was not an
attempt to serve Harmel’s complaint and a summons on Grigg
because Officer McGuire was still in the process of completing
the complaint when the Cougar drove past; 3) and the
government did not meet its evidentiary burden that Grigg
played loud music in the presence of Officer Roeder, which
UNITED STATES v. GRIGG 10251
would have provided probable cause to stop Grigg for a present
noise violation. The district court concluded from these
findings that Officers McGuire and Roeder conducted an
investigative stop under Terry v. Ohio, 392 U.S. 1 (1968),
based on a citizen complaint to gather information on the
alleged completed noise violation.
Because the criminal conduct that the officers were investigating
had already occurred, the district court held that United
States v. Hensley, 469 U.S. 221 (1985), applied even though
that case concerned an investigatory stop based on reasonable
suspicion that the defendant had previously committed a felony
(armed robbery). See id. at 223, 229. In conducting the
balancing test set forth in Hensley between the law enforcement
interest in crime prevention and an individual’s interest
in personal security from governmental intrusion, see id. at
228, the district court found important that the officers did not
know the identity of Grigg and had no certain way of locating
him when faced with the likelihood that the driver of the Cougar
had committed an excessive noise violation and was leaving
the area. The district court rejected Grigg’s arguments that
the police had other less intrusive means of identifying him —
such as requesting specific information from the police logs
on Harmel’s previous complaint or checking the residence
where Grigg had parked his car — due to the unreliability of
these sources of information. Although commenting that it
was “a very, very close call,” the district court held in favor
of the government that the stop was a reasonable method of
resolving the noise complaint.
After the district court denied Grigg’s motion to suppress,
the case proceeded to trial, and on November 18, 2005, a jury
found Grigg guilty of violating 26 U.S.C. § 5861(d) for knowingly
possessing the unregistered SKS automatic rifle. Grigg
timely appealed.3
3In this appeal, Grigg challenges the district court’s denial of his motion
to suppress the firearm and other evidence, and also contends that the trial
verdict cannot stand because of prosecutorial misconduct.
10252 UNITED STATES v. GRIGG
II
The reasonableness of an investigatory stop is reviewed de
novo. See United States v. $109,179 in U.S. Currency, 228
F.3d 1080, 1083-84 (9th Cir. 2000). Such a stop must be
based on reasonable suspicion under the totality of the circumstances.
United States v. Fernandez-Castillo, 324 F.3d
1114, 1117 (9th Cir. 2003). Any underlying factual findings
are reviewed for clear error. United States v. Colin, 314 F.3d
439, 442 (9th Cir. 2002).
III
Most of the constitutional principles at play in this appeal
are well established. The Fourth Amendment protects the
“right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures.”
U.S. Const. Amend. IV. Under Terry and its progeny,
police may, consistent with the Fourth Amendment, stop persons
in the absence of probable cause under limited circumstances.
See Dunaway v. New York, 442 U.S. 200, 207-11
(1979). In particular, law enforcement officers may briefly
stop a moving automobile to investigate a reasonable suspicion
that its occupants are involved in criminal activity. See
United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975);
United States v. Hartz, 458 F.3d 1011, 1017 (9th Cir. 2006);
United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121-
22 (9th Cir. 2002). However, the governmental interest in
investigating possible criminal conduct based on an officer’s
reasonable suspicion may be outweighed by the Fourth
Amendment interest of the driver in remaining secure from
the intrusion. See Delaware v. Prouse, 440 U.S. 648, 654-55
(1979).
[1] An investigatory stop can be undertaken to prevent
ongoing or imminent crime, i.e., when a police officer “observes
unusual conduct which leads him reasonably to conclude
in light of his experience that criminal activity may be
UNITED STATES v. GRIGG 10253
afoot.” Terry, 392 U.S. at 30; see also United States v. Arvizu,
534 U.S. 266, 273 (2002). Further, in Hensley, the United
States Supreme Court held that “if police have a reasonable
suspicion, grounded in specific and articulable facts, that a
person they encounter was involved in or is wanted in connection
with a completed felony, then a Terry stop may be made
to investigate that suspicion.” 469 U.S. at 229 (emphasis
added). The Hensley court explicitly confined its analysis to
the felony context, leaving open the question whether the rule
could be extended to “all past crimes, however serious,” i.e.,
misdemeanors. Id. Thus the Supreme Court’s Hensley decision
did not answer the issue tendered by this appeal. Grigg’s
challenge to the district court’s extension of Hensley raises an
issue of first impression for us.4
A
In Hensley, the investigative stop arose after two armed
men robbed a tavern in the Cincinnati suburb of St. Bernard,
Ohio, and the police department there learned that Hensley
was the getaway driver. 469 U.S. at 223. The St. Bernard
police department issued a “wanted flyer” that described
Hensley and the date and location of the alleged robbery, with
a request that other police departments in the Cincinnati metropolitan
area pick up and hold Hensley in the event that he
were located. Id. The flyer warned that Hensley should be
considered armed and dangerous. Id. Twelve days after the
robbery, police officers in Covington, Kentucky, who were
familiar with Hensley, noticed him in the driver’s seat of a
Cadillac and notified dispatch. Id. at 223-24. Another pair of
Covington officers heard the call, radioed that they had seen
the wanted flyer about Hensley, and one of the officers drove
4Of our sister circuits, only the Sixth Circuit has addressed this issue,
stating that the Hensley rule did not apply to past completed misdemeanors.
See Gaddis v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004)
(“Police may . . . make a stop when they have reasonable suspicion of a
completed felony, though not of a mere completed misdemeanor.”).
10254 UNITED STATES v. GRIGG
to an apartment where Hensley was known to stay. Id. at 224.
When the Cadillac was again spotted, one of the Covington
officers pulled over Hensley and, during the stop, discovered
a weapon. Id. Hensley was arrested for being a convicted
felon in possession of a firearm. Id. at 225.
Upholding the district court’s denial of Hensley’s motion to
suppress the firearm, the Supreme Court employed a balancing
test to weigh “the nature and quality of the intrusion on
personal security against the importance of the governmental
interests alleged to justify the intrusion.” Id. at 225, 228.
Acknowledging the differences between investigating past
criminal conduct and detecting ongoing or imminent crime,
the Supreme Court recognized that the exigencies involved in
crime prevention are attenuated in the context of completed
past crimes:
A stop to investigate an already completed crime
does not necessarily promote the interest of crime
prevention as directly as a stop to investigate suspected
ongoing criminal activity. Similarly, the exigent
circumstances which require a police officer to
step in before a crime is committed or completed are
not necessarily as pressing long afterwards. Public
safety may be less threatened by a suspect in a past
crime who now appears to be going about his lawful
business than it is by a suspect who is currently in
the process of violating the law. Finally, officers
making a stop to investigate past crimes may have a
wider range of opportunity to choose the time and
circumstances of the stop.
Id. at 228-29. However, the Supreme Court stressed that the
law enforcement interest in solving crime might, in some situations,
permit an investigatory stop for a past crime:
Despite these differences, where police have been
unable to locate a person suspected of involvement
UNITED STATES v. GRIGG 10255
in a past crime, the ability to briefly stop that person,
ask questions, or check identification in the absence
of probable cause promotes the strong government
interest in solving crimes and bringing offenders to
justice. Restraining police action until after probable
cause is obtained would not only hinder the investigation,
but might also enable the suspect to flee in
the interim and to remain at large. Particularly in the
context of felonies or crimes involving a threat to
public safety, it is in the public interest that the crime
be solved and the suspect detained as promptly as
possible.
Id. at 229.
Grigg argues that Hensley is distinguishable on its facts
because that case concerned a completed felony, an armed
robbery, that presented a significant public safety risk,
whereas Grigg’s suspected misdemeanor noise violation is a
minor nuisance. In urging us to consider the nature of Grigg’s
purported offense, Grigg contends that the district court erred
by not adequately considering the harmlessness of the misdemeanor
noise violation and that Hensley should not have been
extended to validate the Terry stop here. The government
counters that Hensley need not be limited to completed felonies
because the interest in locating suspects of past misdemeanors
remains of importance in this case and others. Under
this interpretation, the government argues that the actions of
Officers McGuire and Roeder were constitutional because an
investigatory stop of Grigg to identify him as the driver of the
Cougar and inquire about his side of the story was, under the
circumstances, the best approach to resolve the noise complaint,
and thus reasonable under the Fourth Amendment.
[2] Whatever may be the conclusion of the analysis, there
can be little doubt that the Supreme Court’s methodology in
Hensley applies to the circumstances here where the Nampa
police officers undertook an investigative stop to determine
10256 UNITED STATES v. GRIGG
whether Grigg was involved in the past noise violation
alleged in Harmel’s complaint. See In re Stern, 345 F.3d
1036, 1043 (9th Cir. 2003) (“[W]e are bound not only by the
holdings of [Supreme Court] decisions but also by their mode
of analysis.”) (internal quotations omitted; second brackets
added by Stern). The facts of Hensley, however, can be distinguished
because that case concerned a completed felony of
armed robbery, whereas Grigg’s excessively loud music arguably
resulted at most in a misdemeanor violation of the local
noise ordinance that does not endanger the public.5 See Gaddis
v. Redford Twp., 364 F.3d 763, 771 n.6 (6th Cir. 2004)
(“Police may . . . make a stop when they have reasonable suspicion
of a completed felony, though not of a mere completed
misdemeanor.”) In Hensley, the Supreme Court pointed out
the obvious and patent public safety risk in allowing a suspect
of armed robbery to remain at large. See 469 U.S. at 229. This
potential threat of violence created the exigency in Hensley to
stop the suspect that justified foregoing the Fourth Amendment’s
warrant requirement. See id. (“Particularly in the context
of felonies or crimes involving a threat to public safety,
it is in the public interest that the crime be solved and the suspect
detained as promptly as possible.”). In sharp contrast, it
is difficult to imagine a less threatening offense than playing
one’s car stereo at an excessive volume. The absence of any
danger to any person arising from the misdemeanor noise violation
here does not support detaining the suspect as promptly
as possible.
5Although the parties and the district court assumed that Grigg’s playing
of excessively loud music, if true, would have been a misdemeanor violation,
the parties do not specify which state or local ordinance might have
been transgressed. For the purposes of our analysis, we accept the parties’
assumption that a misdemeanor was involved, but we note that Grigg’s
behavior was arguably so mild that possibly only a civil infraction would
have resulted, and not a misdemeanor “crime.” However, if a misdemeanor
crime it was, the playing of music at excessive volume is surely in a
class of relatively innocuous crime, as public safety is not threatened by
violation.
UNITED STATES v. GRIGG 10257
[3] Although the Supreme Court did not expressly limit its
holding, the reasoning of Hensley suggests that we may properly
consider the gravity of the offense in balancing the interest
of crime prevention and investigation against the interest
in privacy and personal security when a court assesses the reasonableness
of a Terry stop. In United States v. Jegede, the
district court recognized the applicability of the Hensley balancing
test that included such a focus on the nature of the
offense, see 294 F. Supp. 2d 704, 708 (D. Md. 2003), where
the facts were to some extent analogous to the circumstances
here. In Jegede, the police had received a telephone complaint
from a car following a taxi that observed the taxi stop and the
driver get out to pull up his pants, which apparently alarmed
the complainant that the driver had been having sex in the
back seat or that there was a woman in the car who might
have been assaulted. Id. at 705. The police dispatch relayed
the complaint to an officer in the field, mentioning “possible
indecent exposure.” Id. When the officer later pulled over the
taxi driver, who by then was acting lawfully, there was no
sign of another person, but the officer detected signs of intoxication
on the driver and arrested him. Id. at 706. Noting that
indecent exposure was only a misdemeanor in Maryland, id.
at 708, the district court held that the stop was unconstitutional
because the concern about criminal conduct by the
untrained complainant, filtered through the dispatch, did not
provide a reliable basis for an officer’s reasonable suspicion
to warrant the investigative stop. Id. at 709 (“Once the officers
located the taxi . . . and saw no dangerous activity, they
could and should have inquired again of the basis for the concern
and suspicion of indecent exposure and then made an
evaluation of reasonable suspicion and/or continued to
observe the taxi to see if other suspicious conduct occurred.”)
(emphasis added).
The court in Jegede perceived that an exigency of danger
must link the past completed misdemeanor conduct to the
officer’s justification to stop a suspect under Hensley. The
district court explained:
10258 UNITED STATES v. GRIGG
It is one thing to uphold a stop on suspicion of a misdemeanor,
not committed in an officer’s presence,
when there is potential for repeated danger, such as
weaving or other dangerous driving. It is quite
another to uphold a stop for a completed misdemeanor
when there is no indication that it will be
repeated, or cause danger to others, and particularly
when the police have the means to identify the
driver.
Id. at 708 (emphasis added). The government is correct that
the Jegede court primarily granted relief to the defendant in
that case because of the unreliability of the complaint, but the
district court nevertheless reasoned that indecent exposure by
its nature has no potential for danger, unlike reckless driving,
which might otherwise countenance a reasonable Terry stop.
In state court cases addressing the identical or similar factor,
the state courts have split, with the decisive issue being
the dangerous nature of the underlying misdemeanor that gave
rise to the Terry stop. In State v. Duncan, 43 P.3d 513, 515,
521 (Wash. 2002) (en banc), the Washington State Supreme
Court held that police could not initiate a Terry stop and frisk
after they observed a suspect who might have committed a
civil infraction (drinking alcohol in public). The Duncan court
acknowledged the principle in Hensley that the traditional
interest in officer safety and crime prevention “may not be
present when dealing with past crime.” Id. at 518 (“The . . .
focus on preventing crimes, and promoting the interests of
justice in arresting felons in Hensley, suggests that the interest
in preventing civil infractions may not be accorded the same
weight.”). The Washington State Supreme Court also underscored
the distinction between felonies and misdemeanors
that bears on the delicate balance between public safety and
personal security from governmental intrusion:
[T]his court has cited favorably the common law rule
requiring a warrant prior to arresting an individual
UNITED STATES v. GRIGG 10259
for the commission of a misdemeanor. . . . This rule
illustrates the higher burden this court imposes upon
officers when investigating lesser crimes. Accepting
the presumption that more serious crimes pose a
greater risk of harm to society, we place an inversely
proportional burden in relation to the level of the
violation. Thus, society will tolerate a higher level of
intrusion for a greater risk and higher crime than it
would for a lesser crime.
Id. at 518-19 (internal citations omitted).
Likewise, in Blaisdell v. Comm’r of Public Safety, 375
N.W.2d 880, 881, 883-84 (Minn. Ct. App. 1985), aff’d on
other grounds, 381 N.W.2d 849 (Minn. 1986), the Court of
Appeals of Minnesota invalidated the stop of a driver who
was seen committing a “no-pay” theft from a gas station
because it was a misdemeanor that is, by definition, inherently
less severe than a felony. In reaching this decision, the appellate
court noted
a legislative recognition that the public concerns
served by warrantless misdemeanor arrests are in
some degree outweighed by concerns for personal
security and liberty. At the very least, because misdemeanor
offenses are considered less serious crimes
than felonies and because police cannot arrest for
misdemeanors unless the offense is committed in
their presence, the public concerns served by seizures
to investigate past misdemeanors are less grave
than the concerns served by seizures to investigate
past felonies and gross misdemeanors.
Id. For this reason, the appellate court in Blaisdell imposed a
per se rule in Minnesota that Hensley is inapplicable to past
misdemeanor conduct. Id. at 883-84 (“While we can envision
situations where an automobile stop could advance the public
interest to a greater degree than the present stop, we do not
10260 UNITED STATES v. GRIGG
believe this will arise in a misdemeanor context with sufficient
frequency to appreciably advance the public interest in
solving past crimes.”); see also State v. Bennett, 520 So. 2d
635, 636 (Fla. Dist. Ct. App. 1988) (affirming trial court’s
holding that investigative stops involving past misdemeanors
are constitutionally impermissible).
