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Filed 10/30/07 P. v. Brown CA 4/2

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
ALAN LEONARD BROWN,
Defendant and Appellant.
E041149
(Super.Ct.No. RIF125140)
OPINION
APPEAL from the Superior Court of Riverside County. Robert George Spitzer,
Judge. Affirmed.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and
Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Maxine
Cutler, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
2
A jury found defendant and appellant Alan Leonard Brown guilty of second
degree murder (Pen. Code, § 187, subd. (a),1 count 1), driving under the influence
causing bodily injury (Veh. Code, § 23153, subd. (a), count 2) and driving with a blood
alcohol content of .08 percent or greater causing bodily injury. (Veh. Code, § 23153,
subd. (b), count 3.) Defendant pled guilty to the misdemeanor of driving with a
suspended license. (Veh. Code, § 14601.2, subd. (a), count 4.) The jury also found true
the enhancement allegations on counts 2 and 3 that defendant personally inflicted great
bodily injury on two victims. (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The trial
court sentenced defendant to a total term in state prison of 23 years, including 15 years to
life on count 1, the consecutive term of two years on count 2, plus a consecutive three
years for each of the two great bodily injury enhancements. The court imposed a
concurrent term of six months on count 4, and stayed the sentence and enhancements on
count 3.
On appeal, defendant contends that: 1) the trial court erred in denying his motion
in limine to suppress statements he made to a police officer at the scene of the accident;
and 2) his Sixth Amendment right to a jury trial, as defined in Blakely v. Washington
(2004) 542 U.S. 296 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi),
and Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856]
1 All further statutory references will be to the Penal Code, unless otherwise
noted.
3
(Cunningham), was violated when the trial court imposed consecutive sentences. We
disagree and affirm.
FACTUAL BACKGROUND
At around 2:00 a.m. on July 21, 2005, Christian Esquivel was driving his mother’s
car with two passengers, in Corona. He stopped at a flashing red light at the intersection
of Sixth Street and Smith, looked to his left, and saw a red car coming. He could not
determine its speed. Esquivel proceeded into the intersection. The red car, which had
been spotted by police officers speeding just moments before, did not slow down or stop.
Officer Robert Paul, who had responded to a call for assistance regarding the speeding
car, drove to the intersection of Sixth and Smith in time to observe a collision between
the red car and Esquivel’s car. Officer Paul estimated that the red car was going
approximately 100 miles per hour. Esquivel’s car spun around, stopped at the curb, and
immediately caught on fire. One of Esquivel’s passengers was ejected from the car and
died as a result of blunt force head trauma. Esquivel and the other passenger were pulled
out of and away from the burning car and were hospitalized for several days.
After hearing about the collision, Officer Jason Morris drove to the scene of the
accident. He saw other officers tending to the burning car at the intersection of Sixth and
Smith so he drove further west on Sixth Street, where he saw the red car, which was
turned over on its roof.2 He approached the car and noticed one male occupant in it—
defendant. As Officer Morris dragged defendant out of the car, defendant cried out in
2 The record refers to the red car as burgundy and maroon, as well.
4
pain. A large can of beer fell out of the car with him. Officer Morris dragged defendant
10 to 15 feet away from the car and waited with him for paramedics to arrive. At that
point in time, he did not arrest defendant or handcuff him because he had no reason to do
so. While Officer Morris was waiting with defendant, he asked him some questions
about the collision and tape recorded the conversation with a digital tape recorder.3
Officer Morris asked defendant, “What happened, dude?” Defendant said he went
through a stop sign. Officer Morris asked him if he had been drinking, and then asked
how much he had been drinking. Defendant replied, “Not enough.” Officer Morris
asked him a few other brief questions, including where he was in pain, which way he was
driving, what and where he was drinking, if he was wearing his seatbelt, and how fast he
was going. When the paramedics arrived, they placed defendant in an ambulance and
drove him to the hospital, unaccompanied by any police officer. Officer Morris drove to
the hospital in his police car.
Police Investigator Bryan Wilson, a traffic investigator and accident
reconstructionist, arrived at the scene of the collision at 2:30 a.m. From his investigation,
he concluded that defendant was driving between 93 and 113 miles per hour, while
Esquivel was driving between 16 and 21 miles per hour.
Investigator Wilson interviewed defendant at the hospital at 9:30 a.m., later that
morning. Defendant told Investigator Wilson that he had previously been arrested for
3 The jury was given a transcript of the recording, and the recording was played
for the jury.
5
driving under the influence (DUI) twice, once causing a collision. He told Investigator
Wilson that his license was currently suspended because he was supposed to have an
ignition interlock device4 installed in his car, but he never did. His license had been
suspended for the past 12 years. He also stated that he completed a DUI program 15
years ago, but failed to complete the program the second time. Defendant admitted that
the current collision was his fault. He said he was speeding down the street to catch the
green lights. In addition, he told Investigator Wilson that he was taking Prozac and
Trazodone. Investigator Wilson subsequently obtained defendant’s prescription bottles
from his mother. Both bottles contained warning labels stating that the drugs could cause
drowsiness, which could be intensified by alcohol.
A blood sample was taken from defendant at 3:05 a.m., and his blood alcohol level
was .19. The test also revealed Prozac and Trazodone in his blood.
ANALYSIS
I. The Trial Court Properly Denied Defendant’s Motion in Limine to Suppress His
Statements to Officer Morris
Defendant argues that the evidence of his statements to Officer Morris at the scene
of the collision was improperly admitted in violation of his rights under Miranda.5 The
issue is whether defendant was “‘taken into custody or otherwise deprived of his freedom
of action in any significant way.’ [Citation.]” (People v. Forster (1994) 29 Cal.App.4th
4 Defendant referred to it as a “breath machine.”
5 Miranda v. Arizona (1966) 384 U.S. 436.
6
1746, 1753 (Forster).) We conclude that he was not; therefore, the Miranda safeguards
did not apply.
A. Procedural Background
A preliminary hearing was held on December 2, 2005. Officer Morris, whose
subsequent trial testimony is presented above in the statement of facts, testified at the
preliminary hearing that he asked defendant questions about what happened after the
collision. When the prosecutor asked Officer Morris what defendant told him, defendant
objected, based on Miranda. After initially overruling the objection, the court sustained
it. A lengthy discussion then ensued about whether defendant was free to leave and if
Miranda applied. During the discussion, the court asked Officer Morris if he would have
allowed defendant to walk away while he was questioning him. Officer Morris replied,
“Absolutely not, sir, because I have a duty to investigate the traffic accident.” The
prosecutor requested the court to admit the evidence of defendant’s statements to Officer
Morris, subject to a motion to strike at the end of the hearing. The court agreed to do so.
It then continued the preliminary hearing to December 16, 2005.
At the continued preliminary hearing, Officer Morris testified that defendant was
not in custody at the time he was asking questions about the collision. Officer Morris
asked defendant how fast he was going, and if he had had any alcohol to drink. In
response to the latter question, defendant said, “‘Not enough.’” At that point, Officer
Morris said he ceased questioning defendant, and the paramedics took defendant to the
hospital.
7
At the close of evidence at the preliminary hearing, the court asked the parties to
address defendant’s Miranda objection to Officer Morris’s testimony regarding
defendant’s statements made at the scene of the collision and at the hospital. The court
then denied defendant’s request to suppress the statements, citing Berkemer v. McCarty
(1984) 468 U.S. 420 (Berkemer) and other cases.
Subsequently, defendant filed a motion in limine to suppress his statements made
to Officer Morris at the scene of the collision. He claimed that he was in custody and
should have been given Miranda warnings before being questioned, considering the
circumstances that: 1) he caused a major traffic accident and the police were on the
scene; 2) Officer Morris testified at the preliminary hearing that he was not allowed to
leave, pending investigation of the collision; and 3) Officer Morris knew that defendant
was not going to get up and leave, given his injuries. The court concluded that the
interview that occurred at the scene of the collision did not constitute a custodial
interrogation, within the meaning of Miranda. The court specifically noted that the
contact between Officer Morris and defendant was relatively brief, and that the officer
simply presented “an open-ended question, ‘What happened?’ and a few follow-up
questions.”
B. Standard of Review
On appeal, “[w]e apply a deferential substantial evidence standard to the trial
court’s factual findings, but independently determine whether the interrogation was
custodial. [Citation.]” (People v. Pilster (2006) 138 Cal.App.4th 1395, 1403 (Pilster).)
8
C. Defendant Was Not in Custody
“It is settled that the safeguards prescribed by Miranda become applicable as soon
as a suspect’s freedom of action is curtailed to a ‘degree associated with formal arrest.’
[Citation.]” (Berkemer, supra, 468 U.S. at p. 440.) “Custody determinations are resolved
by an objective standard: Would a reasonable person interpret the restraints used by the
police as tantamount to a formal arrest? [Citations.] The totality of the circumstances
surrounding an incident must be considered as a whole. [Citation.]” (Pilster, supra, 138
Cal.App.4th at p. 1403, fn. omitted.) Objective indicia of custody for Miranda purposes
include: “(1) whether the suspect has been formally arrested; (2) absent formal arrest, the
length of the detention; (3) the location; (4) the ratio of officers to suspects; and (5) the
demeanor of the officer, including the nature of the questioning.” (Forster, supra, 29
Cal.App.4th at p. 1753.)
In Berkemer, the United States Supreme Court concluded that an officer’s roadside
questioning of a motorist detained pursuant to a routine traffic stop did not constitute
custodial interrogation for Miranda purposes. (Berkemer, supra, 468 U.S. at pp. 435-
440.) The Court noted that the “detention of a motorist pursuant to a traffic stop is
presumptively temporary and brief.” (Id. at p. 437.) The court then contrasted a
stationhouse interrogation, “which frequently is prolonged, and in which the detainee
often is aware that questioning will continue until he provides his interrogators the
answers they seek.” (Id. at pp. 437-438.)
Here, defendant has failed to demonstrate that he was subjected to restraints
comparable to those associated with a formal arrest. When Officer Morris questioned
9
defendant, he had not been formally arrested. The length of the questioning was very
brief, as noted by the court. Defendant was questioned at the scene of the collision, not a
police station. This public atmosphere, in which passersby could view the interaction,
was “substantially less ‘police dominated’ than that surrounding the kinds of
interrogation at issue in Miranda itself . . . .” (Berkemer, supra, 468 U.S. at pp. 438-
439.) Officer Morris was the only officer questioning defendant, and the questions were
open-ended, non-accusatory, and investigative. The officer simply asked questions to aid
his investigation of the collision. (i.e., What happened? Were you drinking? How fast
were you going? Were you wearing a seatbelt?) Even after questioning defendant,
Officer Morris did not place him under arrest. He waited with him for the paramedics to
arrive. Defendant then went to the hospital in the ambulance, unaccompanied by any
police officer.
Although Officer Morris told the court he would not have allowed defendant to
walk away while he was questioning him because he had a duty to investigate the
accident, his intention was not communicated to defendant. “A policeman’s
unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a
particular time; the only relevant inquiry is how a reasonable man in the suspect’s
position would have understood his situation.” (Berkemer, supra, 468 U.S. at pp. 442, fn.
omitted.)
Considering the totality of the circumstances surrounding the questioning of
defendant, we conclude he was not in custody and was thus not entitled to Miranda
warnings.
10
D. Any Error Was Harmless
Defendant argues that the court’s admission of his comment, “Not enough” (his
response when Officer Morris asked him how much he had to drink), was prejudicial
error, since the prosecutor allegedly used that statement to prove implied malice. Any
error in admitting that statement was harmless beyond a reasonable doubt. (People v.
Peracchi (2001) 86 Cal.App.4th 353, 363.)
Defendant correctly points out that the prosecution used defendant’s statement,
“Not enough,” in his closing argument. The prosecutor argued that, after defendant had
been drinking for four hours, his attitude was that he had not had enough, and that remark
said a lot about his disregard for the lives and safety of others. However, there was an
abundance of other evidence that showed defendant’s conscious disregard for life.
Defendant admitted during his interview with Investigator Wilson that he had two
previous arrests for driving under the influence—one of which involved a collision.
Defendant was required to, and did, complete a DUI program, as a result. This fact alone
showed that defendant had knowledge of the dangers of driving under the influence. He
also admitted that he failed to complete the DUI program the second time he was
supposed to take it. At the time of the current collision, defendant was driving with a
license that had been suspended for 12 years. He admitted that he was supposed to install
an ignition interlock device, but never did. Moreover, defendant took Prozac and
Trazodone that day, and, despite the warnings against mixing drugs with alcohol, he
consumed so much alcohol that his blood alcohol level was .19 percent. He then drove
his car between 93 and 113 miles per hour. In light of this evidence, which clearly
11
displays defendant’s implied malice, any error in admitting his statement was harmless
beyond a reasonable doubt.
II. The Trial Court Properly Imposed Consecutive Sentences
Defendant claims that the trial court’s imposition of the sentence in count 1
consecutive to the sentence in count 2, based on facts that were not found true beyond a
reasonable doubt by the jury violated his constitutional rights to a jury trial and due
process, under Blakely, supra, 542 U.S. 296, and Apprendi, supra, 530 U.S. 466. He
argues that applying Blakely and Apprendi to consecutive sentencing is consistent with
the reasoning of Cunningham, supra. We disagree.
Cunningham did not address the constitutionality of California’s Determinate
Sentencing Law (DSL) pertaining to a trial court’s decision to impose concurrent or
consecutive sentences. It thus did not overrule the California Supreme Court’s decision
in People v. Black (2005) 35 Cal.4th 1238 (Black) (overruled on other grounds in
Cunningham, supra) that “Blakely’s underlying rationale is inapplicable to a trial court’s
decision whether to require that sentences on two or more offenses be served
consecutively or concurrently.” (Id. at p. 1262.) We are bound by Black’s holding that
the reason(s) for imposing a consecutive term need not be determined by the jury.
(Black, supra, at pp. 1263-1264; see Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal. 2d 450, 455-456.)
DISPOSITION
The judgment is affirmed.
12
/s/ HOLLENHORST
Acting P.J.
We concur:
/s/ McKINSTER
J.
/s/ RICHLI
J.