State courts have also applied the Hensley test to completed
misdemeanors and reached the opposite conclusion that the
governmental interest in investigating and preventing lesser
crimes does not unduly infringe on personal security under
the Fourth Amendment. In State v. Myers, a Louisiana appellate
court considered the applicability of Hensley where the
Louisiana state police stopped the driver of a 1985 gray Lincoln
Continental believed to have struck a traffic sign across
the border in Arkansas according to a teletype issued by the
Arkansas authorities that gave a matching description of the
car later seen in Louisiana. 490 So. 2d 700, 701-03 (La. Ct.
App. 1986). Although the car was not driving unlawfully
when it reached Louisiana, id. at 701, the appeals court held
that the investigative stop was not unconstitutional in light of
the potential hazards related to the offense:
We have a scenario apparently involving a driver
who left the scene of an accident. Damage was
caused, perhaps intentionally, to government property.
At the very least, we are dealing with an
impaired or non-attentive driver who might have
been dangerous to other traffic. The safety of the
motoring public and the potential capacity of the
automobile to inflict serious damage provides a
fairly strong government interest.
Id. at 704 (distinguishing Blaisdell because of the differing
degrees of potential public harm and the close temporal proximity
of the “past” crime of reckless driving compared to the
two-month time lapse after the “no-pay” theft).
UNITED STATES v. GRIGG 10261
In City of Devils Lake v. Lawrence, 639 N.W.2d 466, 467,
473 (N.D. 2002), cited by the government here to support the
district court’s ruling, the North Dakota Supreme Court confronted
a situation where a police officer responded to a call
from police dispatch that “a fight was going to begin” at a bar
and upon arrival at the scene was told by a witness that the
defendant was the one involved in the “verbal altercation.”
Reversing the grant of the defendant’s motion to suppress, the
North Dakota high court reasoned that
[a] law enforcement officer could reasonably infer
and deduce from this dispatch, at the very least, the
possibility that someone at the bar had engaged in,
or was engaging in, ‘violent, tumultuous, or threatening
behavior’ with intent to harass, annoy, or alarm
another person within the meaning of [the state disorderly
conduct statute], to necessitate a call for
police assistance.
Id. at 473. Although the North Dakota Supreme Court did not
address Hensley explicitly, that court was alert to the potential
threat arising from a suspected past misdemeanor of disorderly
conduct, which favored permitting the investigatory stop
to quell the possibility of escalating violence.6
6See also State v. Burgess, 776 A.2d 1223, 1227-28 (Me. 2001)
(upholding stop without mention of Hensley to investigate complaint of
previous threat by drunken man to shoot holes in a vehicle if not moved);
Floyd v. City of Crystal Springs, 749 So. 2d 110, 117 (Miss. 1999) (holding,
without citation to Hensley, that stop of vehicle reported to have
driven recklessly was constitutional and rejecting “felony/misdemeanor
distinction . . . [that] would require officers to ignore communications of
other officials warning of drivers who may be impaired, ill, reckless, or
dangerous to the public”); State v. Blankenship, 757 S.W.2d 354, 357
(Tenn. Crim. App. 1988) (holding stop constitutional on report that suspect
was involved in hit-and-run accident). Although some of these cases
do not rely on Hensley, the common rationale to justify the investigative
stop of an already completed misdemeanor stems from the exigency of
preventing or mitigating public safety risks associated with the nature of
the offense.
10262 UNITED STATES v. GRIGG
[4] These state cases are instructive because they illuminate
the rule we derive from Hensley that a court reviewing the
reasonableness of an investigative stop must consider the
nature of the offense, with particular attention to any inherent
threat to public safety associated with the suspected past violation.
A practical concern that increases the law enforcement
interest under Hensley is that an investigating officer might
eliminate any ongoing risk that an offending party might
repeat the completed misdemeanor or that an officer might
stem the potential for escalating violence arising from such
conduct, both of which enhance public safety. Conversely, the
absence of a public safety risk reasonably inferred from an
innocuous past misdemeanor suggests the primacy of a suspect’s
Fourth Amendment interest in personal security.
[5] As a complement to these practical concerns, moreover,
the formal distinction between felonies and misdemeanors
generally followed under state law in prohibiting warrantless
arrests for misdemeanors committed outside the presence of
the officer also informs our inquiry.7 As noted by the court in
Blaisdell, this formal distinction amounts to “a legislative recognition
that the public concerns served by warrantless misdemeanor
arrests are in some degree outweighed by concerns
for personal security and liberty.” Blaisdell, 375 N.W.2d at
883; see also Duncan, 43 P.3d at 518-19 (“Accepting the presumption
that more serious crimes pose a greater risk of harm
to society, we place an inversely proportional burden in rela-
7In all states covered by our circuit, except Hawaii and Oregon, the
respective state legislatures have observed this distinction by promulgating
laws that prohibit an officer, though with some varying exceptions that are
inapplicable here, from arresting a person who commits a misdemeanor
outside of his or her presence. See Alaska Stat. § 12.25.030 (2006); Ariz.
Rev. Stat. Ann. § 13-3883 (2007); Cal. Penal Code § 836 (2007); Idaho
Code Ann. § 19-603 (2007); Mont. Code Ann. § 46-6-311 (2005) (allowing
for warrantless arrest not in the presence of an officer in the event of
circumstances involving violence); Nev. Rev. Stat. Ann. § 171.124 (2007)
(allowing for arrest for gross misdemeanor committed outside officer’s
presence); Wash. Rev. Code Ann. § 10.31.100 (2007).
UNITED STATES v. GRIGG 10263
tion to the level of the violation.”). In light of this distinction,
our evaluation of a Terry stop in the context of a completed
misdemeanor should tend to give primary weight to a suspect’s
interests in personal security, while considering the law
enforcement’s interest in the immediate detention of a suspect
is not paramount. Although federal constitutional law is controlling,
we note this formal distinction under state law
because “[s]tate law is often relevant in analyzing the reasonableness
of police activities under the fourth amendment.”
Reed v. Hoy, 909 F.2d 324, 325, 330 & n.5 (9th Cir. 1990)
(examining reasonableness in context of § 1983 and claim of
qualified immunity); see also Bingham v. City of Manhattan
Beach, 341 F.3d 939, 950 (9th Cir. 2003) (“In evaluating a
custodial arrest executed by state officials, federal courts must
determine the reasonableness of the arrest in reference to state
law governing the arrest.” (internal quotation marks and alteration
omitted)).8
8Consideration of the nature of the offense under Hensley is also consistent
with the Fourth Amendment reasonableness inquiry in the context of
a warrantless entry into a home of a person suspected of a non-jailable
traffic offense. See Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). In
Welsh, the arrest occurred after a witness observed a car swerve into an
open field and called the police. Id. at 742-43. When the witness told the
police that the car’s driver walked away from the accident, the police
checked the car’s registration, determined that Welsh lived nearby, and
presently gained entry to his house without a warrant and arrested him for
driving while intoxicated. Id. Rejecting the government’s exigency theories,
the Supreme Court invalidated the entry and arrest in light of the
minor nature of the offense. Id. at 747-48, 750 (“Our hesitation in finding
exigent circumstances . . . is particularly appropriate when the underlying
offense for which there is probable cause to arrest is relatively minor.”);
accord United States v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001) (en
banc) (recognizing that where the police are in hot pursuit of defendant
who has committed the misdemeanor of resisting arrest, the relatively
minor nature of the offense “weighs heavily against” the reasonableness
of a warrantless entry onto a suspect’s property based on exigent circumstances).
Doubtless, a Terry stop is less intrusive on personal security than
the home entry in Welsh; however, that distinction does not detract from
the Fourth Amendment command common to both settings that individual
privacy must be protected from unreasonable encroachment where the
defendant has committed a mere misdemeanor. See Johnson, 256 F.3d at
10264 UNITED STATES v. GRIGG
[6] Despite the misdemeanor-felony distinction, and the
fact that some courts have relied on this distinction to limit
Hensley, we decline to adopt a per se standard that police may
not conduct a Terry stop to investigate a person in connection
with a past completed misdemeanor simply because of the
formal classification of the offense. We think it depends on
the nature of the misdemeanor. Circumstances may arise
where the police have reasonable suspicion to believe that a
person is wanted in connection with a past misdemeanor that
the police may reasonably consider to be a threat to public
safety. See, e.g., Myers, 490 So. 2d at 704 (reckless driving),
Devils Lake, 639 N.W.2d at 467 (altercation with a potential
for violent escalation); Burgess, 776 A.2d at 1228 (drunken
person making threats that he would shoot vehicle if not
moved). We leave that case for another day.
[7] We adopt the rule that a reviewing court must consider
the nature of the misdemeanor offense in question, with particular
attention to the potential for ongoing or repeated danger
(e.g., drunken and/or reckless driving), and any risk of
escalation (e.g., disorderly conduct, assault, domestic violence).
An assessment of the “public safety” factor should be
considered within the totality of the circumstances, when balancing
the privacy interests at stake against the efficacy of a
Terry stop, along with the possibility that the police may have
alternative means to identify the suspect or achieve the investigative
purpose of the stop.
B
[8] We conclude that Officers Roeder’s and McGuire’s
investigatory stop of Grigg was not reasonable. As discussed
above, the exceedingly harmless past misdemeanor conduct
908 n.6. (“[I]n situations where the underlying offense is only a misdemeanor,
law enforcement must yield to the Fourth Amendment in all but
the ‘rarest’ cases.” (quoting Welsh, 466 U.S. at 753)).
UNITED STATES v. GRIGG 10265
— allegedly playing one’s car stereo at a volume in suspected
violation of a local noise ordinance — need not spur the
police into instant action as might the opportunity to stop a
reputedly armed felon, street fighter, or reckless driver. Cf.
Hensley, 469 U.S. at 223; Devils Lake, 639 N.W.2d at 467;
Myers, 490 So.2d at 704. So far as we can discern, if Officers
McGuire and Roeder had not stopped Grigg, the threat to public
safety from his loud music would have been nil. Given the
lack of exigency to seize Grigg temporarily, his interest in
personal security against governmental intrusion is entitled to
more deference.
Moreover, the countervailing strength of the governmental
interest in crime prevention must be gauged in light of the
alternative methods the Nampa police had to ascertain Grigg’s
identity. The district court made findings with respect to two
alternative means of identifying Grigg. First, the district court
determined that it would have been unreliable for Officer
McGuire to have dispatch check the complaint logs. In addition,
the district court found that the length of time required
to have dispatch check the logs would have permitted Grigg
to leave the area. This finding appears to us to be correct
because a check of the complaint logs would have been ineffective
where Harmel did not know Grigg’s identity and he
could thus not have provided it in a previous complaint.
[9] The district court’s second finding that Officers
McGuire and Roeder could not have retrieved reliable information
about the driver of the Cougar from the residence at
1800 East Dewey Street, however, is less tenable. The district
court found that this method was unreliable because the officers
could not have known whether anyone was home at the
residence; and if someone were home, whether the resident
would have provided the information sought because that person
would have been under no duty to do so. Although the
possibility of non-cooperation existed, it was too speculative
to support the district court’s finding, where there was at least
a reasonable probability that a resident would have given the
10266 UNITED STATES v. GRIGG
information upon police inquiry. We may not lightly assume
that members of the public will necessarily be uncooperative.
There was no reason here to assume that police questioning
of the neighbors about a noisy car would have met a stone
wall. The Nampa police took no steps to pursue these opportunities
to investigate the noise complaint, although they
might have been equally fruitful as directly pulling over
Grigg. That Grigg was leaving the area, on which the district
court relied to support its reasoning, has relatively minimal
force because of the innocuous nature of the offense and the
possibility that the driver could be identified by further investigation.
Moreover, the district court’s finding of unreliability
is not entirely supported by the record because Officer
McGuire testified that absent the opportunity to stop Grigg
directly, and in lieu of the ineffective method of checking the
complaint logs, “it would have been quicker for me to just go
down to the address where he came from and ask them for the
name of the individual that had just left. I would have probably
investigated it that way.” There was no testimony that
Officers McGuire and Roeder lacked confidence that contact
with the residents at 1800 East Dewey Street would have produced
Grigg’s identity. Finally, the district court’s speculation
that the residents might not have been home is not a powerful
ground for an immediate stop of the car because Grigg had
left the residence only moments before the stop, and even if
the residents were away temporarily, the police could have
returned to question them.
[10] That the police failed to run a routine license check on
the Cougar compounds the unreasonableness of the stop. On
this point, the district court made no finding, although Officer
Roeder was in a position, as he trailed Grigg before pulling
him over, to run a check on the license plate that would have
accessed solid information on the Cougar and the registered
owner.9 While it is possible that Grigg might have borrowed
9We have recently held that “when police officers see a license plate in
plain view, and then use that plate to access additional non-private information
about the car and its owner, they do not conduct a Fourth Amendment
search.” United States v. Diaz-Castaneda, No. 06-30047, 2007 WL
2044244 at *4 (9th Cir. July 18, 2007).
UNITED STATES v. GRIGG 10267
the car from the owner, a police officer’s license plate check
is a standard procedure for gathering information about a suspected
violation of the law that went untested here.
This case is nonetheless difficult because we recognize that
the police have a manifest interest in identifying the perpetrators
of crime, whether the offense be minor or major. Finding
the violator of even a humble noise ordinance has some value
to society and certainly would have rewarded the persistent
concern of the complaining neighbor Harmel. But giving satisfaction
to Mr. Harmel and locating the source of annoyingly
loud music are not all that guide us. There is a traditional and
constitutionally preserved interest in personal security from
governmental intrusion, which fuels the requirements that the
police obtain warrants before making an arrest and that police
have reasonable suspicion that criminal activity is afoot
before making a Terry stop. The matter, in our view, stands
on different footing with regard to a completed crime that is
a misdemeanor that does not endanger the public.
Directly pulling over the driver of the Cougar was indeed
the most efficient approach to investigating Harmel’s complaint.
But simple efficiency and expediency of law enforcement
efforts do not automatically override the other crucial
element of the Hensley balancing test — personal security
from governmental intrusion in the operation of one’s vehicle.
See Brignoni-Ponce, 422 U.S. at 878 (“[T]he reasonableness
of such seizures depends on a balance between the public
interest and the individual’s right to personal security free
from arbitrary interference by law officers.”); see also Prouse,
440 U.S. at 657 (noting vehicle stops “interfere with freedom
of movement, are inconvenient,[ ]consume time . . . [and]
may create substantial anxiety”). Moreover, the reasonableness
of an investigative stop is to a degree undermined,
where, as here, the police have not pursued alternate available
opportunities to gather information about the driver. That
Grigg was leaving the area might have warranted an immediate
Terry stop at the expense of alternative investigative meth-
10268 UNITED STATES v. GRIGG
ods in circumstances involving an offense that threatened
public safety, but the noise violation here created no such exigency.
To validate the investigative stop under these circumstances
would invite the erosion of the Fourth Amendment
rights of Grigg and others.
IV
[11] We hold that under the balancing test set forth in Hensley,
a court reviewing the reasonableness of a stop to investigate
a past misdemeanor (or other minor infraction) must
assess the potential risk to public safety associated with the
nature of the offense. Under the circumstances here, it was
unreasonable for the Nampa police to pull over Grigg on suspicion
of having played his music too loudly where they did
not duly consider the lack of any threat to public safety, especially
given the untested alternative means of ascertaining
Grigg’s identity. The motion to suppress was erroneously
denied.10 We reverse Grigg’s conviction and remand to the
district court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
10Because we vacate the conviction and remand on this ground, we do
not reach Grigg’s claims of prosecutorial misconduct.
UNITED STATES v. GRIGG 10269

http://www.SanDiegoDrunkDrivingAttorney.net

Lindsay Lohan felony charges to be dropped?

California DUI defense lawyer news

Felony charges against Lindsay Lohan may be dropped in connection with two of her California DUI arrests.

The District Attorney (DA) will “almost certainly will not file cocaine charges in connection with her DUI bust Memorial Day weekend in Beverly Hills.”

As for her last arrest on July 24th, the source said that the DA could file felony cocaine possession and charge her with bringing cocaine into a correctional facility, but that will not be likely either. The reports states that the “D.A. is inclined not to file those felony charges either.”

California DUI police step up efforts, DUI checkpoints

San Diego California DUI Defense Attorney news

California DUI enforcement to be awarded in San Diego on September 14, 2007.

14 people were arrested for California drunk driving and 96 citations were issued in a California DUI sobriety checkpoint that screened 1,238 vehicles Saturday night on Mariposa Road in Victorville, California.

The Avoid the 25 DUI Task Force is focusing on drunken driving through Labor Day, and 17 more DUI checkpoints and 55 saturations are planned.

Also, the California Highway Patrol announced Monday it is redoubling its traffic safety efforts during the upcoming Labor Day holiday weekend in hopes of ending the summer on a more positive note.

The announcement comes in the wake of a particularly tragic Fourth of July holiday, when 18 people died on California roadways in a 24-hour period.

The California DUI checkpoint was conducted by the task force, which includes all 25 law enforcement agencies in San Bernardino County.

One of the main goals of the checkpoint was to make drivers think about drinking and driving, and the hope was that if drivers saw the California DUI checkpoint, they would be less likely to drink and drive.

One driver who went through the California DUI checkpoint told deputies that she was returning from a club and that she did not drink because she drove by the California DUI checkpoint on the way to the club.

Thirty people who passed through the California DUI checkpoint did not have licenses or had suspended licenses, and 28 vehicles were impounded for 30 days.

One woman, whose license was suspended for previous drunk driving, tried turning around to avoid the checkpoint. Deputies pulled her over, impounded her car for 30 days, and she will spend a minimum of 10 days in jail, Mattke said.

Analyst Tom Firey of the Cato Institute said police checkpoints are legal because no one is singled out. “Because you are searching everyone coming down a strip of road, it’s not an improper search,” he said.

Last year, 46 people were killed in traffic collisions during the Labor Day weekend, according to the CHP, eight of them died in crashes within the CHP's Inland Division.

In addition to lives lost, 1,749 people were arrested statewide for driving under the influence. Officers in Inland Division arrested 152 people for DUI.

To re-enforce the importance of following the rules of the road and saving lives on the state's roadways, CHP Commissioner Mike Brown will patrol along Interstate 5 from Woodland to San Diego during the maximum enforcement period.


As summer draws to a close, sheriff's deputies, police officers and California Highway Patrol officers in Monterey County will crack down on those who celebrate with alcohol and then drive.

Avoid the 18, named after the number of law enforcement agencies in the county, plans in-city California DUI patrols and CHP freeway saturation for the Labor Day weekend. The four-day campaign starts Friday, Aug. 31 and ends at midnight Monday, Sept. 3.

Police in Soledad plan a Sunday, Sept. 2, checkpoint from 8 p.m. to midnight, said Lt Jaime Fernandez.

“We hope to catch people coming back from San Antonio Lake," Fernandez said. "It's a busy weekend for camping, and we want to take DUI suspects off the road before they get onto the freeway.”

The event is set for Front Street and Dixie Street.

King City and Monterey CHP squads will assign nearly all their available officers to the road for the weekend, said CHP Officer Larry Starkey, while Sgt. Andy Miller reports that Salinas police will send out officers on California DUI overtime pay.

California DUI officers will travel to San Diego on Sept. 14 to accept an award from the California Law Enforcement Challenge competition. Avoid the 18 tied for third place in the multi-jurisdictional category with Avoid the 14 in San Francisco.

The award-winning campaign has three secret weapons:

1) Officer Jesus Yanez of the King City police. He will be on duty all weekend, said Capt. Bruce Miller. Yanez, a regular patrol officer who responds to other calls, has made 90 California DUI arrests so far this year, often pulling in two or three suspects a night.

2) Cellular telephones. “The public can help us in finding DUI suspects by phoning 911 when they see a driver who's all over the road, stopping for no reason, signaling left but turning right, driving more than 10 miles below the speed limit or tailgating,” requested Sgt. Andy Miller of the Salinas Police Dept., campaign coordinator for the sponsoring Monterey County Chief Law Enforcement Officer's Association.

3) Designated drivers. “When you go out, you always plan where you're going, what you're going to wear and who you're going with, so also plan on how to get home safely by designating a friend to remain perfectly sober and drive everyone else home,” advised Lt. Earl Lawson of the Cal State University Monterey Bay Police Dept.

Police arrested 69 California DUI suspects during last year's Labor Day Weekend crackdown, a 13 percent rise over the previous year. No California DUI deaths were reported in either year.

New provisional statistics from the CHP show that the county dropped by 27 percent in California DUI injuries and by 25 percent in California DUI deaths in the five years between 2002 and 2006.

Avoid the 18 is part of a nationwide summer California DUI prevention effort sponsored by the National Highway Traffic Safety Administration that focuses on combining high-visibility enforcement with heightened public awareness. The California Office of Traffic Safety funds the Monterey County enforcement blitz through NHTSA. There are now 34 similar countywide crackdowns in the state.

California DUI officers hit the roads again. California DUI defense lawyers prepare.

Feds ask California to toughen DUI penalties

California drunk driving defense lawyer news

Federal traffic safety officials kicked off their annual push against drunk drivers on Monday, calling on states to toughen penalities and warning DUI offenders that one offense could cost them $10,000 on average in fines, court costs and lost wages.

The event, which the National Highway Traffic Safety Administration will bolster with $11 million in national advertising, comes as deaths from drunk drivers held steady in 2006, as they have for the past decade.

The agency and groups such as Mothers Against Drunk Driving have been pushing states for tougher laws, including requiring all convicted DUI / drunk drivers to have alcohol testing devices installed in their vehicles that prevent them from starting if an operator is drunk.

California has a strong California DUI ignition interlock law in effect.

California DUI Checkpoints over weekend waste of taxpayer money

California Drunk Driving Defense Attorney news

Santa Clarita Valley California Sheriff’s Station conducted a California D.U.I sobriety checkpoint from 7pm Friday through 3am Saturday morning. The checkpoint was conducted on eastbound Soledad Canyon Rd, east of Golden Oak.

There were a total of 1,044 vehicles that passed through the checkpoint. All of those vehicles were screened. Four vehicles were pulled off line where the drivers received further testing.

Only 1 of those drivers was arrested for California DUI (at the California drunk driving checkpoint).

In addition, eleven drivers were cited for driving without valid drivers licenses. Their vehicles were impounded.

A sobriety/driver's license checkpoint was also in operation from 8 last night to 1 a.m. Sunday on the Skyway near the "Coffee's On" cafŽ, south of Elliott Road.
The location was announced about 2:15 p.m. today by Paradise police, as required by state law.

Officers are trained in detection of alcohol impairment, and will be equipped with hand-held breath testing devices that provide an accurate measure of blood alcohol levels.

McLaughlin said drivers suspected of being California DUI or drugs can expect to be arrested.

Lastly, Central California Coast Officers are stepping up patrols, on the lookout for drunk drivers weeks before the Labor Day holiday.

A maximum enforcement effort will put more patrols on the roads beginning today. Different branches of law enforcement will combine efforts through more patrols and California DUI checkpoints.

Here's the self-promoting hype: "FBI statistics prove that if people are aware that officers are out there specifically for DUI drivers using checkpoints, they won't drink and drive that night. They'll designate a driver." Officials urge you to call 911 if you suspect someone is California DUI.

The California DUI checkpoint augments regular patrols and is another costly overtime program funded by a grant from the California Office of Traffic Safety.

California DUI defense lawyers believe these California DUI checkpoints are wasting California taxpayer money.

MADD Victim Impact Panel info

DUI / Drunk Driving Victim Impact Panel info

California DUI courts often order persons convicted of a California drunk driving charge to attend a MADD Victim Impact Panel. California DUI defense attorneys can provide this info to their clients:

1. Victim Impact Panels
... 160; MADD CONNECTICUT VICTIM IMPACT PANEL Mothers Against Drunk Driving (MADD) Connecticut State Organization offers Victim Impact Panels (VIP) as required by PA 01-2001 (An Act Concerning Victim Impact Panels) effective October 1, 2001. ... Victim Impact Panel and send your request to robin.cullen@madd.org . Also, if you are a driving instructor or an educator and would like to attend with a group of students please call or e-mail for more information. MADD VICTIM IMPACT ...

2. Victim Impact Panel
Victim Impact Panel ** Please scroll down to find the information on your desired county ** V.I.P. Calendar - Maricopa County Telephone Registration Instructions: You must call 602-240-6500, press 2 (English) or 7 ... details on how to complete your money order) Alcohol consumption on the day of the panel is not permitted. A breathalyzer test must be passed to enter the panel. Late arrivals will be turned away and you will have to reschedule. At the ...

3. Victim Impact Panel Schedule
Victim Impact Panel Schedule MADD NEW MEXICO VICTIM IMPACT PANELS CONTACT INFORMATION ALBUQUERQUE VICTIM IMPACT PANEL: Dates: November 30, 2006 January 4, 2007 January 25, 2007 February 22, 2007 ... November 29, 2007 No Panel in December Time: Registration for the first panel begins at 5:30 p.m. and the panel begins at 6:00 p.m. Registration for the second panel begins at 7:15 p.m. and the panel begins at 7:30 p.m. Location: UNM ...

4. Creating a Victim Impact Booklet
... to illustrate the problem. Out of that experience, a victim impact booklet, Drunk Driving: Its Impact, Its Victims, was born. I believe that a collection of first-hand experiences from victims in my community can serve as a useful aid to convincing ... the crash, family members, friends, emergency responders and the community. The victim impact booklet was not created to take the place of a Victim Impact Panel (VIP). It is meant to be a portable testimony to an ongoing problem. Whether the booklet ...

5. Victim Impact Panels
Victim Impact Panels MADD utilizes Victim Impact Panels to put a 'face' on the victims of drunk driving. These individuals are not just labeled 'victims', but are individuals whose lives have been tragically altered as a result of ... are ordered by the courts to attend a Victim Impact Panel. *There is a $25 participation fee to attend. Please bring a Money Order made out to MADD SC. * 2007 Victim Impact Panel Schedule REGION LOCATION TIME DATE Blue ...

6. Prosecutors as Partners
... to victims' rights throughout the state of Idaho for many years. Through Bower's leadership, victim/witness coordinators have become a vital part of the prosecutorial process. By ensuring that the constitutional rights of victims are upheld, Bower's ... pioneering work in Idaho for victim advocacy continues to guide others toward a more humane philosophy of promoting and protecting victims' rights. Bower encourages individuals to participate fully within the trial process when possible. As his ...

7. Victim Impact Panels
Victim Impact Panels North Carolina Victim Impact Panels The following Victim Impact Panels are held in the state of North Carolina: 2007 Calendar Year Victim Impact Panels (VIP classes): give victims & survivors of ... VIP: Please call 1st Step Services, LLC at 919-329-9400 for more information and to pre-register. Victim Impact Panels are typically held in Wake County at least once a month. A fee of $50 applies. Durham County VIP: Last Monday ...

8. VIP Schedules
VIP Schedules MADD NEW MEXICO VICTIM IMPACT PANELS CONTACT INFORMATION ALBUQUERQUE VICTIM IMPACT PANEL: Dates: November 30, 2006 January 4, 2007 January 25, 2007 February 22, 2007 March 29 ... November 29, 2007 No Panel in December Time: Registration for the first panel begins at 5:30 p.m. and the panel begins at 6:00 p.m. Registration for the second panel begins at 7:15 p.m. and the panel begins at 7:30 p.m. Location: UNM ...

9. Volunteers Honored for Excellence in Achieving Mission
... vigil for the nation's Native American DUI victims, and last year, with the help of Tohono O'odahma law enforcement officers and Native American DUI victims, MADD's victim impact panels became the first state-recognized alcohol education program for ... a victim impact panel, aid local law enforcement DWI programs, and provide additional training and education for members. MADD TEXAS: HEART OF MADD AWARD FOR VICTIM ASSISTANCETo help serve drunk driving crash victims in 254 ...

10. Local Volunteer Opportunities
... Become a trained victim advocate and provide emotional support to victims of drunk driving crashes. Guide victims through the criminal justice system. HELP A VICTIM BE HEARD Coordinate a victim impact panel by assigning victim speakers and ... agencies and read local newspapers to find out about drunk driving crashes, then send out "We Care" cards to the victims of these tragic events. UTILIZE OFFICE SKILLS Answer phones, file, copy, type or perform other office support duties. TAKE THE ...

http://www.madd.com

California DUI / drunk driving checkpoint tonight

California DUI Lawyer news flash

Remember your right to legally avoid a California DUI checkpoint tonight.

On August 17, 2007, at an undisclosed location in Santa Clarita, the Los Angeles County Sheriff’s Department will be conducting a California DUI checkpoint.

The California drunk driving checkpoint will be in operation from 7:00pm tonight to 3:00am Saturday morning.

In addition to checking for drivers who have been drinking alcohol, the deputies will also be looking for those who are driving without a valid driver’s license.

For questions, contact a California DUI / California drunk driving attorney.