TV star faces possible 8 years prison for California DUI Death

California DUI criminal defense attorney news

TV Star DUI Hit and Run


LOS ANGELES California DUI

More than 3,000 signatures were delivered this morning, in hopes of convincing a Beverly Hills judge to impose a severe sentence on actor Lane Garrison for the death of a teenager in a drunk driving crash.

Garrison, who starred in the TV Series "Prison Break," had twice the legal limit for alcohol when he crashed his S-U-V into a tree last December, killing a passenger, 17-year-old Vaughn Setian. Family spokesman James Lee says they want Garrison to get the maximum of 7 or 8 years in prison.

Garrison faces sentencing tomorrow. He pleaded guilty to two felonies: vehicular manslaughter without gross negligence and driving under the influence causing injury. He also pleaded guilty to providing alcohol to a minor, a misdemeanor.

San Diego California DUI - Drugs Vicodin case

San Diego California DUI criminal defense attorney - Drugs Vicodin case

Filed 10/29/07 P. v. Johnson CA3


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

DANNY LEE JOHNSON,

Defendant and Appellant.
C052142
(Super. Ct. No. P03CRF0726)


Defendant was convicted after a jury trial of driving under the influence of drugs causing injury (Veh. Code, § 23153, subd. (a)). The jury further found defendant had caused great bodily injury to the victim (Pen. Code, § 12022.7, subd. (b)). Defendant admitted he had a prior conviction for driving under the influence of drugs (Veh. Code, § 23540).

The trial court sentenced defendant to the upper term of three years in state prison and five years for the great bodily injury enhancement, for a total of eight years in state prison.

Defendant appeals. He contends his right to due process and his privilege against self-incrimination were violated when the trial court permitted the prosecutor to impeach him with his prior testimony on cross-examination. He also contends his upper-term sentence violates the principles of Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413] (Blakely). We affirm.

BACKGROUND

At approximately 3:00 p.m. on October 29, 2003, defendant was driving his truck westbound on Highway 193 toward Georgetown. This portion of the highway is curvy, has one lane going in each direction, and has no center divider.

Ariana Carlson1 was driving in her car directly in front of defendant. She was driving approximately 45 to 55 miles per hour. Ariana saw defendant’s truck come up behind her “pretty quick,” and it slowed only when it was a half car length behind her. Defendant continued to tailgate her for several minutes, so Ariana looked for a place to pull over. Afraid to slow down too much for fear defendant would hit her, she pulled off the road at a turnout without braking. After her car was completely on the gravel, she braked hard. She had not signaled that she was going to pull over because her turn signal was broken.

Defendant, however, did not wait for Ariana’s car to pull entirely off the road. Instead, defendant crossed over the center line as he passed Ariana’s car. Larry Jennings, who was traveling the opposite direction, was able to swerve and avoid colliding with defendant’s truck. Nancy Carlson, however, who was traveling behind Jennings in her convertible, was struck by defendant’s truck and sent off the road and into a ravine.

Jennings said that after the accident, defendant appeared disoriented but uninjured. Ariana described defendant as not “all there” mentally. Defendant was taken to a medical center by ambulance. He had lacerations on his face, arms and legs. California Highway Patrol Officer Chris Lane spoke to defendant at the medical center at approximately 6:20 p.m. Defendant had red, watery eyes, was sleepy and lethargic, and his speech was slurred and garbled.

Defendant was released from the medical center after his evaluation by hospital staff, without being admitted. At this time, defendant told Lane he had taken two Valium pills around noon and had eaten half of a sandwich about an hour before that. Defendant also said he was not under the care of a doctor.

Lane had defendant perform several field sobriety tests, after which Lane opined defendant was under the influence of a depressant and unable to safely operate a vehicle. He arrested defendant and had the medical center staff draw a blood sample.

The blood sample was drawn at 6:45 p.m. Results indicated therapeutic levels of substances found in Valium and Vicodin. Forensic scientist, Timothy Appel, opined that based on Lane’s observations, defendant’s symptoms, the field sobriety tests and defendant’s driving, that defendant was under the influence of Valium or Vicodin at the time of the collision. Appel also stated the peak plasma level of Valium and Vicodin is two to three hours and noted that the amount of drugs in defendant’s system would have been higher at the time of the collision.

Defendant testified that he took Vicodin five minutes before the accident. He does not know why he told Lane he took two Valium at noon. Further details regarding defendant’s testimony are set forth in the discussion.

Dr. Alan Wu, a professor of laboratory medicine, was called to testify by defendant. Wu testified the peak absorption time of Valium and Vicodin is approximately an hour and a half and can be affected by the contents of the stomach. Wu opined that one’s ability to drive a motor vehicle would not be impaired within 15 minutes of taking Vicodin.

Nancy suffered extremely severe injuries as a result of the collision and remains physically disabled and cognitively impaired.

DISCUSSION

I

Defendant contends he was improperly impeached on cross-examination with prior statements that he had been warned about the dangers of driving while taking Vicodin. He contends the trial court prejudicially erred when it allowed the prosecutor to use his prior statements because it exceeded the scope of direct examination. He further argues that, to the extent his trial counsel did not lodge a timely objection, he received ineffective assistance of counsel. We reject his claims.

Defendant testified very briefly on direct examination. He admitted he took Vicodin less than five minutes before the collision. He vaguely recalled speaking to an officer at the hospital. At the time, he was confused, tired, and in pain. His entire body hurt, including his head, leg, and arms. He did not have a clear recollection of what had happened.

On cross-examination, the prosecutor asked defendant where he had obtained the Vicodin. Defendant responded that he had a prescription from Dr. Sue. The prosecutor then asked, “Dr. Sue warned you about driving and taking Vicodin, right?” Defendant answered, “No, he did not.” Defendant admitted, however, that he knew there was a danger.

The prosecutor sought a bench conference to request he be allowed to use defendant’s prior sworn testimony from his previous trial wherein he was charged with driving under the influence of Soma and Vicodin. Specifically, the prosecutor requested he be permitted to impeach defendant’s statement that he was not warned about the danger of driving and taking Vicodin because he had previously testified that both Dr. Sue and the pharmacist had so warned him.

Defense counsel objected, arguing the prior statements were “so prejudicial I think that it goes beyond the scope of direct [examination].” Defense counsel further argued that the prior statements were irrelevant, arguing: “Whether or not he was warned has nothing to do with whether or not he took the drug and whether or not the levels in his system has to do with impairment or intoxication at the time of the accident.”

The trial court ruled that, although it would have entertained defendant’s objection to exceeding the scope of direct examination earlier, the objection was untimely because the jury had now heard testimony concerning whether Dr. Sue had warned defendant. The trial court then ruled the prior statements appeared to be inconsistent with his current testimony and the prosecutor would be permitted to cross-examine defendant with those statements.

Defendant contends the trial court erred and deprived him of his rights against compulsory self-incrimination and of due process by allowing the prosecutor to cross-examine him on a matter which exceeded the scope of direct examination. We agree with the trial court’s ruling that such objection was untimely.

By the time defendant objected to the scope of the cross-examination, whether the prosecutor’s question about Dr. Sue warning him had gone beyond the scope of direct was no longer appropriately before the court. Defendant had already testified in a manner inconsistent with prior statements. He had already stated that Dr. Sue had not warned him of the dangers of taking Vicodin and driving. The trial court did not err in ruling that defendant’s objection to the scope of the cross-examination into this subject area was untimely. (Evid. Code, § 3532 [objection must be timely made].)

Nor may defendant prevail based on ineffective assistance of counsel for any failure to lodge a timely objection to the scope of the cross-examination.

To establish ineffective assistance of counsel, defendant must demonstrate that his counsel’s performance was deficient and that defendant suffered prejudice as a result. (Strickland v. Washington (1984) 466 U.S. 668, 684-685, 687, 691-692 [80 L.Ed.2d 674, 691-692, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “[T]he mere failure to object rarely rises to a level implicating one’s constitutional right to effective legal counsel. [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 433.)

Here, even assuming for the sake of argument that counsel had timely objected to the scope of the cross-examination, defendant cannot establish the trial court would have excluded the evidence. (See People v. Lewis (2001) 26 Cal.4th 334, 359 [“Where ‘there was no sound legal basis for objection, counsel’s failure to object to the admission of the evidence cannot establish ineffective assistance’”].) Contrary to defendant’s representation on appeal, the trial court did not indicate it would have sustained such an objection had it been timely, the court simply stated it would have entertained it.

A defendant who testifies waives his Fifth Amendment privilege against self-incrimination to the extent of the scope of relevant cross-examination. (People v. Mayberry (1975) 15 Cal.3d 143, 160.) “When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them.” (People v. Cooper (1991) 53 Cal.3d 771, 822.) “[T]he scope of proper cross-examination may extend to the whole transaction of which the witness has testified, or it may be employed to elicit any matter which may tend to overcome, qualify or explain the testimony given by a witness on his direct examination.” (People v. Dotson (1956) 46 Cal.2d 891, 898.) Here, by testifying that he took Vicodin prior to the accident, defendant opened the scope of cross-examination to include all matters relevant to his having taken Vicodin prior to the accident. (See People v. Pike (1962) 58 Cal.2d 70, 90.) Thus, defendant cannot establish the trial court would have sustained a timely objection to the prosecutor’s question regarding whether Dr. Sue had warned defendant of the dangers of taking Vicodin and driving.

Furthermore, defendant has failed to show either deficient performance or prejudice, both of which he must demonstrate to establish he received ineffective assistance of counsel. Defendant never disputed his knowledge of the dangers of taking Vicodin and driving. Indeed, he argued both at trial and on appeal that the subject matter of the evidence was irrelevant for this very reason. Thus, there was nothing prejudicial about the subject area of the complained of testimony, which is likely why the prosecutor’s questioning reasonably drew no objection from defense counsel. We cannot say counsel’s performance fell below an objective standard of reasonableness under prevailing professional norms when he failed to object to the prosecutor’s question of whether defendant had been warned about the dangers.

Nor was defendant prejudiced by the prosecutor’s question of whether he had been warned about the dangers, since he was not disputing he had such knowledge. And it is at this point that defendant must establish prejudice, since he is claiming counsel was ineffective for not lodging a timely objection to this question at trial. Had defendant testified consistently with his prior statements, there would be no arguable prejudice at all.

Indeed, there was no arguable prejudice to defendant until he testified inconsistently with his prior statements--something we cannot determine from the appellate record that defense counsel knew he would do. But even if defense counsel could have known defendant would do so, and therefore, should have objected before defendant testified inconsistently, the impeachment evidence that was ultimately admitted had little prejudicial value. The trial court specifically limited the admitted evidence to the fact that defendant had made “sworn statements,” prior to trial, that he was warned of the dangers of taking Vicodin and driving by Dr. Sue and the pharmacist. The trial court did not allow the prosecutor to mention that the sworn statements were made in a prior trial or that defendant had been previously tried and/or convicted of driving under the influence of Soma and Vicodin.