California DUI - conviction reversed by Court of Appeals

California DUI - conviction reversed

8/15/07

People v. Reynaga

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

SAMMY SALVADOR REYNAGA,

Defendant and Appellant.
H029542
(Santa Cruz County

Super. Ct. No. F09677)


On July 7, 2005, the Santa Cruz County District Attorney filed an amended information in case No. F09677 charging appellant with various offenses occurring on different dates. Counts one through seven were alleged to have occurred on January 15, 2005. Count one charged battery with injury on a police officer (Pen. Code, § 243, subd. (a)(2)); count two, resisting a police officer with serious bodily injury (Pen. Code, § 148.10); count three, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count four, resisting a police officer (Pen. Code, § 148, subd. (a)(1)); count five, driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)); count six, driving with a blood alcohol level of .08 (Veh. Code, § 23152, subd. (b)); and count seven, driving with a suspended license (Veh. Code, § 14601.2 subd. (a)). As to counts one through three, the information alleged that at the time of the commission of the offenses appellant was released from custody within the meaning of Penal Code section 12022.1.

Counts eight through 11 were alleged to have occurred on June 17, 2004. Count eight charged possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count nine, possession of an ingestion device (Health & Saf. Code, § 11364); count 10, giving false information to a police officer (Pen. Code, § 148.9, subd. (a)); and count 11, driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).

Count 12 charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)), alleged to have occurred on April 14, 2004. Count 13 charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)) alleged to have occurred on June 1, 2003.

The information alleged that appellant had one prior strike conviction within the meaning of Penal Code section 667, subdivisions (b)-(i) and had served two prior prison terms within the meaning of Penal Code section 667.5, subdivision (b).

On July 20, 2005, a jury found appellant guilty on all counts except count three and found true the on-bail enhancements as to counts one and two.

After waiving a jury trial, appellant's prior conviction was tried to the court. The court found the prior conviction allegation to be true.

On October 24, 2005, the court sentenced appellant to an aggregate term of eight years consisting of the mid-term of three years on count two doubled because of the prior strike (Pen. Code, § 667 subds. (b)-(i)), plus two years for the on-bail enhancement (Pen. Code, § 12022.1). On count one, the court imposed the mid-term of two years plus two years for the on-bail enhancement to run concurrently with the sentenced imposed on count one. In addition, the court imposed the mid-term of two years on count eight to run concurrently. Further, the court imposed and stayed two one-year terms for the prison priors. In addition, the court sentenced appellant to 30 days in the county jail for counts four through seven and nine through 13 to be served concurrently with the prison term. The court awarded appellant 355 days actual credit and 118 days of Penal Code section 4019, subdivision (b) credits for a total of 473 days of credit for time served.

Appellant filed a timely notice of appeal.

On appeal, appellant raises nine issues. First, he contends that the judgment of conviction must be reversed because the jury inadvertently learned prior to deliberations that he "took or attempted to take a deal." Second, his conviction on count two must be reversed because the evidence is insufficient to support a finding that he was the proximate cause of Officer Hughes's injuries. Third, his convictions on counts one and two must be reversed because the evidence is insufficient to show the statutory element of a lawful arrest. Fourth, he may not be convicted of a violation of Penal Code section 243, subdivision (c) because Officer Hughes's testicular injury did not require medical treatment. Fifth, his conviction on count four, misdemeanor resisting arrest must be reversed because the jury may have found him guilty based on the facts charged in count two. Sixth, his conviction on count four must be reversed because the jury was not given a unanimity instruction. Seventh, the true finding as to one of the on-bail enhancements (Pen. Code, §12022.1) must be reversed because the evidence was insufficient to support a finding that he was convicted of a primary felony. Eighth, the true findings on both on-bail enhancements must be reversed because the trial court failed to give the jury any instructions on the elements of the enhancements. Ninth, the on-bail enhancements must be reversed because the prosecutor committed misconduct during closing argument by presenting facts to the jury that were extraneous to the evidence presented at trial. We find merit in appellant's first contention and reverse the judgment.

Facts and Proceedings Below
Prosecution's Case

Count 13 - June 1, 2003, Driving On a Suspended License

(Veh. Code, § 14601.2, Subd. (a))

At approximately 7:30 p.m. on June 1, 2003, Capitola Police Officer Andrew Dally observed a gold-colored Ford Explorer driving on Rosedale Avenue. Officer Dally knew appellant and recognized him as the driver of the Explorer. Mary Reynaga was in the front passenger's seat. Appellant turned left and passed Officer Dally's car. Officer Dally radioed his dispatcher, asking the dispatcher to check the status of appellant's driver's license. He learned it was suspended. Officer Dally located appellant's vehicle approximately 10 minutes later parked at Mary Reynaga's home. Appellant was not there. Officer Dally submitted a report to the district attorney's office.

Count 12 - April 14, 2004, Driving On A Suspended License

(Veh. Code, § 14601.2, Subd. (a).)

At approximately 1:00 p.m. on April 14, 2004, Santa Cruz Police Detective Brent Northrup was in plain clothes driving an unmarked police car. He observed that a white Volvo failed to stop at an intersection. The Volvo pulled in front of him, causing him to brake to avoid a collision. He sounded his horn. Detective Northrup "pulled the [vehicle's emergency] light down, so it was visible to the people in front of [him] [and] activated the light . . . ." The Volvo did not stop. Detective Northrup "activated the siren just briefly" "and [the Volvo] pull[ed] over." Appellant was the driver and Genevra Migliore was the passenger. Detective Northrup walked to the car and spoke with appellant. He cited appellant for driving on a suspended license.

Counsel stipulated that appellant's license was suspended from 2003 through the present time and that appellant had knowledge of the suspension.

Counts 8-11, Multiple Offenses, June 17, 2004
At approximately 6:56 p.m., on June 17, 2004, Santa Cruz Police Officer Holly Hoy was driving on Ocean Street. She pulled her police cruiser in behind a 1980 blue Buick that had a non-operational brake light and an expired registration tag. After she activated her emergency equipment (lights and siren), the Buick stopped. Officer Hoy approached the driver's side of the car and asked the driver for identification. The driver, who later identified himself as appellant, gave his name as Jesse Reynaga. He said he was going to the hospital because his passenger was pregnant and having problems. Officer Hoy offered to call an ambulance, but neither appellant nor the passenger said one was necessary. Appellant provided no written identification. He gave his date of birth as October 29, 1974. Officer Hoy noticed appellant bend over and reach down by his seat with his right hand. The passenger was moving around also. Officer Hoy told appellant and the passenger to keep their hands where she could see them. Officer Hoy noticed that the passenger had a metal object beneath her left leg. The passenger said that it was a knife, which she handed to Officer Hoy. Officer Hoy placed it on top of the car.

After Officer Hoy called for other officers to help, Officers Romel Cuellar and Karina Cecena arrived. Officer Cuellar watched the passenger while Officer Cecena talked with appellant. Eventually, appellant admitted that he was Sammy Reynaga. When Officer Hoy learned that appellant had outstanding warrants, she handcuffed and searched him. The passenger was removed from the car, but not searched. Officer Hoy did not see appellant hide anything. Officer Hoy seized two pipes from appellant. One of the pipes was used to smoke marijuana, the other methamphetamine.

When the officers searched the car, Officer Cuellar located a bubble-wrap package between the seat and the middle armrest. The package contained methamphetamine.1 Officers Hoy and Cuellar did not know who placed the methamphetamine in the car. The police determined that Curtis Welch was the registered owner of the car.

Crime scene investigator Frank Deniz examined the bindles for fingerprints but did not find prints that had sufficient evidentiary value.

Counts 1-7, Multiple Offenses, January 15, 2005
On Saturday, January 15, 2005 around 7:50 p.m., University of California, Santa Cruz Police Officer Brian Hughes was in the area of King and Bay streets. This area is a residential neighborhood with a speed limit of 25 miles per hour. A stoplight controls the flow of traffic. Officer Hughes was in uniform and in a marked police car. Officer Hughes heard a car approach from behind him. He saw a white Honda, going approximately 40 miles per hour. When the stoplight turned green, the Honda cut between Officer Hughes's patrol car, missing it by less than a foot, and a green Cadillac. The Honda pulled into the right-turn lane, but proceeded straight across the intersection. This caused the Cadillac's driver to slam on his brakes to avoid a collision.

Officer Hughes activated his vehicle's overhead red and blue emergency lights. He pursued the Honda as it went down King Street at speeds between 40 and 45 miles per hour. The posted speed limit was 25 miles per hour. The Honda failed to stop at a stop sign. Then, the Honda slowed, but did not stop at another stop sign. Eventually, the Honda turned right onto Miramar Drive. Officer Hughes followed and saw the Honda stopped in the middle of the road. He had lost sight of it for one to two seconds. Officer Hughes stopped approximately 10 feet behind the Honda. The emergency lights on his patrol car remained on.

Officer Hughes saw a driver, a passenger in the front passenger seat, and a dog in the back seat of the Honda. The driver, who Officer Hughes subsequently identified as appellant, started to get out the driver's side of the Honda. Officer Hughes yelled, "Police. Stop. Hold it right there." Appellant still had his right foot on the brake. He looked at Officer Hughes, and took his foot off the brake, allowing the car to roll backwards and hit Officer Hughes's car.

Appellant ran. He staggered and stumbled. At one point, he had to put both his hands down in order to regain his balance. Officer Hughes notified the police dispatcher of his location and that he was in foot pursuit. Officer Hughes yelled, "Police. Stop. Get on the ground." Appellant continued to flee.

Appellant stopped in the driveway of a house approximately six feet in front of Officer Hughes. Officer Hughes told appellant, "Get on the ground. Put your hands behind your back." Appellant did not comply. Appellant put his hands up, holding his fists in a threatening manner, and according to Officer Hughes, yelled in a demanding, desperate tone, "What did I do?" Officer Hughes told appellant, "Get down on the ground. Put your hands behind your back." Appellant did not comply. Remaining in the same threatening posture, appellant yelled, "What did I do?" Appellant took a step towards Officer Hughes. Officer Hughes thought appellant intended to attack him. As a result, Officer Hughes "pretty much put [his] left hand up, caught [appellant's] left hand and held it as [he] reached around with [his] right hand . . . to come around [appellant's] back to put him a bear hug . . . ."

Officer Hughes got appellant to the ground. He was on appellant's back with his hands around appellant. Appellant was on his hands and knees. Officer Hughes wanted to "find out what [was] going on with [appellant]. He was out of control." At this point, Officer Hughes was unable to get appellant's hand behind his back. Appellant "fought . . . the whole time."

Officer Hughes hit appellant above his right elbow with a flashlight. Officer Hughes struck appellant "to get compliance." He was trying to get appellant to listen, so that he could handcuff appellant. Officer Hughes explained that his use of his hands was not working because appellant "was resisting and fighting."

Officer Hughes explained, "I had to step up my use of force." The one blow with the flashlight had "no effect on [appellant] whatsoever." While appellant was struggling, appellant said, "I wasn't driving. I was in the passenger seat. I switched places with the driver." Officer Hughes told the jury that appellant did not have time to switch places.

Appellant continued to resist, knocking the flashlight from Officer Hughes's hand. Appellant "was still on the ground on his hands and knees and [Officer Hughes] was on top of him on his back still trying to grab his arms and legs." As appellant continued to resist, Officer Hughes yelled at appellant from "probably less than a foot from [appellant's] ear" that he was going to use pepper spray if appellant kept resisting. Officer Hughes pulled out his pepper spray, grabbed appellant's "hair on the back of [appellant's] head with [his] left hand and . . . pepper sprayed [appellant]," from approximately one to one and one-half feet away.

Appellant, who was still on his hands and knees, "grabbed the pepper spray with both hands, rolled over onto his back." Appellant said, "You pussy. You need a crutch to fight." Officer Hughes and appellant struggled over the pepper spray canister. During the struggle, Officer Hughes's radio microphone, which had been attached to his shirt, was pulled off. Officer Hughes heard his dispatcher ask for his location because "she didn't know where [he] was and no one was coming." Officer Hughes told his dispatcher where he was and to send help "Code 3 . . . , which means send as much [as] you can, lights and siren." As the struggle continued, appellant hit Officer Hughes, which caused Officer Hughes to punch appellant in the mouth. Appellant let go of the pepper spray can.

Officer Hughes explained that appellant "started reaching up on [his] duty belt, [his] gun belt. [Appellant] started reaching up and grabbing everything on [his] gun belt, every compartment." Officer Hughes was concerned that appellant might grab his gun and tried to prevent appellant from so doing.

Officer Hughes explained, "[Appellant] eventually grabbed the pepper spray [can] with one hand and then his other arm -- as he is laying [sic] on his back and I'm straddled pretty much kneeling over him he reaches down between my legs and punches me twice in the testicles." The blow was "very painful." Then, appellant "grabbed a hold of [Officer Hughes's] testicles, squeezed them, twisted them and drove them, just pushing them and driving them up into [Officer Hughes]." This caused "a wave of pain so bad [Officer Hughes] thought [he] could possibly black out." Eventually, appellant let go of Officer Hughes's testicles, "scooted out" from under Officer Hughes, and ran in the direction of the cars.

After appellant broke free, Officer Hughes did not see where appellant went other than in the general direction of their cars. Officer Hughes ran in that direction. He lost sight of appellant. He saw Santa Cruz Police Officer Teaford. Then, Officer Hughes saw appellant come out from a hedge. Appellant looked at Officer Teaford and stopped. Officer Teaford told appellant to "get down. To stop." Then, he began to run again. Officer Hughes approached appellant from the rear, again placing him in bear hug. Officer Hughes explained, "I picked him up and just threw him to the side towards the ground." As Officer Hughes did so, his left knee twisted and he felt a "pop." Appellant fell to ground, but continued to resist. Officer Hughes explained, "Well, once [appellant] was on the ground[,] I put my left arm around his neck and held his neck and shoulders down while Officer Teaford got a hold of one of his hands, got it handcuffed and [appellant] was keeping his other hand underneath him and wouldn't give it up."

Eventually, Officers Hughes and Teaford were able to place appellant in handcuffs. Appellant said, "I wasn't driving. The driver ran off." Officer Hughes smelled alcohol on appellant's breath and noted that his speech was slurred. Based upon appellant's driving, his staggering, the smell of alcohol, and slurred speech, Officer Hughes concluded appellant had been driving while under the influence of alcohol.

Appellant was approximately five feet, eight inches tall and weighed slightly more than 180 pounds. Officer Hughes was five feet 10 inches tall and weighted between 165 and 170 pounds. As soon as the officers handcuffed appellant, Officer Hughes told Officer Teaford that he had to get up and walk because he had hurt his knee. As he did so, he noted that it was swollen and "very sore."

Later that evening, Officer Hughes had another officer drive him to the hospital. Officer Hughes was given "Vicodin, crutches and a soft leg sprint that pretty much [ran] from [his] thigh to [his] ankle and [was told that his knee] was so swollen and sore they couldn't really diagnos[e] it other than a knee sprain." He sustained abrasions on his arms, knees, and hands. Officer Hughes mentioned the injury to his testicles, which remained sore and swollen for "at least a week."

Several days later Officer Hughes saw another doctor who prescribed physical therapy for the knee injury. He did as directed, but two weeks later his knee was still swollen. Officer Hughes consulted an orthopedic surgeon, who performed surgery on his knee, on April 29, 2005. He suffered a torn anterior cruciate ligament and lateral meniscus tear. The surgeon explained that recovery time is somewhat lengthy and the injury subjected Officer Hughes to an increased risk of arthritis. The surgeon explained that throwing someone to the ground could be enough force to damage an earlier repair.2

Officer Cecena and Sergeant Tony Parker searched the Honda. Sergeant Parker found a partially empty can of Coke between the center console and the driver's seat. Using tweezers, Officer Cecena pulled a plastic bag containing a partially saturated white substance from the can. Sergeant Parker and Officer Cecena did not know how long the bag was in the can, or who put it there. The police found a prescription bottle on appellant, which contained marijuana. Genevra Migliore was determined to be the registered owner of the Honda.

While at the hospital with Officer Hughes, Officer Robinson saw appellant on a gurney. Appellant smelled of alcohol. Accordingly, Officer Robinson ordered a blood test. Appellant became agitated and initially refused to submit to the blood draw. Eventually, Officer Robinson obtained some of appellant's blood at 11:44 p.m.

Criminalist Scott Armstrong testified as an expert on forensic alcohol testing and the effects of alcohol and its relationship to the ability to drive. He determined appellant's blood alcohol was .09 at the point the sample was taken. He estimated appellant's blood alcohol level would have been .17 four hours earlier when appellant was driving. He testified that a person with a blood alcohol level of .08 exhibits impaired judgment, delayed decision-making, decreased visual acuity, decreased reaction time and decreased ability to multitask while driving. In addition, he explained that persons under the influence might have red or watery eyes, stagger when walking, respond to questions more slowly, their driving patterns could include speeding and a failure to follow marked signs and turn lanes.

Defense Case

Dr. Terry Labid saw appellant at the hospital on January 13, 2005. Appellant had a broken rib. Dr. Labid prescribed Vicodin and told appellant not to take Vicodin with alcohol and not to drive.

Jesse Reynaga, appellant's brother, saw appellant on January 16, 2005. Appellant had scratches on his elbows and arms and nail marks on his back. On January 15, 2005, appellant's brother had not seen any injuries.

Kenneth Barnes, a former police officer, and professor of Administration of Justice at Arizona Western College, testified for the defense. He testified as an expert in police practices, jail practices, police pursuits and the use of force.

Barnes examined the policies on the use of force of the University of California at Santa Cruz. He explained that the university's policy uses a continuum of force that depends on the amount of resistance that the suspect exhibits.

Barnes opined that Officer Hughes had the right to chase appellant. However, in his opinion, Officer Hughes became aggressive when he cornered appellant. According to Barnes, Officer Hughes failed to tell appellant why he was being arrested, failed to attempt to calm appellant down, and failed to take out or display his nightstick before he tackled appellant. Once Officer Hughes grabbed appellant, the only tool Officer Hughes had left was to fight. Barnes believed that Officer Hughes should have grabbed appellant's hand and twisted it rather than using a bear hug. In Barnes's estimation, Officer Hughes used excessive force when he tackled appellant.

Barnes conceded that appellant did not stop when Officer Hughes activated his lights, and that appellant ran and failed to comply when Officer Hughes told him to get down. However, Barnes told the jury that Officer Hughes should not have tackled appellant and Officer Hughes was the aggressor.

Rebuttal

Santa Cruz Deputy Sheriff Frank Eryavec testified as an expert in compliance techniques. He explained to the jury that use of force involves a continuum. When a person is cooperative, the officer uses his professional presence and verbalization to restrain and detain. When a subject goes limp or fails to comply with instructions, an officer may lift the subject or use a pain compliance technique. When there is active resistance or "assaultive" behavior, an officer may employ force, short of deadly force, including pepper spray, striking implements or carotid compression holds. When a person threatens the life of the officer or another, an officer may employ deadly force. Deputy Sheriff Eryavec explained that the amount of force used might be influenced by whether the officer is alone and whether help is coming. In this case, appellant's driving behavior was aggressive, and appellant left the car and allowed it to roll into the officer's car. Once appellant ran into an alley and became aggressive, Officer Hughes no longer was obligated to answer appellant's questions because Officer Hughes was in hot pursuit. Under these circumstances, Officer Hughes could have used pepper spray and his baton. Deputy Sheriff Eryavec explained that it was reasonable for Officer Hughes to tackle appellant, use his flashlight, and punch appellant in the mouth. In Deputy Sheriff Eryavec's opinion, once appellant grabbed Officer Hughes's testicles and reached for his duty belt. Officer Hughes would have been justified in using deadly force.

Discussion
I. Motion for Mistrial
Background

On July 29, 2003, the court conducted jury selection. Although the voir dire was reported, initially, it was not transcribed. After the court excused the jury for the day, defense counsel made a motion for a mistrial. Specifically, defense counsel explained the basis for the mistrial as follows: "[DEFENSE COUNSEL]: Yes. Thank you. Yes, Your Honor. As the Court where he dealt with side bar, Ms. - - indicated or presented before the jury that there were discussions by Ms. Migliore who was described as [appellant's] girlfriend out in the hallway with the nursing infant. And I think we all know what Ms. Migliore said regarding about the daddy taking a deal. And Ms. [juror name redacted] then blurted this out before the entire jury panel. And then it was basically hushed over, and then we had a side bar discussion. At side bar I indicated that I thought it needed to be addressed. Court indicated he would need to addressed [sic] it later. At this point I would ask the Court to mistry the case because I believe that would impact jurors in their determination as to whether Mr. Reynaga was in fact worthy of his presumption of innocence and issues regarding his culpability for any of his offenses."

The prosecutor characterized the incident as a "minor inadvertent slip." The prosecutor noted that the statement "wasn't really taken into context with what meaning that statement would have had to the other jurors. Certainly, she didn't say that in a voice as loud as myself or [defense counsel]. I doubt if even the bulk of the jurors heard it. Certainly there wasn't any type of a reaction that I saw from any of the jurors sitting around her or anywhere else in the courtroom when she made the particular statement."

The court indicated that it was "disturbed" by the incident. However, the court went on to note the following: "I had difficulty at first understanding what she said because it appeared to have come out just as -- it was nonresponsive to what she was talking about. It was almost something she was waiting to blurt out as opposed to it came out at the end of an answer to a question. It was totally nonresponsive to the question. I had difficulty with -- it had something to do with substance abuse I think I was asking her about, and this came out."

The court explained to defense counsel and the defendant that although it was "unfortunate that somebody [said] that, that cuts both ways. It also can suggest to someone who is paying attention that the People have a position of compromise in the case, that a deal has been offered, so that it cuts both ways. And I don't think in the particular context when this came out, and part of it was the demeanor, she was very soft spoken, that I just don't think it had the effect that it might have had in another context, just the words she uttered. I just don't think it's a sufficient basis for the Court to grant the motion, and I'm going to deny the motion."

Defense counsel indicted that she wanted to make a record. Defense counsel noted that at the time prospective juror No. 18 made the statement, she "notice[d] several jurors actually raise their eyebrows, kind of stiffen, and/or take a look at her direction and/or [the prosecutor's] and mine particularly."

The court replied that it was "not saying people did not hear it. I'm not joining in that. I'm not sure people heard the words uttered. I do not believe in that context it has a dramatic effect as it might otherwise have had, and I think the actual words she uttered and in the context it was said, because it really was sort of nonresponsive and could cut either way in this case in terms of what was being proposed. [¶] All right. In any case, the motion is denied."

To begin with, we note that the record was insufficient for this court to address this issue. Accordingly, on this court's own motion we ordered that the record be augmented with the reporter's transcript of the voir dire. (Cal. Rules of Court, rule 8.761.)

During the court's questioning of prospective juror No. 18, who was in the jury box with other prospective jurors, the following exchange took place.

"THE COURT: . . . Is there anything about the fact that you dislike substance abuse that causes you to believe that you can't be fair and impartial?

PROSPECTIVE JUROR #18: I'm in a relationship with someone who has the same issue. And I believe I met his --sitting out there, I met a woman who was talking to her baby about maybe daddy will take a deal and these people are here for daddy; just sitting outside.

THE COURT: Oh, I see. You lost me for a minute. You're saying you overheard a conversation perhaps you shouldn't have overheard. Let me get back to you in a minute."

The court went on to address the prospective jurors concerning their perceptions of police officers in general.

Shortly thereafter, the court informed the prospective jurors that it had a supplemental list of witnesses that the court would read to them. The court read the following: "Genevera Migliori [sic], who happens to be the person that you were listening to outside."

After more questioning of prospective jurors, the court stated that it needed "to ask some questions of [name redacted] out of the presence of the other jurors." At a side bar conference, the following exchange took place.

"THE COURT: I think what happened is she just inadvertently heard a conversation out of the [sic].

THE COURT REPORTER: I'm sorry, I can't hear.

THE COURT: That it was to be Mr. Reynaga, and she was talking about something potentially -- what I need to ask you is just, is she speaking loud enough so a bunch of people heard?

PROSPECTIVE JUROR #18: Straight to her baby.

THE COURT: You just happened to be right there?

PROSPECTIVE JUROR #18: Yeah. Maybe the girl on the other side, but I don't think so."

The court excused prospective juror No. 18 for cause.

After the jury was impaneled, defense counsel made a motion for a mistrial as noted ante.

Appellant contends that his "judgment of conviction must be reversed because the jury inadvertently learned prior to deliberations that [he] took or attempted to take a deal." Appellant asserts, "the jury's inadvertent receipt of information regarding a deal offered to appellant raised a rebuttable presumption of misconduct. Because the statement could have permitted [the] jury to infer guilt before it heard any evidence in the present case, the receipt of the information was prejudicial and [his] judgment of conviction must be reversed."

Respondent concedes, as do we, that appellant has a right to an impartial jury, but argues that what happened here did not violate that right.3 We are not so convinced.

Essentially, the issue we must resolve is whether the receipt of the information that "maybe daddy will take a deal," was information obtained by the jurors that could have permitted the jury to infer guilt before it heard any evidence.

It is important to note that the court dismissed prospective juror No. 18 from the jury for cause. However, it is apparent from the record that she conveyed the information she received to the rest of the prospective jurors during voir dire; and the court made the rest of the prospective jurors aware that Ms. Migliore, the person who made the statement, was related to the case in which they were to be jurors.

"[A] juror's inadvertent receipt of information that had not been presented in court falls within the general category of 'juror misconduct.' " (People v. Nesler (1997) 16 Cal.4th 561, 579 (Nesler).)4

"Although inadvertent exposure to out-of-court information is not blameworthy conduct, as might be suggested by the term 'misconduct,' it nevertheless gives rise to a presumption of prejudice, because it poses the risk that one or more jurors may be influenced by material that the defendant has had no opportunity to confront, cross-examine, or rebut." (Nesler, supra, 16 Cal.4th at p. 579.) Thus, "[j]uror misconduct, such as the receipt of information about a party or the case that was not part of the evidence received at trial, leads to a presumption that the defendant was prejudiced thereby and may establish juror bias." (Id. at p. 578.)

In Nesler, supra, 16 Cal.4th 561, a plurality of the California court concluded that when a criminal defendant appeals the denial of his or her motion for a new trial on grounds of juror misconduct, this court must independently review, as a mixed question of law and fact, the trial court's conclusion that no prejudice arose from the misconduct. (Id. at p. 582, fn. 5, (lead opn. of George, C. J.).) "We accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. [Citations.]" (Id. at p. 582.)

"We assess the effect of out-of-court information upon the jury in the following manner. When juror misconduct involves the receipt of information about a party or the case from extraneous sources, the verdict will be set aside only if there appears a substantial likelihood of juror bias. [Citation.] Such bias may appear in either of two ways: (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not 'inherently' prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was 'actually biased' against the defendant. If we find a substantial likelihood that a juror was actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict, because a biased adjudicator is one of the few structural trial defects that compel reversal without application of a harmless error standard. [Citation.]" (Nesler, supra, 16 Cal.4th at pp. 578-579, italics added.)

Respondent characterizes this issue as one of spectator misconduct. However, we view it as an outside influence that could have affected the jury's perception of guilt or innocence.

Although not specifically articulated in the Constitution, the presumption of innocence is an integral part of the right to a fair trial. (Estelle v. Williams (1976) 425 U.S. 501, 503 [96 S.Ct. 1691].)

The logical inference of the information that "maybe daddy will take a deal" (hereinafter "the statement") is that appellant was not innocent of the charges and could settle the case before trial. Thus, the statement eroded the presumption of innocence before any evidence was presented. Judging the statement objectively, it is so prejudicial in and of itself that it is inherently and substantially likely to have influenced the jurors. Even though the court below instructed the jury that in a criminal action a defendant is presumed innocent, at least some of the jurors were aware after the statement that that was not be the case—something that would be difficult if not impossible to erase from memory.

"Under California law, if a juror's partiality would have constituted grounds for a challenge for cause during jury selection . . . but the juror's concealment of such a state of mind is not discovered until after trial and verdict, the juror's actual bias constitutes misconduct that warrants a new trial under Penal Code section 1181 . . . ." (Nesler, supra, 16 Cal.4th at p. 581.)

Here, however, although prospective juror No. 18 did not conceal anything about her receipt of information, on recognizing the potential for juror bias in this case, the court dismissed her for cause. Thus, implicitly the court concluded, as do we, that prospective juror No. 18 could not be impartial because she overheard the statement. Nevertheless, the court did not dismiss the rest of the prospective jurors, even though the court was aware that they "heard the words uttered" by prospective juror No. 18.

Respondent argues that it was unclear the prospective jurors heard the words uttered. The record belies such a conclusion. First, prospective juror No. 18's statement was loud enough for the court reporter to hear and record it. Second, defense counsel noted that she "happened to be looking at [prospective juror No. 18], and at the time she made that statement, and I did notice several jurors actually . . . stiffen, and/or take a look at her direction, and/or [the prosecutor's] and mine, particularly."

The only finding pertaining to the remaining jurors' impartiality that the court made was that it "cuts both ways. It also can suggest to someone who is paying attention that the People have a position of compromise in the case; that a deal has been offered." This conclusion would be acceptable if the information that the jurors received was that "daddy was offered a deal." That was not the information that the prospective jurors received.

Since Judge Stevens dismissed prospective juror No. 18 for cause, he must have concluded that prospective juror No. 18's impartiality was affected by hearing the statement. Accordingly, we find it to be unreasonable that he could conclude that the rest of the jurors were not inherently and substantially likely to have been influenced by the statement as well. Prospective juror No. 18 relayed the statement to them, the court told the remaining jurors that Ms. Migliore was related to the case, and the prospective jurors heard the statement.5

We cannot say how many of the prospective jurors seated in the box were on the final jury that was impaneled. However, even if we were to assume for the sake of argument that only the original 18 prospective jurors in the box heard the statement, it appears that at least three or four of the original 18 made it to the final panel. Given that a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors, it is settled that a conviction cannot stand if even a single juror has been improperly influenced. (In re Carpenter (1995) 9 Cal.4th 634.)

Since we have concluded that there appears to be a substantial likelihood of juror bias, appellant was deprived of his right to a unanimous verdict of 12 impartial jurors. Thus, the trial court erred in denying his motion for a mistrial. (Nesler, supra, 16 Cal.4th at p. 590.)

Given that the judgment must be reversed, it is not necessary to address appellant's remaining contentions other than those relating to claims of insufficient evidence to support the verdicts. (People v. Pierce (1979) 24 Cal.3d 199, 209-210.)