Finally, defendant contends the trial court erred by not ruling the evidence of warnings to defendant of the dangers of taking Vicodin and driving was inadmissible pursuant to section 352. This claim is unavailing because he failed to object on this ground in the trial court. (§ 353 [timely and specific objection must be made in the trial court to preserve an evidentiary challenge for appellate review].)

Trial counsel’s statement, “I think this is so prejudicial I think that it goes beyond the scope of direct,” did not adequately raise a section 352 objection. Nor did his later argument that the evidence was irrelevant. (People v. Barnett (1998) 17 Cal.4th 1044, 1130 [objection based on relevancy is insufficient to preserve a section 352 objection for appellate review]; 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, §§ 375, 377-379, pp. 465-466, 468-471.)

In any event, the trial court did not rule on a section 352 objection. Thus, because counsel failed to obtain a ruling, any such objection was forfeited and not preserved for appeal. (People v. Hayes (1990) 52 Cal.3d 577, 618-619.)

II

In imposing the upper term sentence, the trial court found the following six factors in aggravation under rule 4.421 of the California Rules of Court: The crime involved great violence and great bodily injury; the victim was particularly vulnerable; defendant interfered with the judicial process by altering his story in a similar vein as dissuading a witness; defendant admitted to numerous violations of driving under the influence; and defendant was on probation for a prior driving under the influence conviction at the time of the current offense. The trial court found no factors in mitigation.

Defendant contends the trial court violated his right to a jury trial by imposing the upper term based on facts not admitted by him or found by a jury. We disagree.

Applying the Sixth and Fourteenth Amendments to the United States Constitution, the United States Supreme Court held in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the “statutory maximum” is the maximum sentence the trial court may impose based solely on the facts reflected in the jury verdict or admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303 [159 L.Ed.2d at p. 413].)

In Cunningham v. California (2007) 549 ___ U.S. ___ [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that under Blakely and other decisions, California’s determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments” to the extent the law allows a judge to impose an upper-term sentence “based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham, at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 on this point, vacated in Black v. California (2007) ___ U.S. ___ [167 L.Ed.2d 36].)

On remand from the United States Supreme Court, for reconsideration in light of Cunningham, the California Supreme Court recently held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (People v. Black (2007) 41 Cal.4th 799, 816 (Black II).) The “prior conviction” exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at p. 819.)

Here, defendant admitted to having sustained a prior conviction for driving under the influence of drugs. The probation report reflects defendant had sustained two additional convictions for driving under the influence.3 The trial court’s reliance on the fact that defendant admitted to numerous violations of driving under the influence could be considered to be a finding of numerous prior convictions--a factor not required to be found by a jury under Blakely.

Because this aggravating factor made defendant eligible for the upper term, the trial court did not violate defendant’s right to a jury trial in imposing the upper term. (Black II, supra, 41 Cal.4th 799, 816.)

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL , J.

BUTZ , J.



1 Ariana Carlson and the victim, Nancy Carlson, are not related but have the same surname. To avoid confusion, we shall use their first names. No disrespect is intended.



2 Undesignated statutory references are to the Evidence Code.



3 Defendant admitted in his statement to the probation officer that he had “like thirteen DUI’s” over the years, but not all had resulted in convictions. Defendant had also sustained three additional convictions for violations of other provisions of the Vehicle Code.

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California DUI Attorney

Checkpoint update - Northern California DUI Attorney news

California DUI criminal defense attorney news

SANTA ROSA: POLICE TO CONDUCT DUI AND LICENSE CHECKPOINT FRIDAY

10/25/07

In an effort to reduce the number of collisions resulting from driving coupled with alcohol or drug use, the Santa Rosa Police Department is conducting a California DUI - Drunk Driving and license checkpoint Friday night.

This California DUI checkpoint will be located on the east side of town and take place during the evening hours.

The police department is not releasing further information regarding the time and location prior to the California DUI checkpoints.

Santa Rosa police continue to encourage motorists to report anyone believed to be California DUI - under the influence of alcohol while driving.

DUI with great bodily injury in California case

California DUI lawyers case

Filed 10/23/07 P. v. Kilpatrick CA4/3


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

DOUGLAS KILPATRICK,

Defendant and Appellant.
G037563
(Super. Ct. No. 05HF1351)

O P I N I O N


Appeal from a judgment of the Superior Court of Orange County, Susanne S. Shaw, Judge. Affirmed.

Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, David Delgado-Rucci and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant was convicted of (1) driving under the influence of alcohol (DUI) and causing bodily injury, and (2) driving with a blood alcohol level of .08 percent or more and causing bodily injury. The jury also found he inflicted great bodily injury on the victim. While we agree with appellant that some of the jury instructions and verdict forms that were used in his trial were defective, we find no basis for reversal. We therefore affirm the judgment.

* * *

On the evening of April 12, 2005, Cynthia Hunter was driving on Pacific Coast Highway in Laguna Beach when she noticed appellant driving slightly ahead of her in the next lane. Appellant’s car drifted halfway into her lane, forcing Hunter to apply her brakes to avoid a collision. Appellant then drove completely into Hunter’s lane, forcing her to brake again.

Up ahead in that lane, another car was stopped at Table Rock Drive waiting for Amy Bainbridge and her friend to cross PCH at a marked crosswalk. Appellant swerved around that car and drove into the crosswalk without slowing down. His vehicle struck Bainbridge, causing her spinal injuries and partial paralysis.

Testing revealed that at the time of the collision, appellant’s blood alcohol level was between .096 and .10 percent. At trial, the defense admitted appellant was under the influence of alcohol at the time he plowed into Bainbridge. However, taking the stand in his own defense, appellant denied he violated any other traffic laws or otherwise drove in a negligent manner. He testified he was unaware of the crosswalk at Table Rock, and as he approached that intersection, he was forced to veer around the car that was stopped in front of him. At that point, it was too late for him to stop, and although he tried to steer around Bainbridge, he was unable to do so.

Appellant was charged in count 1 with DUI and causing bodily injury. (Veh. Code, § 23153, subd. (a).)1 In count 2, he was charged with driving with a blood alcohol level of .08 percent or more and causing bodily injury. (§ 23153, subd. (b).) With respect to both charges, the prosecution was required to prove not only that appellant drove while drinking in the manner alleged, but also that he concurrently committed an illegal act or neglected a legal duty in driving his vehicle and that such act or neglect proximately caused bodily injury to another. (§ 23153, subds. (a), (b).)

The prosecution alleged appellant was remiss in his driving in several respects, in that he: (1) drove too fast for the conditions (§ 22350); (2) failed to maintain a safe distance between vehicles (§ 21703); (3) failed to yield the right of way to a pedestrian in a crosswalk (§ 21950); (4) passed a vehicle that was stopped at a crosswalk (§ 21951); and (5) failed to use reasonable care in handling his vehicle.

The trial court instructed the jury that DUI and driving with a blood alcohol level of .08 percent or more were lesser included offenses of counts 1 and 2, respectively. (§ 23152, subds. (a), (b).) However, the verdict forms pertaining to these lesser offenses erroneously included the “causing bodily injury” element, an element that was only applicable to the greater offenses. Specifically, the verdict forms provided that appellant was guilty/not guilty of DUI “causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 1” and “driving with a blood alcohol .08% or more causing bodily injury[], a lesser offense necessarily included within the offense as charged in count 2.” (Italics added and capitalization omitted.)

In addition to the substantive counts, the prosecution also alleged appellant personally inflicted great bodily injury on Bainbridge. (Pen. Code, § 12022.7, subd. (a).) With respect to that allegation, the prosecution had requested the jury be instructed that “[g]reat bodily injury means significant or substantial physical injury . . . that is greater than minor or moderate . . . .” (See CALCRIM No. 3160.) However, through apparent inadvertence, the trial court did not give this instruction or provide any substantive instructions on the great bodily injury allegation.

During deliberations, the jury sent the court a note saying it needed “clarification as to which charge is the greater count 1, or count 2.” The court told them, “Anything with injuries is the greater. The lesser is just simply driving under the influence of alcohol, okay? And the greater is count 1, which is driving under the influence of alcohol; count 2 with causing injury. And count 2, I mean, I think it’s pretty obvious. The lesser is just driving under the influence.”

With that, the jury resumed its deliberations and found appellant guilty of the charged offenses. The jury also found appellant personally inflicted great bodily injury on Bainbridge during the commission counts 1 and 2. After appellant admitted a prior conviction for DUI, the court sentenced him to probation on the condition he serve a year in jail. This appeal followed.

I

Appellant contends the defective verdict forms on the lesser included offenses, coupled with the court’s “convoluted answer” to the jury’s note, left the jury with an impermissible “all-or-nothing choice on the matter,” meaning he was either guilty of the charged offenses or nothing at all. Appellant argues this eviscerated instruction on the lesser offenses and violated his constitutional rights to a fair trial and due process. The Attorney General disagrees, contending the defective verdict forms were not prejudicial considering the record as a whole. We agree with the Attorney General.

As a preliminary matter, the Attorney General contends appellant waived his right to challenge the verdict forms by failing to object to them in the trial court.

(See People v. Toro (1989) 47 Cal.3d 966, 976, fn. 6 [“An objection to jury verdict forms is generally deemed waived if not raised in the trial court”].) However, because appellant raises the specter of ineffective assistance of counsel, and there could be no satisfactory explanation for counsel’s failure to object to the defective verdict forms, we will consider appellant’s claim. (See People v. Pope (1979) 23 Cal.3d 412, 426.)

“A verdict is to be given a reasonable intendment” (People v. Radil (1977) 76 Cal.App.3d 702, 710) and should be construed in light of the issues presented, the court’s instructions and the arguments of counsel. (Ibid.; People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) The verdict “must be upheld when, if so construed, it expresses with reasonable certainty a finding supported by the evidence [citation].” (People v. Radil, supra, 76 Cal.App.3d at p. 710.)

The only disputed issue in this case was whether, in addition to drinking and driving, appellant drove in an illegal or negligent manner and thereby caused bodily injury to another. (§ 23153, subds. (a), (b).) The parties’ closing arguments were closely focused on this issue, and both sides emphasized the fact that causing bodily injury was a necessary component of the charged offenses. In addition, the court’s oral instructions properly explained that causing bodily injury was an element of the charged offenses, but not the lessers.

Having been so instructed and informed, the jury was understandably perplexed when the verdict forms on the lessers contained the causing bodily injury element. And when it sought clarification, the court’s response was by no means a model of clarity or completeness. But it did contain two accurate pieces of information, namely that “[a]nything with injuries is the greater,” and “simply driving under the influence of alcohol” is “the lesser.” Those both pointed the jury in the right direction, as had counsel and the court’s instructions.

This should have been done better. But the question before us is not whether the nail was driven with the skill we would expect of an expert carpenter, but whether it sufficed to hold the two boards together. We are satisfied it did. The argument of the attorneys, the formal instructions of the court, and the accurate if inartful description of the distinction between the greater and the lesser offenses provided by the court after the jury’s question make us confident the jury’s verdict was based on a correct understanding of the law.

It is also significant that the verdict forms for the charged offenses contained the “causing bodily injury” language. After the clerk of court read the verdict, the court asked the jurors if it represented their decision, i.e., did they find appellant caused bodily injury, as reflected in their verdict? Without exception, the jurors responded to this inquiry in the affirmative. They also found true the allegation that appellant inflicted great bodily injury during the commission of counts 1 and 2. Despite the lack of instruction on this allegation, an issue we discuss below, this finding shows the jury believed appellant caused bodily injury to the victim.

Considering the record as a whole, we are convinced the jury’s verdict expresses with reasonable certainty a finding of guilt on the charged offenses. We therefore uphold the verdict as to counts 1 and 2. (People v. Radil, supra, 76 Cal.App.3d at p. 710.)

II

Appellant also challenges the jury’s true finding on the great bodily injury enhancement. Specifically, he contends the finding must be reversed because the trial court did not offer any substantive instructions regarding the enhancement.