II. Sufficiency of Evidence that Appellant was the Proximate Cause

of Officer Hughes's Injuries

Appellant was charged in count two with resisting a police officer and causing serious bodily injury. (Pen. Code, § 148.10.) The charge stemmed from the incident with Officer Hughes during which Officer Hughes twisted his knee and tore his anterior cruciate ligament.

Appellant contends that his conviction on count two must be reversed because the evidence was insufficient to support a finding that he was the proximate cause of the injury to Officer Hughes's knee.

Penal Code section 148.10 states in pertinent part: " (a) Every person who willfully resists a peace officer in the discharge or attempt to discharge any duty of his or her office or employment and whose willful resistance proximately causes death or serious bodily injury to a peace officer shall be punished by imprisonment in the state prison for two, three, or four years, or by a fine of not less than one thousand dollars ($1,000) or more than ten thousand dollars ($10,000), or by both that fine and imprisonment, or by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment."

The court instructed the jury with CALJIC No. 3.40 that appellant's act had to cause the injury. The court continued by explaining to the jury that the "criminal law has it's [sic] own particular way of defining cause. A cause of the torn ligament is an act that sets in motion a chain of events that produces a direct, natural, and probable consequence of the act - - a cause of the torn ligament is an act that sets in motion a chain of events that produces a direct, natural, and probable consequence of the act, a torn ligament, and without which a torn ligament would not occur."

Thereafter, the court instructed the jury with CALJIC No. 3.41 as follows. "There may be more than one cause of the torn knee ligament. When the conduct of two or more persons contributes concurrently as a cause of the torn ligament, the conduct of each is a cause of the torn ligament if that conduct was also a substantial factor contributing to the result. [¶] A cause is concurrent if it was operative at the moment of the torn ligament and acted with another cause to produce the torn ligament. [¶] If you find that the defendant's conduct was a cause of the torn ligament to, in this case, Officer Hughes, then it is no defense that the conduct of some other person, even the injured person, contributed to the torn ligament."

In a challenge to the sufficiency of the evidence on appeal, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence-that is, evidence that is reasonable, credible and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Snow (2003) 30 Cal.4th 43, 66.) We must " ' "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." ' [Citation.]" (People v. Rayford (1994) 9 Cal.4th 1, 23.)

Furthermore, "it is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]" (People v. Martinez (2003) 113 Cal.App.4th 400, 412.) Moreover, "all conflicts in the evidence . . . must be resolved in favor of the judgment. [Citations.]" (People v. Mitchell (1986) 183 Cal.App.3d 325, 329.) "Reversal . . . is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) Even if we believe the evidence might also reasonably be reconciled with the innocence of the defendant, this view "does not warrant interference with the determination of the trier of fact." (People v. Towler (1982) 31 Cal.3d. 105, 118.)6

Appellant argues that the concept of proximate cause is used to distinguish between injuries for which a defendant will be held responsible and those for which the defendant will escape culpability. Proximate cause may be satisfied by a showing of actual or but for causation. We do not disagree with appellant.

"In general, '[p]roximate cause is clearly established where the act is directly connected with the resulting injury, with no intervening force operating.' (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Elements, § 36, p. 242.)" (People v. Cervantes (2001) 26 Cal.4th 860, 866 (Cervantes).)

Appellant argues, however, that in this case his running from Officer Hughes was not the actual cause of Officer Hughes's injury. Rather, the injury was caused by Officer Hughes's decision to tackle him even though the officer had previously injured his knee and Officer Teaford was in the area.

We disagree. Appellant conveniently forgets that he began violating Penal Code section 148.10 as soon as he started running and continued until Officers Hughes and Teaford finally subdued him. (People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1535, ["not only is flight from lawful arrest encompassed within the usual and ordinary meaning of 'willful resistance,' but it is also consistent with the intent of the Legislature to permit prosecution under section 148.10 for flight resulting in death or serious bodily injury to the pursuing officer"].) In short, appellant's flight put in motion the chase that ultimately led to Officer Hughes's injury. To put it another way, but for appellant's flight, Officer Hughes would not have needed to chase him and would not have injured his knee in the course of arresting him.

Appellant's attempt to argue that his role, though direct, was an insubstantial cause of the injury or that there was an unforeseeable, independent, intervening cause is unavailing.

" 'In general, an "independent" intervening cause will absolve a defendant of criminal liability. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 131, p. 149.) However, in order to be "independent" the intervening cause must be "unforeseeable . . . an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." [Citation.] On the other hand, a "dependent" intervening cause will not relieve the defendant of criminal liability. "A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause. If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is 'dependent' and not a superseding cause, and will not relieve defendant of liability. [Citation.] '[ ] The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough. [ ] The precise consequence need not have been foreseen; it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.' [Citation.]" [Citation.]' . . ." (Cervantes, supra, 26 Cal.4th at p. 871.)7

Here, Officer Hughes's injury was not the result of an "extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause." (Cervantes, supra, 26 Cal.4th at p. 870.) The officer's injuries were directly caused by appellant's act of fleeing the officer.

Finally, we are not persuaded by appellant's claim that Officer Hughes's injury was not a reasonably foreseeable consequence of his flight. It was reasonably foreseeable that appellant's illegal conduct would lead to the police chase. Given the nature of the chase, it was reasonably foreseeable that an officer might suffer injuries. Police often chase subjects and are injured in the course of so doing. In fact, the sponsor of Senate Bill 2172, which added section 148.10 to the Penal Code in 1990, stated that he was sponsoring the bill in response to an incident in which a San Francisco police officer was killed while trying to apprehend a fleeing suspect on foot. (Quentin Kopp, Letter to Governor Deukmejian, August 24, 1990.)

Appellant's assertion that it was unforeseeable that Officer Hughes would tackle him after he called for backup and saw Officer Teaford in the street does not persuade us otherwise. At the moment appellant broke through the hedge, he may have stopped for a moment. However, according to Officer Teaford, appellant ignored his command to get down on the ground and started to run. Appellant cannot obtain exoneration by maintaining that Officer Hughes should have reacted differently or more prudently. (People v. Armitage (1987) 194 Cal.App.3d 405, 421.)

In sum, there was substantial evidence that appellant was the proximate cause of Officer Hughes's knee injury.

III. Lawful Arrest

Appellant claims that his convictions on counts one and two must be reversed because there was insufficient evidence to show the statutory element of a lawful arrest.

Appellant claims that his arrest was invalid "because [Officer] Hughes'[s] failure to respond to [his] questions regarding why he was being arrested, violated Penal Code section 841."

Initially, we note that both Penal Code section 148.10 and Penal Code section 242 require the prosecution prove that the officer was acting lawfully at the time these offenses were committed. (Pen. Code, § 148.10, [the trier of fact must find the following facts . . ."[t]hat the detention and arrest was lawful]"; Pen. Code, § 243 ["[w]hen a battery is committed against the person of a peace officer . . . engaged in the performance of his or her duties"].) " 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties" for purposes of an offense defined in such terms, if the officer's conduct is unlawful . . . .' [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 815.)

Relying on People v. Castain (1981) 122 Cal.App.3d 138 (Castain), essentially, appellant contends that his arrest was illegal because he was not informed of the reason for his arrest when he asked Officer Hughes, twice, "What did I do?"

In Castain, the defendant was convicted of battery on a peace officer and resisting arrest. (Castain, supra, 122 Cal.App.3d at pp. 140-141.) The trial court excluded testimony of witnesses who claimed the officer had used excessive force on other occasions. (Id. at p. 142.) The Fourth District Court of Appeal reversed, reasoning that the evidence was relevant to show the officer had a propensity to use excessive force against citizens he arrested or detained and, by inference, had acted " 'in character' " during his confrontation with the defendant. (Id. at p. 143.) Although the Court of Appeal reversed Castain's conviction because the trial court erroneously excluded evidence, in so doing, the court instructed the trial court to give CALJIC No. 9.548 on retrial regarding the officer's obligation to tell an arrestee on request, why he or she is being arrested. (Id. at p. 145.)

Penal Code section 841 states: "The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape. [¶] The person making the arrest must, on request of the person he is arresting, inform the latter of the offense for which he is being arrested."

When there is an appreciable lapse in time such that the person arrested would not necessarily be familiar with the circumstances justifying the arrest, Penal Code section 841 requires a formal advisement. (Johanson v. Department of Motor Vehicles (1995) 36 Cal.App.4th 1209, 1218.) It is well settled, however, that strict compliance with section 841 is not required in other circumstances. (People v. Braun (1973) 29 Cal.App.3d 949, 969, disapproved on other grounds by People v. Green (1980) 27 Cal.3d 1, 25, fn. 10; People v. Hammond (1960) 54 Cal.2d 846, 854 [compliance with Penal Code section 841 was not required as the defendant was then engaged in the commission of an offense].)

Appellant was engaged in the commission of an offense, i.e., willfully resisting a police officer in the performance of his duty. Accordingly, compliance with the strictures of Penal Code section 841 was not required. (People v. Beard (1956) 46 Cal.2d 278, 281; People v. Herman (1958) 163 Cal.App.2d 821, 826.)

Accordingly, we reject appellant's contention that there was insufficient evidence to show the statutory element of a lawful arrest.

IV. Injury to Officer Hughes
Based on the injury to Officer Hughes's testicles, the jury convicted appellant of a violation of Penal Code section 243, subdivision (c).9 Relying on In re Michael P. (1996) 50 Cal.App.4th 1525 and People v. Longoria (1995) 34 Cal.App.4th 12, appellant asserts that this conviction cannot stand because the evidence was insufficient to support a finding that Officer Hughes's injury required medical attention.

Subdivision (f)(5) of Penal Code section 243 defines injury as "any physical injury which requires professional medical treatment."

In In re Michael P., supra, 50 Cal.App.4th 1525, upon which appellant relies as being similar to the present case, a minor was found to have committed battery with injury on a peace officer—an employee of the probation department. (Id. at p. 1527.) The officer testified that while he was driving a bus transporting the minor and other wards to a juvenile facility, the minor got out of his seat and kicked the officer in the chest and chin. (Id. at pp. 1527-1528.) The officer did not report the injuries to the medical staff nor did he seek medical treatment. No photographs of the injuries were taken and he suffered no bruises. (Id. at p. 1528.) The court found that the officer's failure to describe his injuries beyond being sore was "fatal" to a finding that he suffered injury within the meaning of Penal Code section 243, subdivision (c).

In People v. Longoria, supra, 34 Cal.App.4th 12 (Longoria), the Second District Court of Appeal held that the determinative factor is the seriousness of the injury, not whether the officer sought or received medical treatment. (Id. at p. 17.) In Longoria, a handcuffed suspect kicked an officer in the groin, causing him to fall to his knees. The suspect fell on top of the officer, pinning his hand between the handcuffs and the floor. As a result, the officer sustained cuts on his fingers and the bottom side of his right hand. After the arrest, the officer visited a hospital and his hand was x-rayed. There were no broken bones. However, the officer could not hold his firearm and was placed on restrictive phone duty for several days. The defendant argued that the kick to the groin and cuts to the officer's hand were not injuries because medical treatment was neither required nor given. (Ibid.) The reviewing court held that the dispositive factor was not whether the officer received medical treatment, but whether treatment was required for his injury. (Ibid.)

"It is the nature, extent, and seriousness of the injury-not the inclination or disinclination of the victim to seek medical treatment-which is determinative. A peace officer who obtains 'medical treatment' when none is required, has not sustained an 'injury' within the meaning of section 243, subdivision (c). And a peace officer who does not obtain 'medical treatment' when such treatment is required, has sustained an 'injury' within the meaning of section 243, subdivision (c). The test is objective and factual." (Longoria, supra, 34 Cal.App.4th at p. 17, fn. omitted.)

Here, a reasonable jury could conclude that the injury to Officer Hughes was severe enough to require professional medical treatment. Officer Hughes testified that he nearly "black[e]d out" and that his testicles were sore and swollen for a week. Nevertheless, appellant argues that although Officer Hughes told the physician about his groin injury, the doctor apparently did not deem the injury worthy of treatment. This is pure speculation on the part of appellant. Officer Hughes testified that he was prescribed Vicodin. A reasonable jury could conclude that the Vicodin would take care of the soreness to Officer Hughes's testicles as well as the pain to his knee.

In sum, we find there was sufficient evidence from which a reasonable jury could find that appellant inflicted "injury" on Officer Hughes.

V. On-Bail Enhancement

Finally, appellant raises a claim of sentencing error, which we would not normally address because the case is being remanded for a retrial. However, appellant couches the issue as one of insufficient evidence to support "one on-bail enhancement" He argues that there is insufficient evidence to support an on-bail enhancement because he was not convicted of a felony in case No. F09717 as the prosecutor dismissed the charges in that case. After reviewing the record, we find that the jury did not make a finding that appellant was on bail in case No. F09717 when he committed the offenses charged in case No. F09677.

The record shows the following, which we outline for the trial court to avoid any confusion on retrial. A complaint in case No. F09677 charged appellant with five offenses occurring on June 17, 2004, involving Santa Cruz Police Officer Holly Hoy. Count one charged possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)); count two charged receiving stolen property (Pen. Code, § 496, subd. (a)); count three charged possession of injection/ingestion device ) (Health & Saf. Code, § 11364); count four charged giving false information to a police officer (Pen Code, § 148.9, subd. (a)); and count five charged driving on a suspended license (Veh. Code, § 14601.2, subd. (a)).

The preliminary hearing in case No. F09677 was held on July 19, 2004. Subsequently, an information in case No. F09677 was filed on July 22, 2004, charging the same offenses that occurred on June 17, 2004, and added two misdemeanor charges of driving on a suspended license on or about June 1, 2003, and driving on a suspended license on or about April 14, 2004.

A complaint in case No. F09717 charged appellant with various offenses involving domestic violence against Mary Reynaga.

An amended complaint in case No. F10827, filed on February 22, 2005, charged appellant with the offenses occurring on January 15, 2005 involving Officer Hughes. An information was filed March 7, 2005, in case No. F10827. Count one charged appellant with battery with injury on a peace officer (Pen. Code, § 243, subd. (c)(2)); count two charged resisting a police officer with serious bodily injury (Pen. Code, § 148.10); count three, possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)); count four, driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)); count five, driving with a blood alcohol level of .08 (Veh. Code, § 23152, subd. (b)); count six, driving with a suspended license (Veh. Code, § 14601.2, subd. (a)); and count seven, resisting a police officer (Pen. Code, § 148, subd. (a)(1)). As to counts one through three, the information alleged two on-bail enhancements. Specifically, the information alleged that appellant was released from custody in case No. F09717 (the domestic violence case) and case No. F09677 (the offenses involving Officer Hoy) when he committed the aforementioned offenses.

On March 9, 2005, the court consolidated case No. F09677 (involving Officer Hoy) with case No. F10827 (involving Officer Hughes) under one case No. F09677. The amended information filed under the F09677 case number on July 7, 2005, charged appellant with the crimes originally alleged in the separate informations—F09677 and F10827—except that the receiving stolen property charge does not appear in the amended information.10

The amended information specified that when appellant committed the offenses on January 15, 2005, counts one through three involving Officer Hughes, he was released on bail on his own recognizance in case Nos. F10827 (involving Officer Hughes)11 and F09717 (the domestic violence case). Each on-bail enhancement was alleged separately as to each of the three counts. That is, the amended information F09677 alleged two on-bail enhancements as to each count.

However, the verdict forms contained only one on-bail enhancement as to each count. Specifically, the verdict forms provided the following. "We the jury in the above-entitled case, having found the defendant guilty of . . . , find the special allegation that the defendant COMMITTED THE OFFENSE WHILE OUT ON HIS OWN RECOGNIZANCE on case number F09677, within the meaning of PENAL Code section 12022.1 to be ______________ [¶] TRUE/NOT TRUE"

There is nothing in the record to indicate why the verdict forms were prepared this way, nor discussion as to why the verdict forms contained only one on-bail enhancement—the original case No. F09677 involving Officer Hoy —and eliminated the on-bail enhancement based on case No. F09717. The effect of the change was that the jury was asked to make a finding as to only one on-bail enhancement, not two.

After the jury verdicts, the court conducted a trial on appellant's two prior convictions. Thereafter, the prosecutor moved to dismiss the domestic violence case No. F09717. The court dismissed that case in this interest of justice.

The prosecutor's sentencing memorandum stated that one section 12022.1 on-bail enhancement was applicable. In sentencing appellant, the court imposed only one on-bail enhancement for count one and only one on-bail enhancement for count two.

Accordingly, as to counts one and two appellant was convicted of only one on-bail enhancement attached to each count. He was not convicted of an on-bail enhancement related to case No. F09717.

Disposition
The judgment is reversed. The matter is remanded to the trial court for a new trial.

_____________________________

ELIA, J.

WE CONCUR:

_____________________________

RUSHING, P. J.

_____________________________

PREMO, J.



1 It appears that the package contained two small wrapped packages of powder. Only one of the packages was weighed and determined to contain .21 grams. The other package was not weighed.



2 Officer Hughes had a previous successful ACL repair in 1991.



3 A defendant accused of a crime has a constitutional right to a trial by unbiased, impartial jurors. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; Irvin v. Dowd (1961) 366 U.S. 717, 722 [81 S.Ct. 1639]; In re Hitchings (1993) 6 Cal.4th 97, 110.)



4 In Nesler, during the sanity phase of the trial, a juror engaged in misconduct by sitting in a bar while a woman revealed damaging information about the defendant for half an hour. The juror did not identify herself as a juror and did not leave. She did not disclose the outside information or its source to the trial court. Instead, the juror violated her oath and disregarded the trial court's instructions by revealing the information to the other jurors. She used this information during deliberations to persuade the other jurors to change their views. (Nesler, supra, 16 Cal.4th at p. 579.) Our Supreme Court found the juror was actually biased and the presumption of prejudice that arose from her misconduct was not rebutted. (Id. at p. 589.)



5 At one point, the court concluded "the statement" did not have "the affect that it might have had in another context, just the words she uttered." Again, the record does not support this assertion. Defense counsel noted for the record that she was looking at the prospective jurors when "the statement" was relayed to the court and "notice[d] several jurors actually stiffen, and/or take a look at her direction, and/or [the prosecutor's] and mine, particularly." If the prospective jurors had not heard "the statement" or understood it in context, they would not have reacted as they did. Accordingly, we do not find substantial evidence to support the trial court's conclusion.



6 This standard of review is applicable to all appellant's claims of insufficiency of the evidence to support the verdicts.



7 In Cervantes, defendant and fellow gang members attended another gang's party. The gangs were not enemies. When a woman defendant knew declined to go elsewhere with defendant, he insulted her, and one of the other gang's members drew his gun and threatened defendant. Defendant drew his gun. In an attempt to defuse the situation, another of the other gang's members touched defendant; defendant then shot and injured him. A melee ensued. Shortly thereafter, a member of the gang holding the party was shot to death by one of defendant's fellow gang members. The defendant was convicted of that murder under a "provocative act" theory. The California Supreme Court held the evidence was insufficient as a matter of law to support the conviction because the essential element of proximate cause was not established. Defendant was not the initial aggressor in the incident that gave rise to the provocative act. There was no direct evidence the victim's unidentified murderers were even present at the scene of the provocative act. That is, in a position to actually witness defendant shoot the intervener, and defendant was not present at the scene where the victim was fatally shot. Accordingly, the Cervantes court concluded the fatal shooting was an independent intervening act. (Cervantes, supra, 26 Cal.4th at pp. 863-865, 872.)



8 That instruction is now CALJIC No. 16.105, which provides: "An arrest is made by an actual restraint of the person arrested or by [his] [her] submission to the custody of an officer. In making an arrest, the officer may subject the person being arrested to as much restraint as is reasonable for the arrest and detention. [¶] The officer must inform the person to be arrested of the intention to arrest [him] [her], of the cause of arrest, and the authority to make it. [¶] The officer need not so inform the person being arrested when the officer making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission or an attempt to commit [an infraction] [or] [a misdemeanor] [or] [a felony], or when the person to be arrested is pursued immediately after the commission of [an infraction] [or] [a misdemeanor] [or] [a felony], or after an escape. [¶] [The officer making the arrest must, on request of the person being arrested, inform the latter of the offense for which [he] [she] is being arrested.]"



9 Penal Code section 243 provides in pertinent part: "(c)(1) When a battery is committed against a custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a nonsworn employee of a probation department, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, or animal control officer engaged in the performance of his or her duties, or a physician or nurse engaged in rendering emergency medical care, and an injury is inflicted on that victim, the battery is punishable by a fine of not more than two thousand dollars ($2,000), by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment, or by imprisonment in the state prison for 16 months, or two or three years. [¶] (2) When the battery specified in paragraph (1) is committed against a peace officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman and the person committing the offense knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, the battery is punishable by a fine of not more than ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year or in the state prison for 16 months, or two or three years, or by both that fine and imprisonment. [¶] (d) When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment in the state prison for two, three, or four years."



10 Further, the amended information changed some of the count designations.



11 This does not make sense. Effectively, the on-bail enhancement alleged that appellant committed the offenses in counts one through three against Officer Hughes when he was out on-bail in case No. F10827, which was the original case in which counts one through three were charged.

What does it mean to defend your DUI case?

California DUI defense information

Do you have a choice?

Defending your California DUI / California DMV case means that a California Drunk Driving Defense Lawyer will do what is possible to positively affect the outcome.

Defending your California DUI / DMV case means because of your California DUI defense attorney's efforts, the state may not be able to put all the necessary, competent and admissible evidence together in order to convict you or take away your driving privilege.

Defending your California Drunk Driving Case means you have a chance at some level.

Defending your California DUI / DMV case does not mean you have to go to California DUI Court or the California DMV. Your California DUI Lawyer can go for you.

Not defending your California DUI case means there is a 100% chance you will be found guilty of California DUI.

Not defending your California DMV case means there is a 100% chance California DMV will take away your driving privilege.

Not defending your California DUI / DMV case means you are guaranteed to suffer every possible, negative consequence the state wants to impose.

Are you the kind of person who likes to do something reasonable in order to try to help an initially bad situation?

If so, you probably understand the need to simply rely on an expert like a California DUI Defense Attorney Specialist.

New California DUI / DMV Case re: Public Safety Activities

California DUI / DMV Defense Lawyer case law update

DMV Hearsay from a fireman

In this California DMV case, the trial court denied the Writ Petition upholding the HO’s decision. There was evidence to support the four issues of this refusal case. Petitioner contended that the evidence did not support a finding that there was PC to detain nor driving because the fire chief’s comments and report to the officers on the sworn and unsworn reports, were inadmissible, and the witnesses status as a non-peace officer, does not comply with the cases that allow officer to officer transfer of information.

The key issue was proof of driving. The fireman attended to the emergency of getting the vehicle off railroad tracks. In dicta, the court stated: “In reporting his personal observations to the reporting officer, (Fire) Captain Uzdarines was acting pursuant to his duty as a fire captain to observe facts and report them correctly…this was a classic public safety activity”.

Since there was no evidence presented to the contrary, the public records introduced (DS367 and supplemental reports – Evidence Code section 1280) were adequate proof of the issue of PC to stop and driving. The court mainly found that the statements would also be admissible to supplement and explain the admissions made by the Petitioner pursuant to GC section 11513.

When DMV has statements given to a peace officer by a non-peace officer upon an arrest made for a California DUI, and the witness does not testify at the DMV hearing, DMV has the burden of proof to establish the person was acting within his or her job duties, in a capacity that would reflect a “public safety activity”.

If not, DMV cannot then use those statements within the DS367 and supplemental reports to establish PC to stop and driving.

This point is dicta since there were admissions of driving used by DMV to supplement and explain the vague admission of driving. See e.g. Government Code section 11513.

This case may be mischaracterized or analogized by DMV when the first responder to an incident or the stop is a Border patrol or INS agent, homeland security officer, park ranger or forest ranger, or military personnel on duty at the gates. DMV's key issue will likely be whether the reporting person is acting in their capacity as a public employee doing their duties which can be classified as public safety activities.

DMV will not be able to use this case for private security personnel or public employees who are not on duty or who do not perform public safety activities.

Hildebrand v. DMV Docket D048540 (July 9, 2007)

Note: Driving need not be proven in a California DMV APS Refusal case, a point not yet ruled on by the California Supreme Court while Hildebrand was pending.

California DUI Breath Machine Maker's Source Code to go to DUI Defense Attorneys

DUI Defense Attorney update

Source code will be turned over to defense attorneys.

When Dale Lee Underdahl was arrested on February 18, 2006, on suspicion of
drunk driving, he submitted to a breath test that was conducted using a
product called the Intoxilyzer 5000EN.

During a subsequent court hearing on charges of third-degree DUI, Underdahl
asked for a copy of the "complete computer source code for the (Intoxilyzer)
currently in use in the state of Minnesota."

An article in the Pioneer Press quoted his attorney, Jeffrey Sheridan, as
saying the source code was necessary because otherwise "for all we know,
it's a random number generator." It is hardly new technology: One criminal
defense attorney says the Intoxilyzer is based on the antique Z-80
microprocessor.

A judge granted the defendant's request, but Michael Campion, Minnesota's
commissioner in charge of public safety, opposed it. Minnesota quickly asked
an appeals court to intervene, which it declined to do. Then the state
appealed a second time.

What became central to the dispute was whether the source code was owned by
the state or CMI, the maker of the Intoxilyzer.

Minnesota's original bid proposal that CMI responded to says that "all
right, title, and interest in all copyrightable material" that CMI creates
as part of the contract "will be the property of the state." The bid
proposal also says CMI must provide "information" to be used by "attorneys
representing individuals charged with crimes in which a test with the
proposed instrument is part of the evidence," which seems to include source
code.

Campion's office, on the other hand, claims the source code is confidential,
copyrighted and proprietary. It has asked for what's known as a "writ of
prohibition" barring the source code from being released.

The Minnesota Supreme Court rejected the request, saying "a writ of
prohibition is an extraordinary remedy and is only used in extraordinary
cases."

This isn't the first time breathalyzer source code has been the subject of
legal scrutiny. A Florida court ruled two years ago that police can't use
electronic breathalyzers as courtroom evidence against drivers unless the
source code is disclosed. Other alleged drunk drivers have had charges
thrown out because CMI refuses to reveal the Intoxilyzer source code.

Excerpt from Minnesota Supreme Court's ruling:

The district court ordered the production of the "complete computer source
code" for the Intoxilyzer 5000EN. In support of its order, the district
court found that under the contract between the state and CMI, the state
owned the source code for the Intoxilyzer 5000EN. The court of appeals
concluded that the district court's finding was not clearly erroneous given
the concession in the state's petition seeking the writ of prohibition that
it owned that portion of the source code created exclusively for the
Intoxilyzer 5000EN...

Having carefully reviewed the record presented and the arguments of the
parties, we conclude that we cannot decide the copyright issues raised.
Although the parties direct us to copyright law regarding works for hire and
derivative works, they provide only a superficial application of that law to
the facts of this case. Perhaps that is because the factual record before us
is inadequate, thereby making any determination regarding either copyright
theory impossible.

Resolution of this issue, however, does not require us to apply federal
copyright law because we also conclude that the commissioner has failed to
meet his burden of demonstrating that the information sought is clearly not
discoverable and that he has no adequate remedy at law. While on the one
hand the commissioner argues that ownership of the source code for the
Intoxilyzer 5000EN is to be determined under federal copyright law and that
under that law he does not have possession, custody or control of the source
code, on the other hand he concedes that the state owns and thus controls
some portion of the source code. That concession is supported by the express
language of the RFP granting CMI the right to supply the Intoxilyzer 5000EN
to the state.

Further, given the express language of the RFP that requires CMI to provide
the state with "information to be used by attorneys representing individuals
charged with crimes in which a test with the (Intoxilyzer 5000EN) is part of
the evidence" when production of the information is mandated by court order
"from the court with jurisdiction of the case," it is not clear to us that
the commissioner is unable to comply with the district court's order.
Accordingly, we cannot conclude that the district court ordered the
production of information that is clearly not discoverable...

We do not agree that the commissioner lacks adequate remedies at law. As
discussed above, irrespective of whether the state owns any portion of the
source code, CMI agreed, in the RFP, to provide the attorneys representing
individuals charged with crimes "in which a test with the (Intoxilyzer
5000EN) is part of the evidence" information necessary to comply with a
court's order. We conclude that the commissioner's ability to enforce its
contract with CMI constitutes an adequate legal remedy.

None of the four circumstances justifying the issuance of a writ of
prohibition...are present in this case. We, therefore, hold that the court
of appeals properly denied the commissioner's petition for a writ of
prohibition.

CMI makes California DUI Intoxilyzers which are used in San Diego PD DUI jurisdictions.