The Attorney General argues that, despite the court’s failure to instruct on the enhancement, no error occurred because the substance of the enhancement was conveyed to the jury in other instructions and the prosecutor’s closing argument. However, at no point did the court instruct the jury on the statutory definition of great bodily injury, to wit, “a significant or substantial physical injury.” (Pen. Code, § 12022.7, subd. (f).) And although the prosecutor alluded to this definition in his closing argument, this did not make up for the court’s instructional oversight: “While we have no trouble utilizing the argument of counsel to help clear up ambiguities in instructions given, there is no authority which permits us to use argument as a substitute for instructions that should have been given.” (People v. Miller (1996) 46 Cal.App.4th 412, 426, fn. 6.) Indeed, when, as here, the court fails to instruct on an enhancement that increases the penalty for the underlying crimes beyond the prescribed statutory maximum, such failure constitutes federal constitutional error. (People v. Sengpadychith (2001) 26 Cal.4th 316, 320, 326.)

Still, the error will be deemed harmless if it can be shown beyond a reasonable doubt that it did not contribute to the jury’s verdict. (People v. Sengpadychith, supra, 26 Cal.4th at pp. 320, 326.) The instruction omitted here would have told the jurors, “If you find the defendant guilty of the crimes charged in counts 1 and 2, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally inflicted great bodily injury on [Bainbridge] during the commission of that crime. Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. The People have the burden of proving each allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” (See CALCRIM No. 3160.)

Noticeably lacking from that instruction, because it need not be proved, is any element of causation or intent. If, as was the case here, the jury found the underlying crime had been committed, the only thing the instruction would have told them was to decide whether in committing the crime, the defendant inflicted an injury that was not “minor or moderate,” but rather “significant or substantial.” In this case, the evidence that appellant inflicted great bodily injury on Bainbridge was overwhelming and undisputed. Bainbridge’s treating physician testified that as a result of the collision, her third lumbar vertebrae in her lower back was “blown apart,” causing her paralysis and extensive nerve damage. She has had to undergo two reconstructive back surgeries, and her rehabilitation has been hampered by chronic pain. At the time of trial, she was able to walk but could not maintain one position for a long period of time, and her doctor described her as being “disabled.” There is simply no definition of the terms by which these injuries could be anything but “significant or substantial.”

The defense did not challenge this testimony or question the extent of Bainbridge’s injuries. Nor did it attempt to argue that her injuries were anything other than significant or substantial. Rather, defense counsel avoided any mention of the great bodily injury issue in her closing argument to the jury. Quite plainly, the record establishes great bodily injury as a matter of law with no contrary evidence or argument on the issue, and that weighs heavily in favor of a finding of harmless error. (See Neder v. United States (1999) 527 U.S. 1, 19 [failure to instruct on element of offense may be considered harmless beyond a reasonable doubt where the record is devoid of evidence that “could rationally lead to a contrary finding with respect to the omitted element”]; People v. Flood (1998) 18 Cal.4th 470, 504-507 [failure to instruct on element of offense may be considered harmless beyond a reasonable doubt if evidence of element is overwhelming, uncontradicted and the issue is effectively conceded by the defense].)

Moreover, the prosecutor informed the jury that great bodily injury means just what the Legislature says it does. He explained the term means “the injury is significant or substantial. It’s an injury that is greater than minor or moderate harm.” As noted above, this does not constitute a legally sufficient substitute for the court’s failure to instruct on the meaning of great bodily injury. However, the fact the prosecutor correctly defined this concept ensured the jury was aware of the proper legal standard for the enhancement allegation, which is a factor in the harmless error analysis. (See People v. Champion (1995) 9 Cal.4th 879, 949; People v. Visciotti (1992) 2 Cal.4th 1, 58-59; People v. Murtishaw (1989) 48 Cal.3d 1001, 1030.)

All things considered, we are convinced beyond a reasonable doubt the court’s failure to instruct on the great bodily injury enhancement allegation did not contribute to the jury’s verdict. There simply was no question the victim here suffered great bodily injury and the court’s instructional error could not have had any effect whatsoever. What issues there were in the case revolved not around the enhancement, but the substantive charges. If appellant was guilty of the charged felonies, there was no escape from the great bodily injury enhancement. We therefore uphold the jury’s true findings as to that allegation.

III

Lastly, appellant contends the court erred in denying his request to instruct the jury on the defense of accident or misfortune. (CALCRIM No. 3404.) He doesn’t claim his drinking and driving was an accident; rather, he argues he committed the alleged driving violations by sheer accident in that they were “the product of his being startled by the sudden braking action of the car ahead of him[.]”

The accident defense is based on the theory the defendant acted “without forming the mental state necessary to make his actions a crime. [Citation.]” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.) It suggests the defendant engaged in some accidental conduct by which the victim was injured. (See People v. Bohana (2000) 84 Cal.App.4th 360, 370-371.) In this case, it was no accident that appellant drove in the highly dangerous manner that led to Bainbridge’s injuries. Indeed, the evidence clearly indicates he did so of his own volition. Appellant may not have intended to hit Bainbridge — and in that sense the collision may be accurately described in colloquial terms as an “accident” — but the intent to injure is not an element of the crimes for which he was convicted. Rather, they simply require, in addition to drinking and driving, the commission of a driving violation that proximately causes injury to another. Since there is no evidence appellant accidentally violated the traffic laws at issue here, the accident defense did not apply and the trial court was not required to instruct on it.2

The judgment is affirmed.

BEDSWORTH, ACTING P. J.

WE CONCUR:

O’LEARY, J.

ARONSON, J.



1 Unless noted otherwise, all further statutory references are to the Vehicle Code.



2 We reject appellant’s claim the combined effect of the court’s errors requires reversal. The verdict miscue and the instructional error on the great bodily injury allegation do not, even when considered together, undermine our confidence in the verdict. No due process or fair trial violation has been shown.

Drunk Driving for teens not a good idea

Drunk Driving criminal lawyer news - California DUI attorney info

BAKERSFIELD California

Anti - drunk driving idea the most powerful program:

On Friday, hundreds of students at Centennial High School watched "A Life Interrupted."

When it comes to educating students about the consequences of drinking and driving, this program tells it like it is.

The shock treatment production is part of an on-going effort to help keep our streets safe.

"It was from someone behind them that had been drinking that had a very high level blood alcohol, and he ran into them about 70 miles an hour and never applied his brakes," said "A Life Interrupted" Founder Nancy Chaffin.

It was a head-turning display at CHS in northwest Bakersfield--The remains of a car that burst into flames from a drunk driving accident that took the lives of two local teens, all part of a no-nonsense program called "A Life Interrupted."

Organizers of this program have teamed up with Bakersfield Police and State Farm Insurance to urge local teens to stay safe.

"These are some of your newest drivers here today: the freshmen, sophomores," said Greg Sherlock, State Farm Insurance. "When they're 15-and-a-half, they have a provisional permit, and that means they're going to be on the roads."

Chaffin lost her son two years ago after he climbed into the car with a drunk driver.

Out of that tragedy came this program in hopes young teens who are driving can learn from her loss.

"It's his love that keeps me out here, and it's very important," said Chaffin.

BPD used pictures and 911 calls from the scene of DUI accidents involving teens to drive home the dangers of drinking and driving.

"Why would you do that? Why would you make that bad of a decision like that?" said 15-year-old Chelsea Mirelez. "Some people, they're not thinking. They're thinking, 'Oh, we're just going to go out for a few seconds. Nothing bad's going to happen.'"

Preferential DUI Treatment for Sheriff's Employee?

California DUI Lawyer - drunk driving attorney news

After conducting an FST evaluation of the driver's sobriety, an off-duty Sacramento County Sheriff's Department employee was not arrested, but was given a ride home by another sober driver.

The Roseville Police Department investigated a DUI (driving under the influence) case against the driver and forwarded the evidence it gathered to the Placer County District Attorney's Office for evaluation of possible charges.

The district attorney has filed charges of driving under the influence and driving under the influence with a blood alcohol level of .08 or greater against Sacramento County Sheriff's Sgt. Chris Guerrero, 41, with a scheduled arraignment date of Nov. 13.

The Roseville Police Department is conducting an internal affairs investigation in the incident and reviewing its policies related to handling of DUI stops. All of our employees are expected to carry out their jobs with integrity.

The department remains committed to fair and impartial law enforcement, including diligent enforcement of DUI laws for the protection of the community.

3 prior Vehicular Manslaughter - DUI 's not strikes

California DUI criminal defense attorney news

Filed 10/19/07 P. v. Kurek CA6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Appellant,

v.

BRYCE STEVEN KUREK,

Defendant and Respondent.
H030104
(Santa Cruz County

Super. Ct. No. F11216)


The People appeal from a judgment committing defendant Bryce Steven Kurek to state prison for four years on his conviction by no contest plea to driving under the influence of alcohol and/or drugs with four prior qualifying convictions. (Veh. Code, §§ 23152, subds. (a) & (b), 23550, 23550.5.) The People contend that the sentence is unlawful because the trial court erred in ruling that defendant’s three prior gross vehicular manslaughter while intoxicated convictions (Pen. Code, § 191.5)1 are not strikes (§ 667, subds. (b)–(i)). As we find that the People failed to carry their burden of proving that defendant’s prior convictions qualified as strikes, we will affirm the judgment.

BACKGROUND

At approximately 1:25 a.m. on March 30, 2005, a California Highway Patrol officer observed defendant driving a vehicle approximately 40 miles per hour in a 25-mile-per-hour zone on 7th Avenue in Santa Cruz. The officer instituted a traffic stop, and detected a strong odor of alcohol emitting from defendant’s vehicle through the open driver’s side window. The officer also noticed that defendant’s eyes were very red and that his speech was slurred. The officer administered field sobriety tests to defendant, determined that defendant was under the influence of alcohol, and placed defendant under arrest. Inside defendant’s left front pant’s pocket the officer found two boxes containing marijuana and a glass pipe. Defendant was transported to a hospital where a breath analyzer test was conducted. Defendant’s blood-alcohol content was approximately .11.2

Defendant was charged by information filed August 9, 2005, with two counts of driving under the influence of alcohol and/or drugs (Veh. Code, § 23152, subds. (a) & (b); counts 1 & 2), and misdemeanor possession of marijuana while driving (Veh. Code, § 23222, subd. (b); count 3). The information further alleged that defendant had three prior convictions under section 191.5, and one prior conviction under Vehicle Code section 23153, subdivisions (a) and (b) (Veh. Code, §§ 23550, 23550.5); that these four prior convictions constituted strikes (§ 667, subds. (b)–(i)); and that defendant had served a prior prison term (§ 667.5, subd. (b)).

On January 10, 2006, defendant entered a negotiated no contest plea to the new charges and admitted three prior felony convictions for gross vehicular manslaughter while intoxicated, one prior felony conviction for driving under the influence causing injury or death, and the prior prison term allegation. Conditions of the plea were that the court was to determine whether the prior convictions constituted strikes and that, regardless of the court’s determination, the prosecutor would move to strike all but one of the alleged prior convictions. After accepting defendant’s plea, the court proceeded with the trial on the priors.

The only evidence the People submitted in support of the allegation that defendant’s four prior convictions constituted strikes was exhibit 1. The exhibit comprises four documents: (1) An abstract of judgment dated November 6, 1997, indicating that defendant was sentenced to eight years in state prison for his conviction by plea to three counts of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)), two counts of which had one-year enhancements for causing death or bodily injury to more than one victim (former Veh. Code, § 23182), and two counts of driving under the influence causing bodily injury (Veh. Code, § 23153, subds. (a) & (b)). (2) A minute order for March 3, 1998, indicating that the court denied a motion to recall the sentence under section 1170, subdivision (d). (3) A minute order for the November 6, 1997 sentencing hearing. (4) A minute order for August 21, 1997, indicating that defendant was charged by grand jury indictment with three felony counts of violating section 191.5 (counts 1 – 3), a felony count of violating Vehicle Code section 23153, subdivision (a) (count 4), and a felony count of violating Vehicle Code section 23153, subdivision (b) (count 5); that defendant pleaded guilty as charged to counts 1 through 5, and admitted all allegations; and that it was an “open plea.”

The prosecutor argued that the documents, together with defendant’s admissions to the charged priors, proved that defendant’s prior convictions constituted serious felonies and therefore strikes. “Penal Code section 1192.7 [subdivision] (c)[](8) . . . describes as a serious felony prior any felony wherein the defendant inflicts great bodily injury, that is a strike prior, because it’s a serious felony prior. [¶] Similarly pursuant to Penal Code section 1192.7[, subdivision] (c)[](23), a serious felony prior is defined as any felony wherein the defendant personally used a deadly weapon and the case law is very clear that cars are, in fact, a deadly weapon. [¶] . . . So based on those two sections of the Penal Code, in fact, these priors do constitute serious felony priors, and therefore strike priors.”

Defendant argued that a “violation of [Penal] Code section 191.5 is not a strike unless [he] personally inflicted great bodily injury on a non-accomplice. The proof provided in the documents before the Court are solely, completely and totally lacking on any facts upon which the Court could make a finding of personal infliction of great bodily injury on a non-accomplice.” “Your Honor, this is the trial of the facts, and the fact is that [the prosecutor] hasn’t presented anything – any facts from which the Court could make – could even speculate as to whether or not there was proved personal infliction of great bodily injury on a non accomplice.” “There are no facts before this Court wherein you can make a decision that the decedents in this case were accomplices or not. There are no facts. [¶] And [section] 191.5 standing alone is not a strike, and that is all the Court has before it right now.”

On January 12, 2006, the court found that defendant’s prior convictions did not constitute strikes. “In following the law, the Court finds the People have failed to meet the burden of proof regarding the strikes.”

The prosecutor advised the court that she was prepared to retry the prior allegations later that day. The court asked, “Hypothetically, what would you submit as evidence.” The prosecutor responded that she would submit the same documents as before, and ask the court to take judicial notice of the probation report. The court stated it had reviewed the probation report in anticipation of the hearing, and defendant’s admissions to the probation officer as stated in the report seemed to indicate that some, if not all, of the victims in the case could be accomplices. “Mr. Kurek’s statement is that – one statement that is somewhat telling, ‘They were asking me to go faster,’ is the one I’m referring to. It doesn’t tell me who was asking him to go faster, but it seems multiple individuals.” “[T]hat statement seems to indicate that some of the victims were accomplices. [¶] So, if I were to go that route . . . I think I would still find that the victims were by law possibly accomplices. Again, the People would not have met their burden.”

On February 17, 2006, the People filed supplemental points and authorities requesting that the court reinstate the strike priors. The People contended that, as a matter of law, the deceased victims in the prior case could not be accomplices to their own vehicular manslaughter because they were not liable for prosecution for gross vehicular manslaughter resulting in their own death and their conduct did not result in the deaths of others. (See §§ 31, 1111.) The court denied the request on February 24, 2006. “Well, I’ve considered the case, and my decision to strike the strikes remains.”

On April 4, 2006, the court sentenced defendant to four years in state prison. The People filed a notice of appeal on April 17, 2006.

DISCUSSION

“An appeal may be taken by the people from any of the following: [¶] . . . [¶] (10) The imposition of an unlawful sentence, . . . As used in this paragraph, ‘unlawful sentence’ means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.” (§ 1238, subd. (a)(10).) “[T]he People may appeal from the judgment pursuant to section 1238, subdivision (a)(10) on the grounds that defendant’s sentence is unlawful because the trial court erred in ruling that [an] alleged prior conviction was not a strike.” (People v. Trujillo (2006) 40 Cal.4th 165, 169 (Trujillo).)

In this case, defendant admitted that he suffered felony convictions in 1997 for three counts of violating section 191.5, gross vehicular manslaughter while intoxicated, and one count of violating Vehicle Code section 23153, driving under the influence causing injury. He requested a court trial on the issue of whether these priors constituted serious or violent felonies, and therefore strikes. Neither gross vehicular manslaughter nor driving under the influence is listed as a serious felony under section 1192.7, subdivision (c), or as a violent felony under section 667.5, subdivision (c). However, the People contend on appeal, as they did below, that the gross vehicular manslaughter offenses are serious felonies under section 1192.7, subdivision (c)(8). Under that subdivision, an offense is a serious felony if the defendant “personally inflict[ed] great bodily injury on any person, other than an accomplice . . . .” (Ibid.)

This court has previously concluded “that by virtue of subdivision (c)(8) of Penal Code section 1192.7, . . . gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5) . . . will be a serious felony if in the commission of the crime the defendant personally inflicts great bodily injury on any person other than an accomplice. [Citation.]” (People v. Gonzales (1994) 29 Cal.App.4th 1684, 1694 (Gonzales).) “In Proposition 8 the electorate saw fit unambiguously to classify as a serious felony any felony in the commission of which the defendant inflicts great bodily injury on anyone other than an accomplice.” (Ibid.) The Legislature codified this holding in section 1192.8, subdivision (a), which states in pertinent part: “For purposes of subdivision (c) of Section 1192.7, ‘serious felony’ also means any violation of Section 191.5, . . . when [the] offense[] involve[s] the personal infliction of great bodily injury on any person other than an accomplice, . . .” (See § 1192.8, subd. (b).)

While gross vehicular manslaughter will often constitute a serious felony and thus a strike, this is not always the case. For instance, a passenger in a car could be convicted of gross vehicular manslaughter based on evidence that the passenger aided and abetted the driver in a speed contest that resulted in a death, and such a conviction would not constitute a strike because, as an aider and abettor, the passenger did not personally inflict great bodily injury on the victim. (§§ 1192.7, subd. (c)(8); 1192.8, subd. (a); cf. People v. Rodriguez (1998) 17 Cal.4th 253, 161-262; People v. Madison (1966) 242 Cal.App.2d 820, 827.) Thus, in order to constitute a prior serious felony and a strike, the prosecution had to prove beyond a reasonable doubt that the defendant was convicted under section 191.5 as the driver of the vehicle involved in the offense.

It is also the prosecution’s burden to prove beyond a reasonable doubt that the defendant personally inflicted great bodily injury on a person other than an accomplice. (People v. Tenner (1993) 6 Cal.4th 559, 566; People v. Henley (1999) 72 Cal.App.4th 555, 564.) Thus, the prosecution had to present evidence proving that defendant was the driver of the vehicle, that he personally inflicted great bodily injury on the victims, and that the victims were not accomplices. At the hearing on the priors in this case, the prosecution introduced the abstract of judgment and the minute order of defendant’s plea to prove that the priors defendant admitted were serious felonies.3 The only evidence the prosecution introduced identifying the actual conduct of defendant that led to the charges and plea was the fact that the documents indicated that defendant pleaded guilty to driving under the influence causing injury at the same time he pleaded guilty to three counts of gross vehicular manslaughter. The prosecution did not submit copies of the grand jury indictment, the transcript of the grand jury proceedings, or the transcript of the hearing during which defendant entered his change of plea. Accordingly, based on the scant evidence presented by the People, the trial court found that the People “failed to meet the burden of proof regarding the strikes,” and that “the victims were by law possibly accomplices.”

“[A] reviewing court will not alter, or hold unsupported, a [trier of fact’s] findings merely because it might reasonably draw an inference different from the one the [trier of fact] drew.” (People v. Williams (1970) 11 Cal.App.3d 1156, 1162.) “ ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)

The trial court found in part that the People failed to carry their burden of proving beyond a reasonable doubt that the victims of defendant’s gross vehicular manslaughter offense were not accomplices. “All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, and all persons . . . who, by threats, menaces, command, or coercion, compel another to commit any crime, are principals in any crime so committed.” (§ 31.) An accomplice is a person “who is liable to prosecution for the identical offense charged against the defendant . . . .” (§ 1111.) Therefore, a principal is someone who is liable for punishment for committing a crime, and an accomplice is someone who “could be charged as a principal.” (1 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Crimes, § 77, p. 123.) Accordingly, both the driver and a passenger in a vehicle could be liable for prosecution for gross vehicular manslaughter if the passenger aided and abetted that offense, or another offense committed by the driver of which the victim’s death was the natural and probable consequence. (See People v. Prettyman (1996) 14 Cal.4th 248, 260-262; People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5; People v. Beeman (1984) 35 Cal.3d 547, 560.)

We agree with the People that a deceased passenger who is the victim of a vehicular manslaughter cannot as a matter of law be an accomplice to his or her own death. The victim of a manslaughter offense is not “liable to prosecution”

(§ 1111) for manslaughter because it is not illegal to kill oneself. (Cf. In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 [suicide is not a crime]; see also People v. Antick (1975) 15 Cal.3d 79, 91.) Hence, as to each individual manslaughter offense, the victim of that offense could not have been an accomplice to the offense because he or she would not have been liable to prosecution for his or her own death. (But see People v. Flores (2005) 129 Cal.App.4th 174, 182 [discussing the accomplice exception in § 12022.53, subd. (d)].)

The People further argue that vehicular manslaughter is always a serious felony as a matter of law when the defendant is the driver and the victim is a single passenger in the vehicle, because the victim cannot as a matter of law be an accomplice to his or her own death. Thus, when there are multiple passengers and multiple deaths, all of the resulting vehicular manslaughter convictions must also be serious felonies in order to avoid an unintended absurdity in the law. Accordingly, the People’s argument continues, because the prosecution proved that defendant was the driver of the vehicle, the prosecution proved that defendant’s convictions under section 191.5 constitute serious felonies and strikes no matter who the victims were.

We reject the People’s argument because we disagree with the underlying assumption that the prosecution proved that defendant was the driver of the vehicle and that he personally inflicted great bodily injury. Just as a passenger in a car can be convicted of vehicular manslaughter as an aider and abettor, a passenger in a car can also be convicted of driving under the influence as an aider and abettor. (Cf. People v. Verlinde (2002) 100 Cal.App.4th 1146, 1160-1161; In re Queen T. (1993) 14 Cal.App.4th 1143, 1144-1145.) None of the documents submitted by the prosecution conclusively eliminated the possibility that defendant was convicted of driving under the influence and vehicular manslaughter as an aider and abettor. As a result, the documents submitted by the prosecution did not preclude the trial court from entertaining a reasonable doubt that defendant was the driver and that he personally inflicted great bodily injury on the vehicular manslaughter victims.

This is not to say that the evidence produced by the prosecution could not have supported an inference that defendant was the driver. However, it is for the trier of fact, here the trial court, to decide whether an inference has been established beyond a reasonable doubt. (People v. Small (1988) 205 Cal.App.3d 319, 325; People v. Autry (1995) 37 Cal.App.4th 351, 358.) As the record and reasonable inferences therefrom justify the trier of fact’s findings, reversal is not warranted. (People v. Bean, supra, 46 Cal.3d at pp. 932-933.) Here, the trial court could have concluded, and did conclude, that an inference that defendant was the driver and that he personally inflicted great bodily injury on any person other than an accomplice had not been established by the prosecution beyond a reasonable doubt when the prosecutor relied solely on an abstract of judgment, which showed nothing more than the bare convictions.

The prosecution bore the burden of proving its contention below that defendant had been the driver and that he personally inflicted great bodily injury on persons other than accomplices. The failure by defendant to submit evidence or argument that he was not the driver did not lessen the prosecution’s burden of proof or obligate the trial court to rule in the prosecution’s favor. In this case, the documents presented by the prosecution and properly considered by the trial court did not establish beyond a reasonable doubt that defendant was the driver of the vehicle and that he personally inflicted great bodily injury on any person other than an accomplice. Thus, the People failed to carry their burden of proving that defendant’s three prior gross vehicular manslaughter while intoxicated convictions qualified as strikes.

DISPOSITION

The judgment is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

duffy, J.



1 Further statutory references are to the Penal Code unless otherwise specified.



2 The facts underlying defendant’s conviction are taken from the probation report.



3 “[W]e conclude that a defendant’s statements, made after a defendant’s plea of guilty has been accepted, that appear in a probation report prepared after the guilty plea has been accepted are not part of the record of the prior conviction, because such statements do not ‘reflect[] the facts of the offense for which the defendant was convicted.’ [Citation.]” (Trujillo, supra, 40 Cal.4th at p. 179.) Accordingly, this court may not “consider the statement attributed to defendant in the probation officer’s report in determining whether defendant had suffered a prior conviction for a serious felony as defined in section 1192.7, subdivision (c)[(8)].” (Id. at p. 175.) In their supplemental brief, the People state that they “have not attempted to rely on the probation report to prove the strike nature of the prior convictions.”