Suppression of California CHP Evidence Unlawfully Obtained

California Criminal Defense / DUI Attorney update - new case in favor of Driver

FACTUAL AND PROCEDURAL BACKGROUND of P_v_Layton_DCA4___8_6_07 :

On January 25, 2004, Police Officer Humberto Gonzalez of the California Highway Patrol responded to the scene of a traffic accident involving Layton's vehicle. Officer Gonzalez went to Layton's residence and knocked on the front door, but, receiving no response, walked to the back of the house and knocked on the back door; no one answered. Gonzalez walked to a detached garage and noticed an open door on the side of the garage; he stepped into the garage, leaned in and observed a fluorescent light fixture and marijuana plants. Almost immediately, Layton exited the back of the house, and he was arrested. Gonzalez's report of his observations was included in an affidavit written by Officer Sotelo to support probable cause to obtain a search warrant. Pursuant to the warrant, police seized several marijuana plants, growing materials and various drug paraphernalia from Layton's garage. The People filed a felony complaint.
On January 10, 2006, Layton filed a motion to suppress evidence pursuant to Penal Code section 1538.5. At the hearing on the motion, the trial court treated the motion as one to traverse the warrant. Based on Officer Gonzalez's own testimony, the court found he impermissibly entered the threshold of the garage. Therefore, the trial court found Sotelo's "affidavit was misleading" because it "allowed the magistrate to reasonably infer from its face that the alleged contraband was in plain sight. And after review of all the evidence in this motion, including the pleadings on the motion and the testimony, particularly Officer Gonzalez's testimony, I feel that the defendant . . . through a preponderance of the evidence, has shown that there was an illegal entry of this area, of the defendant's property . . . without a warrant." Nonetheless, the court denied the motion to suppress because Layton did not make a sufficient showing that Sotelo himself "knowingly, recklessly made false statements or knowingly and recklessly omitted material information" from the affidavit.
On March 3, 2006, Layton waived his right to a jury trial and agreed the trial court could decide the case based on the arrest report prepared by the police. The court found him guilty of cultivating marijuana (Health & Saf. Code, § 11358; count 1) and driving with a suspended license (Veh. Code, § 14601.5, subd. (a); count 3), but not guilty of leaving the scene of an accident (Veh. Code, § 20002, subd. (b); count 2.) He was sentenced to 3 years of probation with 120 days in county jail.
DISCUSSION
The Fourth Amendment of the United States Constitution secures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (U.S. Const., 4th Amend.) A warrantless search is unreasonable per se, and any evidence obtained from such a search shall be suppressed unless it falls within a narrow exception to the warrant requirement. (People v. Woods (1999) 21 Cal.4th 668, 674; Pen. Code, § 1538.5.) Illegally obtained evidence may not establish probable cause in a search warrant affidavit. (People v. Machupa (1994) 7 Cal.4th 614, 624-628, 632.)
Here, illegally obtained evidence provided the only foundation to establish probable cause in the search warrant, but the trial court did not apply the correct burden of proof to the motion to suppress. Instead, it applied the standard for a traversal of a warrant outlined in Franks v. Delaware (1978) 438 U.S. 154, 171-172. "The error was prejudicial because the allocation of the burden of proof with respect to the two issues is not only different but diametrically opposite. In a motion to suppress the fruits of a warrantless search, the burden is on the prosecution to prove by a preponderance of the evidence that the detention and search were justified. [Citations.] In a Franks motion, the search warrant is presumptively valid and the burden falls on the defendant to show that it contained deliberately or recklessly false statements. [Citation.] Since the court [ultimately] adjudicated the motion under the more stringent Franks standard, the error cannot be deemed harmless." (People v. Torres (1992) 6 Cal.App.4th 1324, 1334.) Based on the trial court's findings, it would have granted the motion to suppress if it applied the proper standard. Therefore, the count 1 conviction must be reversed.
DISPOSITION
The conviction of marijuana cultivation (Health & Saf. code, § 11358; count 1) is reversed and the matter remanded for the trial court to grant the motion to suppress; in all other respects the judgment is affirmed.

Remember: If the police go into your garage, call a California Defense / DUI Attorney for help. Your home's curtilage is entitled to protection.

http://california.lp.findlaw.com/ca00_casecode/index.html

California DUI Attorney issues from Hand Sanitzer alcohol

California DUI attorney news

Hand Sanitizer alcohol poisoning

Ok. I don't know where to begin because the last 2 days of my life have been such a blur. Yesterday, My youngest daughter Halle who is 4, was rushed to the emergancy room by her father for being severely lethargic and incoherent. He was called to her school by the school secretary for being "very VERY sick." He told me that when he arrived that Halle was barely sitting in the chair. She couldn't hold her own head up and when he looked into her eyes, she couldn't focus them.

He immediately called me after he scooped her up and rushed her to the ER. When we got there, they ran blood test after blood test and did x-rays, every test imaginable. Her white blood cell count was normal, nothing was out of the ordinary. The ER doctor told us that he had done everything that he could do so he was sending her to Saint Francis for further test.

Right when we were leaving in the ambulance, her teacher had come to the ER and after questioning Halle's classmates, we found out that she had licked hand sanitizer off her hand. Hand sanitizer, of all things. But it makes sense. These days they have all kinds of differents scents and when you have a curious child, they are going to put all kinds of things in their mouths.

When we arrived at Saint Francis, we told the ER doctor there to check her blood alcohol level, which, yes we did get weird looks from it but they did it. The results were her blood alcohol level was 85% and this was 6 hours after we first took her. Theres no telling what it would have been if we would have tested it at the first ER.

Since then, her school and a few surrounding schools have taken this out of the classrooms of all the lower grade classes but whats to stop middle and high schoolers too? After doing research off the internet, we have found out that it only takes 3 squirts of the stuff to be fatal in a toddler. For her blood alcohol level to be so high was to compare someone her size to drinking something 120 proof. So please PLEASE don't disregard this because I don't ever want anyone to go thru what my family and I have gone thru. Today was a little better but not much. Please send this to everyone you know that has children or are having children. It doesn't matter what age. I just want people to know the dangers of this.

Thank you
Lacey Butler and family
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4-year-old Halle Butler of Okmulgee, Oklahoma was hospitalized with symptoms of intoxication after ingesting a small amount of hand sanitizer in her pre-kindergarten classroom.

The product, which consists of 62% ethyl alcohol (more than most hard liquors), had been applied to the children's hands by their teacher just before lunchtime, but instead of rubbing it in, Halle licked it off her skin and essentially got drunk. She was fine once the alcohol had worked its way through her system, but the incident threw such a fright into parents and administrators alike that further use of the product was banned in the school.

I should note that the email contains one apparent factual error (or perhaps it's only a typo), namely that the Halle's blood alcohol level was measured at "85%" in the emergency room -- an impossibly high percentage. The author probably intended to write ".085"

A similar mishap was reported last January in Minneapolis, where 2-year-old Sydney Moe ate some of the hand sanitizer gel her mother kept by the sink and was rushed to the emergency room with a blood alcohol concentration of .10 percent -- legally drunk, by the statutes in most states. She, too, recovered quickly, but the Minnesota Poison Control Center warned that the high alcohol content of hand sanitizers and other common household products such as mouthwash and perfumes can pose a serious health threat to small children and should be kept out of their reach except under parental supervision. Some hand sanitizers contain isopropyl (rubbing) alcohol instead of ethyl alcohol, making them even more dangerous to ingest.

http://www.sandiegoduihelp.com

http://www.yahoo.com

Listen to a friend when hiring a Criminal DUI Attorney?

Maybe. Maybe not.

Sometimes a friend may have special California DUI Attorney Defense information.

Other times, a friend may simply not know how the case should be handled because the friend did not go through exactly what you went through in your present California DUI arrest process.

The Good Old Days of having a friendly policeman or judge dismiss your California DUI are gone.

Special interest groups like MADD put lots of pressure on California DUI judges and California DUI lawyer prosecutors to aggressively prosecute California DUI cases.

In many instances, you may not be aware of additional penalties, possible enhancements and/or increased punishment you may actually be facing.

Don't be surprised when you hear about it the first time from a California DUI Judge who you decide to first appear in front of and who you then find out wants to throw you in Jail!

http://www.SanDiegoDrunkDrivingAttorney.net may be where good friends tell you to first visit.

California DUI Drug & Alcohol Interaction

California DUI - Drugs Attorney news

When one mixes prescription medication with alcohol, it may be time for a California DUI / Drunk Driving Attorney to reach for Donald J. Bartell / Anne D. Imobstersteg in Attacking and Defending Drunk Driving Tests' California DUI Lawyer book, including under section 2:41 [Factors That Affect Absorption] First Pass Metabolism: Ibuprofen, Ranitidine, Cimetidine, and Aspirin.

The understanding of drug-alcohol interactions is important for the California DUI Attorney's full evaluation of a California DUI .

"First-pass" metabolism generally refers to the metabolism of alcohol that occurs before alcohol actually reaches the blood stream.

This phenomenon is one reason why alcohol, when consumed with food, exhibits a lower alcohol curve in addition to a delayed peak.

Here are two sample quotes from drug descriptions.

http://www.rxlist.com/cgi/generic/verapsr_ad.htm

Alcohol: Verapamil has been found to inhibit ethanol
elimination significantly, resulting in elevated blood
ethanol concentrations that may prolong the
intoxicating effects of alcohol (see CLINICAL
PHARMACOLOGY: Pharmacokinetics and Metabolism).


http://www.rxlist.com/cgi/generic/verapsr_cp.htm#CP

In ten healthy males, administration of oral verapamil
(80 mg every 8 hours for 6 days) and a single oral dose
of ethanol (0.8 g/kg) resulted in a 17% increase in
mean peak ethanol concentrations (106.45 ± 21.40 to
124.23 ± 24.74 mg·hr/dl) compared to placebo. The area
under the blood ethanol concentration versus time curve
(AUC over 12 hours) increased by 30% (365.67 ± 93.52 to
475.07 ± 97.24 mg·hr/dl). Verapamil AUCs were
positively correlated (r=0.71) to increased ethanol
blood AUC values (see DRUG INTERACTIONS) .


San Diego California DUI Lawyer Rick Mueller, a San Diego California Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego California DUI Lawyer will help you. http://www.sandiegodrunkdrivingattorney.net

Donald Bartell can be reached at http://www.dui-california.com/don_bartel.html - (951) 788-2230.

Related California DUI Lawyer information can be found at
http://www.sandiegoduilawyer.com/2007/08/am-i-san-diego-dui-if-i-fell-asleep-or.html and http://www.sandiegodrunkdrivingattorney.net/Sleep-Driving.html .

California - San Diego DUI Help Blog http://www.sandiegoduihelp.com/duiblog/index.html

California vehicles to have DUI immobilization system

California DUI Lawyer news

Nissan unveiled a new concept car featuring multiple preventative features designed to reduce California DUI / drunk driving utilizing technologies that are purportedly designed to detect the driver's state of sobriety through smell, facial monitoring and driving behavior.

When a California DUI driver sits behind the whell and alcohol is detected, these technologies activate a range of preventive measures including immobilization of the California vehicle.

• Alcohol odor sensors — A hi-sensitivity alcohol odor sensor is built into the transmission shift knob, which is able to detect the presence of alcohol in the perspiration of the driver's palm as he or she attempts to start driving. When the alcohol-level detected is above the pre-determined threshold, the system automatically locks the transmission, immobilizing the car. A "drunk driving" voice alert is also issued via the car navigation system.

Additional alcohol odor sensors are also incorporated into the driver's and passenger seats to detect the presence of alcohol in the air inside the vehicle cabin. When alcohol is detected, the system issues both a voice alert and a message alert on the navigation system monitor.

• Facial monitoring system — A camera is mounted on the instrument cluster facing the driver to monitor the driver's face. The system is calibrated to monitor the driver's state of consciousness through their eyes. When the system detects signs of drowsiness, a voice and message alert is triggered via the navigation system. Additionally, a seat-belt mechanism is activated, which tightens around the driver to gain his or her immediate attention.

• Driving behavior — By constantly monitoring the operational behavior of the vehicle (e.g. sensing if the vehicle is drifting out of its driving lane), the system can identify signs of inattentiveness or distraction in the driver. When the system detects such behavior, voice and message alerts are issued via the navigation system. The seat-belt alert mechanism is also activated, tightening around the driver to gain immediate attention.

This concept car was developed as an exploratory platform to showcase breakthrough technologies that could potentially be applied in future California production cars, part of an ongoing program from Nissan contributing towards preventing California drunk driving.

Nissan has already launched and is developing several initiatives to help prevent California drunk driving. In June, the company introduced the "drunk driving" message alert on its navigation system. In July, Nissan also began testing of a new on-board breathalyzer system in cooperation with several local government authorities in Japan, where an interlock mechanism will immobilize the vehicle if the driver's breath indicates the presence of alcohol above a specified level. California DUI lawyers wonder if the system is reliable and accurate.

Nissan is taking a holistic approach towards safety that extends beyond the technology built into its vehicles. To achieve a "safe driving environment," Nissan has embarked on the Intelligent Transport System Project (ITS) in Japan aimed at helping to reduce road accidents via the analysis of traffic data collected from on-the-road vehicles and traffic beacons. California DUI attorneys object to this Big Brother approach.

http://www.sandiegoduihelp.com/duiblog/index.html
San Diego California DUI / San Diego California drunk driving blog

Asthma as a California DUI Attorney Factor

Asthma. A chronic inflammatory disorder of the airways which causes airflow obstruction and forced expiratory volumes are markedly reduced. Those suffering from asthma might not be able to fulfill the sampling requirements (time-pressure-volume) of some ( DUI ) breath-alcohol analyzers.

Source

PHYSIOLOGY, PHARMACOLOGY, AND TOXICOLOGY OF ALCOHOL
Glossary of Terms - Update 2006
Complied by 1A.W. Jones, B.Sc., Ph.D., D.Sc.

Consult your California drunk driving lawyer for more information.

2 California DUI Breath Test Results within .02% of each other?

California DUI Attorney - Recommended Standard for Breath Testing

At least two separate breath samples should be collected and analyzed individually in performing any quantitative evidential breath-alcohol analysis.

The breath samples should be collected at intervals of not less than 2 nor more than 10 minutes, after an initial deprivation period of at least 15 minutes.

Reported breath-alcohol analysis results shall be truncated to two decimal places; and all results obtained shall be reported. Consecutive breath-alcohol analysis results within 0.02 g/210 L. without regard to sign, shall be deemed to be in acceptable agreement.

Source: NATIONAL SAFETY COUNCIL
A HISTORY of THE COMMITTEE ON ALCOHOL AND OTHER DRUGS (CAOD)

RECOMMENDATION OF THE SUBCOMMITTEE ON TECHNOLOGY
DUPLICATE BREATH ALCOHOL TESTING
October 1986

Background on the Committee

The Committee on Alcohol and Other Drugs, first known as the Committee on Tests for Intoxication, was established in the National Safety Council in 1936. From that time, the Committee has been active in making recommendations for the control of the drinking-driving problem, including legislation, enforcement, education, chemical testing equipment, training of testing personnel, and other aspects of alcohol countermeasures programs. Its role had been limited to developing recommendations and standards, but its members have been active in assisting in many aspects of programs designed to reduce the drinking-driving problem. In fact, many of the members, past and present, have been directly involved as officials in programs.
There have been numerous contributions by individual members of the Committee, such as the development of breath testing devices and methods for blood and urine tests that have been widely used. These contributions, which include numerous scientific articles and papers on the subject of chemical tests, have added greatly to the total sum of knowledge in this important scientific effort.
This report attempts to present in condensed form most of the recommendations, standards, and work of the Committee for the past six decades.

A California DUI Lawyer can help with this issue.

Are you 65 years old & arrested for a California DUI ?

California DUI Lawyer news

If you are 65 years old or more, did the California DUI police officer have you perform field sobriety testing like the Walk and Turn and the One Leg Stand?

If so, you want your California Drunk Driving Attorney to bring in this federal DUI manual:

According to the National Highway and Traffic Safety Administration (NHTSA) February 2006 Standard Field Sobriety Testing (SFST) manual, regarding the Walk and Turn and One Leg Stand tests, it states: (T)he original research indicated that individuals over 65 years of age.....had difficulty performing (these) test(s).

This is another reason why senior citizens arrested for a California Drunk Driving charge need to retain an experienced California DUI Attorney.