Victim Restitution for California Drunk Driving

California DUI criminal defense lawyers news


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

RUTH MARIBEL HERNANDEZ,

Defendant and Appellant.
F051188
(Super. Ct. No. MF43167)

OPINION


THE COURT†

APPEAL from a judgment of the Superior Court of Merced County. Glenn Ritchey and Brian L. McCabe, Judges.‡

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

-ooOoo-

FACTS AND PROCEEDINGS

Appellant, Ruth Maribel Hernandez, waived her rights pursuant to Boykin/Tahl3 and admitted allegations in a criminal complaint that she drove a vehicle with a blood alcohol level of at least .08 percent, causing injury, and running a red light (Veh. Code, § 23153, subd. (b), count two), committed a felonious hit and run (Veh. Code, § 20001, count three), and drove a vehicle with a suspended license (Veh. Code, § 14601.2, subd. (a), count five).4 Count two further alleged that Hernandez had two prior driving while under the influence convictions within the prior seven years.

On June 1, 2006, the court carefully advised Hernandez of the consequences of her plea, including the maximum prison term she faced.5 The court completely advised Hernandez of her constitutional rights. The parties stipulated to, and the court found, a factual basis for the plea.6

At sentencing on August 7, 2006, the court denied probation and sentenced Hernandez to the midterm of three years on count two and a consecutive term of eight months on count three. The court awarded custody credits of 207 days. The defendant was ordered to pay a restitution fine of $600. (Pen. Code, § 1202.4, subd. (b).)7 Without objection, the court imposed direct victim restitution of $19,194.02. (§ 1202.4, subd. (f).)

Defense counsel filed a motion requesting the trial court to recall its sentence on August 10, 2006. Counsel contended there was no discussion or argument concerning whether Hernandez should receive the low term instead of the midterm. Counsel also contended there was no argument at the sentencing hearing concerning whether the two felony counts should have been made concurrent rather than consecutive. Counsel noted the trial court also made a comment that the two sides were far apart and there seemed to be no middle ground, such as a suspended sentence.

On September 6, 2006, the trial court heard the Hernandez’s request to recall the sentence. Defense counsel argued that this was Hernandez’s first felony conviction, she was not tried on probation before her last conviction, and her son had just died. Counsel argued Hernandez could be placed on 90-day observation and that even if sentenced to prison, she could be given a concurrent sentence. Counsel argued there were no aggravating factors. Counsel did not address the two restitution fines.

The court reviewed Hernandez’s arguments and the facts of the case, including her flight from the scene. The court noted that Hernandez told the probation officer she was innocent and denied driving the vehicle. The court found Hernandez was never promised probation and had failed to take responsibility for her conduct. The court found that each felony count involved separate criminal intent, justifying consecutive sentences. The court believed the factors in aggravation outweighed any mitigating factors, justifying an upper term on count two. The court noted that it was limited to the midterm under the terms of the plea agreement. As aggravating factors, the court found the crime involved great bodily harm, Hernandez’s prior convictions as an adult are numerous and of increasing seriousness, and her prior performance on probation was unsatisfactory. The court denied Hernandez’s request to recall her sentence.

Hernandez’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, raises no issues, and requests this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Hernandez was advised she could file her own brief with this court. By letter on May 15, 2007, we invited Hernandez to submit additional briefing. To date she has not done so.

DISCUSSION

We initially note that Hernandez failed to obtain a certificate of probable cause from the trial court’s initial pronouncement of judgment. We therefore cannot review any potential infirmities concerning the validity of the underlying no contest plea. (People v. Mendez (1999) 19 Cal.4th 1084; People v. Panizzon (1996) 13 Cal.4th 68.) We note, however, that there are no obvious errors in Hernandez’s change of plea hearing. Hernandez was fully advised of the consequences of her plea and her constitutional rights. She bargained for and received the lid on her sentence of three years eight months.8

Hernandez’s victim restitution fine was not subject to plea negotiations because the interested party, the victim, is neither the defendant nor the prosecutor. In contrast to plea negotiations over a restitution fine, “victim restitution is mandated by both the Constitution and section 1202.4, and a sentence imposed without such an award is invalid. [Citation.] Section 1202.4 requires ‘full restitution.’ An order providing less is similarly invalid. [Citation.]” (People v. Bernal (2002) 101 Cal.App.4th 155, 164-165.) Victim restitution is not a proper subject for plea bargains. (People v. Valdez (1994) 24 Cal.App.4th 1194, 1203.) “The terms of [a defendant’s] plea agreement do not circumscribe the mandatory duty of the trial court to order appellant to pay victim restitution. [Citation.]” (Ibid.) “The Legislature left no discretion or authority with the trial court or the prosecution to bargain away the victim’s constitutional and statutory right to restitution. As such, it cannot properly be the subject of plea negotiations.” (Ibid.) Furthermore, Hernandez did not raise the issue of the amount of direct victim restitution during her sentencing hearing or her hearing to request recall of her sentence.

According to the probation report, one victim suffered medical expenses of $7,416.70. The car insurance company paid the owner of the car $9,389.22 and the owner paid $1,388.10 in car rental fees. These sums total $18,194.02. The probation report set forth a total of $19,194.02, the amount awarded by the trial court. This appears to be computational error in both the probation report and the trial court’s award of direct victim restitution.

We notified the parties pursuant to Government Code section 68081 of this error and offered them an opportunity to submit briefs on this point. To date, they have not done so. We find there is a mathematical, or clerical, error in the amount of direct victim restitution that the amount of direct victim restitution should be reduced to $18,194.02.

DISPOSITION

We order the amount of direct victim restitution reduced to $18,194.02. On remand, the trial court shall amend the abstract of judgment reflecting this change and forward it to the appropriate authorities. The judgment is otherwise affirmed.



† Before Harris, Acting P.J., Levy, J., Gomes, J.



‡ Judge Ritchey presided over appellant’s change of plea hearing. Judge McCabe sentenced appellant and ruled on her request to recall her sentence.



3 Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.



4 Prior to entering her plea, Hernandez waived her right to a preliminary hearing.



5 Hernandez also executed a felony advisement, waiver of rights, and plea form (form). Hernandez agreed to a maximum sentence of three years eight months. Hernandez had a translator throughout the proceedings. At the end of the form, a translator declared that a true translation of the form was made in its entirety to the defendant in a language she understood.



6 The police report indicated that a witness named Alonso stated he was traveling northbound and stopped at a red light. Just as the light turned green, Alonso began to drive forward into the intersection when he saw Hernandez driving a Ford Tempo at high speed westbound. Hernandez failed to slow down for the red light and collided with a small blue vehicle. Two females staggered out of the blue vehicle. The females appeared to be stumbling and were dazed. Hernandez left the scene on foot, eventually running away. Hernandez was found by investigating officers and identified by Alonso. Hernandez did not have a valid driver’s license. Her blood alcohol level was tested at .16 percent. According to the probation report, one victim suffered medical expenses of $7,416.70. The car insurance company paid the owner of the car $9,389.22 and the owner paid $1,388.10 in car rental fees.



7 Unless otherwise noted, all further statutory references are to the Penal Code.



8 The trial court noted during the hearing on Hernandez’s request to recall her sentence that count two, running a red light while intoxicated, and count three, felonious hit and run, involved separate criminal objectives. Hernandez did not have to flee the scene in violation of Vehicle Code section 20001 to accomplish her violation of Vehicle Code section 23153, subdivision (b). Where a defendant commits multiple criminal acts with separate objectives and the acts are not merely incidental to each other, section 654 does not limit multiple punishment. (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

new San Diego Drunk Driving Attorney .net website

The San Diego County DUI Law Center Announces its New Web Site Launch, with a Sleek New Look and Comprehensive Resource Center for California and San Diego DUI Law

San Diego Criminal Defense Attorney Rick Mueller, sponsor of the San Diego DUI Lawyer Center, is pleased to provide a new center for DUI information at: http://www.SanDiegoDrunkDrivingAttorney.net .

San Diego, California (PRWEB) October 19, 2007

The new design for the California DUI Lawyer web site provides San Diego and California drivers access to many DUI resources, such as breath-test defenses, blood-test defenses, DUI expungement, local courts to attend, DMV information, out-of-state DUI, and many other DUI FAQs.

The California DUI web site also offers access to a San Diego County specialist who can offer support, addresses what to do if one receives a DUI while on military property, and also what to expect if one receives a DUI while boating. San Diego/California-specific penalties and useful tips are also obtainable.

Attorney Rick Mueller addresses important DUI news and industry trends in his California DUI Attorney Blog. This comprehensive discussion provides a portal for users to learn more about drunk-driving arrests, as well as submit their questions or concerns regarding DUI laws. Blog readers may also contact Rick Mueller through the web site's free DUI survey.

Rick Mueller is known as a "DMV Guru" and speaks in numerous seminars on the topic of San Diego DUI Law. Rick Mueller is recognized as a contributor to the California Drunk Driving Law book, and is a Specialist Member of the California DUI Attorneys Association.

Manslaughter DUI in California, Santa Barbara area

California DUI criminal defense lawyers news

The two women killed in Sunday’s alleged drunk driving accident in Montecito were identified as Sara Elizabeth Pezzimenti and Kelly Marie Ruiz.

According to a press release from the California Highway Patrol, the Santa Barbara Coroner’s Dept. confirmed yesterday morning that the families of both women were notified of their deaths. Pezzimenti, 21, was a resident of Palo Alto, and Ruiz, 26, was a resident of Santa Clara.

Beau Robertson, also of Palo Alto, was the driver of the Chevrolet Camaro that plunged off the San Ysidro overpass onto southbound Highway 101 at approximately 2:15 a.m. Sunday. The vehicle landed on its right side, where Pezzimenti and Ruiz were seated. Both women were pronounced dead at the scene.

At the time of the incident, authorities alleged that Robertson was California DUI - driving under the influence of alcohol. The cause of the crash was attributed to driving while intoxicated.

Robertson, 29, was transported to Santa Barbara Cottage Hospital after the crash with life-threatening injuries. According to the press release, Robertson remains in the intensive care unit but he is in stable condition and his injuries are no longer considered life threatening.

When Robertson is released from the hospital, he faces two felony counts for alleged driving under the influence and gross vehicular manslaughter.

Immediately after the Camaro landed on Highway 101, a Honda carrying a family of five hit the vehicle. At the time of the incident, the driver of the Honda, 33-year-old Marina De Alfaro Duarte of Ventura, was transported to Cottage Hospital with minor injuries. Her 11-year-old daughter, Yurithzy Alfaro, and 8-year-old nephew, Pilar Gomez, were also taken to the hospital for complaints of pain. Her 34-year-old husband, Enrique Alfaro, and 14-year-old son, Daniel Alfaro, suffered from minor cuts and were released to a relative at the scene.

There is a premier California DUI attorney in that area.

Get a License, Agree DUI can Kill

California DUI defense lawyer news

Gov. Arnold Schwarzenegger signed a bill requiring everyone who gets a drivers license to sign a statement acknowledging DUI - driving under the influence can kill.

If a person who signs the statement does choose to drive under the influence of alcohol or drugs ( DUI ) and consequently kills somebody, the bill would allow prosecutors to prove they acted maliciously and not just recklessly.

"It's very unlikely we could ever prove that anyone paid attention to it and really realized it was there, read and reflected on it, so it would be a very limited value," said Kern County District Attorney Ed Jagels.

Dismissal of DUI for failure to provide speedy trial in Riverside County

California DUI case dismissed

Court trial back-up forces dismissals

October 17, 2007

Caused largely by the refusal of Riverside County District Attorney to offer certain plea bargains made in other counties, a court dismissed a California DUI and eight felony cases because no judges were available.

The DA's office there has been under attack by California DUI criminal defense attorneys who maintain the DA's office is far harsher than other Counties, causing more cases to go to trial and backlogging the system.

In each case, the time limits guaranteeing defendants' rights to a speedy trial had expired. The presiding judge said prosecutors immediately refiled the felonies dismissed Monday and Tuesday, which included domestic violence, assault, gang, drug and fraud cases. The defendants were arraigned again. Prosecutors may refile expired felony cases only once, said Sue Steding, chief assistant district attorney.

The district attorney's office is considering whether to appeal Monday's dismissal of a misdemeanor DUI case and is awaiting a ruling on its appeal of two misdemeanor cases dismissed earlier this year because of time constraints.

Every week, they face dismissing cases. They have been lucky that the courts had avoided dismissing felonies until now.

Riverside's backlog of cases was the worst in the state. The felony dismissals, he said, are unusual, but not unprecedented in California and are always considered the last resort.

Other counties grappled with dismissals after the Legislature passed the three-strikes law, sending more and more complicated cases into the courts. As a result, the Judicial Council of California, which oversees the courts, sent a task force of judges around the state to help clear the cases.

They are worried that the dismissals would lead defendants to be less likely to plead guilty at early stages of their cases, hoping they would eventually be dismissed.

There are 1,265 criminal cases pending in the Riverside Hall of Justice, which includes some cases from Indio and Murrieta that are on the verge of dismissal.

As Riverside County's judicial system neared crisis earlier this year, they assembled a strike team of 27 judges who work part time, creating the equivalent of 12 full-time judges to help clear the oldest cases.

Some will leave in November, but as many as six may continue working in Riverside County. As of early October, the strike team had disposed of more than 60 cases.

A committee was set up headed by Justice Richard Huffman of the 4th District Court of Appeal to examine the court's procedures. One issue they are sorting through is whether more cases could be resolved through plea bargains.

Another major reason for the backup was the county's population explosion. Riverside County added just three new judges from 1989 through 2006, while the population grew 76%, according to the judicial council.

The county's judges had done everything they could to avoid the dismissals, including virtually shutting down civil trials. They have maximized their resources. Every available trial courtroom is filled. They have done everything but successfully convince the DA's office from being so unreasonable in California drunk driving cases.

Instead of becoming more like other countys' DA's offices, officials in the district attorney's office have urged the court to send expiring cases to judicial officers handling family law, probate and juvenile dependency matters.

The law was ambiguous on whether a criminal case should take precedence over family law matters, such as restraining orders.

Last year, Riverside County's judges handled 795 criminal trials, nearly twice the load they handled in 2002, Fields said.

That exceeded the number of trials heard in San Diego County, even though it has about 1 million more people and roughly twice as many judges, he said.

Riverside County's judges are on pace to handle about 950 criminal trials this year, not including those handled by the strike force.

Other than changing the DA's policies on making offers in California DUI and other cases, an expensive solution for the court's crush will be to add more judges. Riverside County has been one of the top beneficiaries of the 100 new judgeships the Legislature has created in the last two years.

Riverside allotted seven new judgeships to Riverside County last year, five of which have been filled, and an additional seven this year.

California DUI criminal defense attorneys simply suggest the DA's office look at how other DA's offices handle themselves in other counties in California.

Not all Painkillers Impair Driving

California DUI - Drugs Criminal Defense Lawyer news

Morphine Painkillers Won't Impair Driving

Moderate, long-term use of opioid pain medications such as morphine does not impair a person's driving ability, U.S. researchers report.

A team at Rush University Medical Center in Chicago compared two groups of people -- 51 long-term users of oral morphine and 49 who weren't taking any pain medication. All the participants spent about 12 minutes in a driving simulator that measured deviation from the center of the road, weaving, number of accidents, and reaction time to unexpected events.

The average amount of weaving for both groups was 3.83 feet, and the morphine group had 5.33 collisions, compared with 5.04 collisions for the control group. Average reaction time for the morphine group was 0.67 seconds, compared with 0.69 seconds for the control group.

The findings suggest that patients who require long-term pain medication may "become tolerant" to side effects that could potentially impair function, said researcher Dr. Asokumar Buvanendran, an associate professor in the anesthesiology department at Rush.

The study was expected to be presented Oct. 13 at the annual meeting of the American Society of Anesthesiologists, in San Francisco.

Opioid pain relievers carry warning labels urging patients not to drive or operate heavy machinery while taking the medications, and drivers under the influence of pain drugs are typically subject to the same laws and penalties as people who drink and drive.

According to Buvanendran, this study's findings suggest that patients on long-term pain medication may be able to live "like normal functioning people, without the stigma and limitations now associated with long-term pain medication use."

Ladies are getting more DUI charges

DUI Lawyers California Drunk Driving Attorneys - Criminal Defense Law news

The number of women convicted of DUI charges each year is on the rise. In 1975 only 8 percent of DUI cases prosecuted in the United States involved females. Last year, 160 thousand women were charged with DUI. While the real cause for this increase isn't known, there are several factors sociologists believe may be playing into the rise of female DUIs. The most obvious possible reason for the increase is simply more women are driving today than they were in 1975. Also, more women have careers today. With more women at work, comes more women at happy hour after work. And, with more women on the road and at the bar, their numbers were bound to start evening out with the men's. However, there are things women should be aware of to protect themselves from a potentially deadly and costly situation.

It's a common misconception drinking beer or wine is less intoxicating than drinking liquor. The serving size of the drink is really what is to blame. If all three types of alcohol are compared by their appropriate serving, the alcohol content would be very similar. A serving of wine is a 4-ounce glass, a serving of beer is an 8-ounce glass, and a serving of 80-proof liquor is 1.25 ounces. Anatomical differences between men and women cause alcohol to be processed differently depending on a person's gender. For example, alcohol tends to migrate to stored water in the body, and women tend to store more water. Also, body weight, amount of fat tissue, and stomach contents play a role in how much alcohol it takes to reach a certain blood alcohol concentration.

California Drunk Driving or DUI:

If you are pulled over and given a breathalyzer test, according to the Insurance Institute for Highway Safety, anything over a .08 blood alcohol concentration could mean getting a California DUI. A California DUI will lead to a hefty fine, a possible jail sentence, ignition interlock device, vehicle impound, public work service program, alcohol programs, and a lengthy license suspension.

If you choose to dispute the California drunk driving charges, you have a limited amount of time to request a hearing with the Department of Motor Vehicles. In California, for example, if you miss the 10 day deadline to request a hearing, you are not eligible for a hearing at all. If want to dispute the suspension and schedule a hearing, it's beneficial to seek a California DUI - DMV attorney.

$350,000 for Legal Fees for Lohan's 2 DUI cases?

California Drunk Driving Criminal Defense lawyers news


Los Angeles California

Lindsay Lohan has a reason for wanting to resume her acting career - her lifestyle has made a huge dent in her bank account. It's been allegedly reported the actress has blown $7 million just in the past year on living wild, shopping, California DUI bills, and other costly expences.

To recover from her party days, Lohan has also allegedly spent $137,000 on rehab treatment for her drug and alcohol problems and another $350,000 on just on legal fees stemming from her two driving under the influence (DUI) arrests earlier this year.

Felony for Gal with 4 prior DUI arrests

DUI attorneys news in California - from San Diego

With 4 DUI arrests in six months, how can Ms. Adamo still be able to get behind the wheel and, according to police, drive under the influence again last weekend?

La Mesa police have arrested the 26-year-old Ramona woman three times in the past three weeks on suspicion of driving under the influence – including Saturday in what records show was her fifth arrest under DUI laws. The California Highway Patrol arrested her May 26, and the county Sheriff's Department arrested her on suspicion of DUI on June 28.

On Sept. 27, La Mesa police arrested her, saying she was DUI - under the influence in her car at a dead stop on a busy street. Three days before Saturday's arrest, they arrested Adamo again after finding her passed out behind the wheel and blocking traffic.

She posted bail on past cases, none of which has been resolved or tried.

La Mesa police say Adamo was allgedly driving so impaired in the Grossmont shopping center parking lot about 2:20 p.m. Saturday that she pinned a 7-year-old boy against his mother's car. The boy's mother pounded on Adamo's 2000 Toyota Camry for her to stop before the car crushed the child. Police said Adamo stopped, and the boy was not seriously hurt. When Adamo tried to drive away, the mother said she blocked her until authorities arrived.

The difference between her four previous arrests and Saturday's is that, for the first time, Adamo faces felony San Diego DUI charges, authorities suggest. She remained in jail on $250,000 bail.

Adamo had no criminal record before her arrests, public records show. Her San Diego DUI criminal defense lawyer will be busy.

Police say Adamo had several prescription narcotics in her possession and showed signs of being under the influence of what they described as a “central nervous system depressant.” In each case, she was tested for drugs, the presence of which must be detected by laboratory technicians, and that can take weeks.

2nd Degree Murder if Subequent California DUI death

DUI Lawyers news from California

DUI Plea forms since 2005 have a similar message: If, as a result of you driving under the influence, a person is killed ... you could be sent to prison for the rest of your life.

Hernandez, 38, is one of two men Bakersfield police say were street racing Sunday when the SUV Hernandez was driving crashed into a car on Stockdale Highway killing Barbara Keyser Blair, 60, of Bakersfield, and critically injuring her husband, John Blair. Mrs. Blair was not wearing a seat belt, police said.

Hernandez was arrested on charges of felony vehicular manslaughter, felony drunken driving, child endangerment and driving with a suspended license, police said. His 2-year-old daughter, Ciara Hernandez, was with him and also was injured in the crash.

The other man, Ryan Weissrock, 22, was arrested on charges of felony vehicular manslaughter. He also faces hit-and-run charges, police said. Weissrock initially left the scene of the crash at Stockdale Highway and Fairway Drive, but returned later.

Police said they believe Hernandez in a Chevy Tahoe and Weissrock in a Mitsubishi were racing eastbound on Stockdale Highway when they ran a red light at Stockdale and Fairway Drive about 5:30 p.m. The Tahoe slammed into the Blairs' Mercedes sedan as Mr. Blair moved north through the intersection from Fairway.

The judge's warning, now standard in all DUI cases, came from Superior Court Judge Michael B. Lewis after Hernandez was convicted of drunken driving for the second time in three years. Hernandez was sentenced to one year in jail in that case.

Deputy District Attorney John Somers said he couldn't comment on the street racing case. But speaking in general terms, he said the admonition the judge gave Hernandez has been a standard requirement since 2005. It essentially gives notice to those convicted of drunken driving that they can be charged with second-degree murder if someone later dies as a result of their impaired driving in the future.

Under .08 California DUI

Under .08, no California DUI arrest?

http://www.stopimpaireddriving.org/tools-campaignheadquarters.htm

Zero Tolerance for California DUI probationers

Dui defense attorneys news

Beginning in 2009, New Years Day to be exact, drivers on probation for any DUI conviction face zero tolerance if they drive on California highways with a blood or breath alcohol concentration of .01% or higher. On October 14, 2007, the Governor of California signed a number of bills and there is one main one to learn now and advice your clients of appropriately.

New Vehicle Code §§23154 and 13389, and the amended 13353.1, have come to life per AB 1165 introduced by Assembly Member Maze (Coauthors: Assembly Members Sharon Runner and Spitzer) February 23, 2007.

These sections take effect on January 1, 2009 according to the Legislature' s enrolled document.

New Vehicle Code §23154 states:


23154. (a) It is unlawful for a person who is on probation for a
violation of Section 23152 or 23153 to operate a motor vehicle at any
time with a blood-alcohol concentration of 0.01 percent or greater,
as measured by a preliminary alcohol screening test or other chemical
test.
(b) A person may be found to be in violation of subdivision (a) if
the person was, at the time of driving, on probation for a violation
of Section 23152 or 23153, and the trier of fact finds that the
person had consumed an alcoholic beverage and was driving a vehicle
with a blood-alcohol concentration of 0.01 percent or greater, as
measured by a preliminary alcohol screening test or other chemical
test.
(c) (1) A person who is on probation for a violation of Section
23152 or 23153 who drives a motor vehicle is deemed to have given his
or her consent to a preliminary alcohol screening test or other
chemical test for the purpose of determining the presence of alcohol
in the person, if lawfully detained for an alleged violation of
subdivision (a).
(2) The testing shall be incidental to a lawful detention and
administered at the direction of a peace officer having reasonable
cause to believe the person is driving a motor vehicle in violation
of subdivision (a).
(3) The person shall be told that his or her failure to submit to,
or the failure to complete, a preliminary alcohol screening test or
other chemical test as requested will result in the suspension or
revocation of the person's privilege to operate a motor vehicle for a
period of one year to three years, as provided in Section 13353.1.

Note that at this time, there is no additional punishment defined in the statute so presumably only a probation violation will exist - other sanctions could also be introduced in the next session now that this has all passed though.

A refusal of the PAS by a person under 21 or in alleged violation of 23154 can also be punished administratively - under 21 by our current §13388 or in 2009 by the new Vehicle Code §13389 which states:


13389. (a) If a peace officer lawfully detains a person
previously convicted of Section 23152 or 23153 who is driving a motor
vehicle, while the person is on probation for a violation of Section
23152 or 23153, and the officer has reasonable cause to believe that
the person is in violation of Section 23154, the officer shall
request that the person take a preliminary alcohol screening test to
determine the presence of alcohol in the person, if a preliminary
alcohol screening test device is immediately available. If a
preliminary alcohol screening test device is not immediately
available, the officer may request the person to submit to chemical
testing of his or her blood, breath, or urine, conducted pursuant to
Section 23612.
(b) If the person refuses to take, or fails to complete, the
preliminary alcohol screening test or refuses to take or fails to
complete a chemical test if a preliminary alcohol device is not
immediately available, or if the person takes the preliminary alcohol
screening test and that test reveals a blood-alcohol concentration
of 0.01 percent or greater, the officer shall proceed as follows:
(1) The officer, acting on behalf of the department, shall serve
the person with a notice of an order of suspension of the person's
driving privilege.
(2) (A) The officer shall take possession of any driver's license
issued by this state that is held by the person. When the officer
takes possession of a valid driver's license, the officer shall
issue, on behalf of the department, a temporary driver's license.
(B) The temporary driver's license shall be an endorsement on the
notice of the order of suspension and shall be valid for 30 days from
the date of issuance, or until receipt of the order of suspension
from the department, whichever occurs first.
(3) (A) The officer shall immediately forward a copy of the
completed notice of order of suspension form, and any driver's
license taken into possession under paragraph (2), with the report
required by Section 13380, to the department.
(B) For the purposes of subparagraph (A), "immediately" means on
or before the end of the fifth ordinary business day after the notice
of order of suspension was served.
(c) For the purposes of this section, a preliminary alcohol
screening test device is an instrument designed and used to measure
the presence of alcohol in a person based on a breath sample.

The section doesn't discuss prior §23103 per 23103.5 convictions, only §§23152 or 23153.

Vehicle Code §13353.1 is amended by AB 1165 to assist the DMV in taking license for these above new codes:


13353.1. (a) If a person refuses an officer's request to submit
to, or fails to complete, a preliminary alcohol screening test
pursuant to Section 13388 or 13389, upon the receipt of the officer's
sworn statement, submitted pursuant to Section 13380, that the
officer had reasonable cause to believe the person had been driving a
motor vehicle in violation of Section 23136 or 23154, and that the
person had refused to submit to, or did not complete, the test after
being requested by the officer, the department shall do one of the
following:
(1) Suspend the person's privilege to operate a motor vehicle for
a period of one year.
(2) Revoke the person's privilege to operate a motor vehicle for a
period of two years if the refusal occurred within 10 years of
either of the following:
(A) A separate violation of subdivision (a) of Section 23136, that
resulted in a finding of a violation, or a separate violation, that
resulted in a conviction, of Section 23103, as specified in Section
23103.5, of Section 23140, 23152, or 23153, or of Section 191.5 or
subdivision (a) of Section 192.5 of the Penal Code.
(B) A suspension or revocation of the person's privilege to
operate a motor vehicle if that action was taken pursuant to this
section or Section 13353 or 13353.2 for an offense that occurred on a
separate occasion.

...

Other amendments to the Vehicle Code authorize a police officer to tow your client's vehicle for violation of §§23154 or 13389 as well as "double the fine zone" in some cases.

All DUI convicted probationers must now respect the required probation term of zero tolerance after January 1, 2009.

Run car into home? Arrested for California DUI

California attorney news - Sacramento DUI

SACRAMENTO California DUI

A man who police say was driving drunk, crashed his car into a home last night, narrowly missing a woman and her grandson.

The truck left a gaping hole in the side of this home at 43rd St. and 37th Ave.

Witnesses say that after the man crashed the truck, he allegedly tried to run, but didn't make it far before a family member of the home he hit reportedly tackled him to the ground.

The driver was arrested on suspicion of a California DUI - driving under the influence.

No one was injured in the crash.

DUI No-Seatbelt Death in San Diego California

Attorneys DUI San Diego California - Drunk Driving Lawyers news from San Diego

SAN DIEGO California DUI

A woman was killed Monday morning when the car she was riding in crashed through a fence and into a truck parked at an Interstate 5 viewpoint in Cardiff.

The driver of the car, Gina Maria Del Rio, 19, of El Monte was arrested on suspicion of a San Diego DUI - San Diego drunk driving and San Diego California manslaughter.

The accident occurred around 5:10 a.m. off southbound Interstate 5, north of the Manchester Avenue offramp. The car, a Chevrolet Malibu sedan, crashed through a chain-link fence that separates the viewpoint from the freeway lanes and into a truck with a husband and wife inside. The couple was unhurt.

Del Rio and a front-seat passenger in the car were both wearing seat belts and suffered minor injuries. A 19-year-old Whittier woman riding in back was not wearing a seat belt and was thrown from the rear of the car. She later died at a hospital.

San Diego DUI Officers arrested Del Rio and booked her into the Vista jail for DUI and manslaughter charges under California law.

California DUI Attorney

Manslaughter DUI charge after California rain accident

Lawyers Drunk Driving California - Attorneys DUI California - newsflash

California DUI

A Lakewood man was arrested Saturday on suspicion of a California DUI - driving under the influence after a car accident in a flood control left his passenger dead.

Fernando Alvarez, 32, was driving a 1992 Nissan Stanza northbound on Long Beach Boulevard on the east service road Saturday when for unknown reasons, he lost control of his car, acording to the Long Beach Police Department.

The Nissan allegedly went up on a curb and through a fence on the 4600 block of Long Beach Boulevard, fell 25 feet and landed upside down in a flood control, where the water level was about two to three feet deep.

Alvarez was allegedly able to escape the vehicle and was found near the scene when police arrived at 1:53 a.m.

His 35-year-old passenger was unable to get out of the car and was pronounced dead at the scene.

The victim's name is being withheld pending notification of the next of kin.

Alvarez was transported to a local hospital for a broken clavicle and minor scrapes and bruises.

He was allegedly found to be California DUI - under the influence of alcohol and was booked for vehicular manslaughter, California Drunk Driving - driving under the influence and driving without a valid driver's license.

Police believe the primary cause of the accident was that Alvarez was impaired, but the investigation continues.

Bloods Draw by Police Questioned

DUI Attorneys California - Drunk Driving California Lawyers news

DUI Defense Attorneys are putting new scrutiny on a practice that has become common among law enforcement — having officers, not medical personnel, draw blood with syringes in suspected drunken driving cases.
That comes after a man developed a persistent infection at the site of a blood draw administered by a Pima County sheriff's deputy. He has filed what is believed to be the first claim in Arizona against the practice, which could put local taxpayers on the hook for any damages.
Arizona law requires that drunken driving suspects submit to a test or lose their license for a year — and it's the officer's choice, not the driver's, whether to use a breath or a blood test.
Law enforcement agencies say having officers do blood draws themselves is quicker and more convenient than going to a hospital and more accurate than a breath test.
The Pima County Sheriff's Department has relied exclusively on deputy-administered blood draws for years.
But defense attorneys have zeroed in on the practice, arguing police officers do not receive adequate training to do the blood draws, don't have the health and safety of suspects as their top priority and put suspects at unnecessary risk.
They have succeeded in getting blood evidence tossed out of court and charges against their clients dismissed based on the fact that it was a law enforcement officer, not medical personnel, who took the sample.
Now the man who believes an officer-administered blood draw caused his persistent infection has filed a claim against Pima County and the Pima County Sheriff's Department. A claim is the first step in a lawsuit.
"I think most of the public does not realize that law enforcement personnel are doing the draws," said Michael Bloom, an attorney in the case.
He said the practice raises several concerns, including that "the officer is not there in a medical capacity, he is there in a law enforcement capacity. He is not there to safeguard the health and safety of the suspect."
According to the claim, James Green, a 31-year-old test pilot who works out of Pinal Air Park, was stopped by a sheriff's deputy March 27 and arrested on suspicion of driving under the influence. After being told his driver's license would be suspended for 12 months if he did not consent to a blood test, he agreed to allow the draw.
Even though they were within walking distance of Northwest Medical Center, the deputy performed the blood draw in the back seat of his squad car. It took two tries to get a sample.
The claim says Green's arm became swollen and very red around the site of the blood draw within a few hours. Five months later, he had undergone several rounds of treatment with antibiotics and still had the infection. The claim says Green can work only intermittently because of the infection and may face long-term health consequences.
James Charnesky, Green's lawyer in his criminal case, is working with Bloom on the civil case. He succeeded in getting charges dropped after arguing that the way the blood was drawn violated Green's due-process rights. Even though Green is seeking $500,000 in damages, Charnesky said the motivation behind the lawsuit is to change the practice.
Charnesky, who specializes in DUI cases, said the practice started in Arizona but now is spreading to some counties in Utah and Texas.
Lt. Karl Woolridge, the Sheriff's Department Special Operations commander, said deputies do blood draws because blood is more accurate than breath, and the closer to the time of the crime the evidence is collected, the more accurate it is.
"Our goal is to have fewer cases go to trial because we have better evidence," he said.
The Sheriff's Department does not track conviction rates, and the deputy county attorney who oversees DUI prosecutions could not be reached for comment.
Other metro-area police departments have officers trained to draw blood but still use breath tests, depending on the situation.
Woolridge said Green's claim doesn't tell the whole story, but he could not comment on the specifics because of the likelihood of a lawsuit.
He said it was the first claim he was aware of related to a blood draw done by a deputy, and he said it wasn't surprising that eventually someone would complain. "Imagine the total number of blood draws we do," he said. "We make 1,800 DUI arrests a year."
DUI defense attorneys have convinced judges to throw out blood evidence by arguing deputies threatened suspects with electric stun guns to get them to submit to a blood draw, police officers used too much force to restrain a suspect for a blood draw, officers drew blood while suspects were standing, or officers with limited experience went ahead with a blood draw even though a hospital was just a few minutes away.
In 2004, charges were dropped against a man facing misdemeanor DUI charges after he said deputies used a stun gun against him three times to force him to submit to a blood draw. He said he was afraid of needles.
The Sheriff's Department has since changed its Taser policy.
While having police officers do their own draws is now common in Pima County, medical experts expressed surprise at the practice.
The medical director of the American Red Cross Arizona Region Blood Services said she had never heard of such a practice, and it raised several concerns.
Phlebotomists who practice in a medical center get more training, and then more practice, before working on their own, she said.
"To be a really good phlebotomist, you need to do a lot of draws," she said. "The more draws you do, the better you'll be at it."
Also, if the arm isn't positioned properly or if the person is standing, there would be a greater risk of injury both to the person submitting to the draw and to the person administering it, Miller said.
Miller, a pathologist, said there always is a risk of infection with a blood draw because the skin can be cleaned but not sterilized. But she believed the risk of infection would be higher if the setting for the blood draw wasn't very clean.
Arizona has no state requirements or licensing process for phlebotomists. The Red Cross training calls for one week of classroom instruction, then two weeks of practice with a trained phlebotomist observing each blood draw. The curriculum endorsed by the National Phlebotomy Association calls for nine weeks of training.
The course for law enforcement officers, developed at Phoenix College and now offered at Pima Community College, lasts a week and includes two days of practice in a clinical setting. DUI criminal defense lawyers there will attack this problem.

California "DUI Team"

DUI Lawyers California - San Diego Drunk Driving criminal defense attorney info

San Diego California D.U.I. Team

The San Diego Police Department maintains a DUI Enforcement Team. The team's goal is to reduce the collisions involving alcohol and narcotics. The team's main function is the detection and apprehension of drivers who are suspected of drunk driving, DUI, driving while under the influence of alcohol or narcotics. All of the officers on this team have received additional training on the detection and apprehension of DUI / drunk drivers.

One of the tools that the California DUI / Drunk Driving Team uses to accomplish its goal is the use of DUI sobriety checkpoints. These California DUI / Drunk Driving checkpoints are designed to raise awareness and educate the public regarding the hazards of California DUI / Drunk Driving / driving while impaired. California DUI / Drunk Driving checkpoints are set up at various locations around the City of San Diego throughout the year.

The California DUI / Drunk Driving Team works closely with MADD (Mothers Against Drunk Driving) and other law enforcement agencies throughout the County to impact the problem of California DUI / Drunk Driving /impaired drivers.

California DUI criminal defense lawyers must combat multiple sources.

Kiefer Sutherland's Hollywood Hero status?

DUI Lawyers California - criminal defense update

When you are stopped for a California Drunk Driving / DUI by the police, you should not speak ill of women or Jews. You should instead treat the arresting officer with courtesy and respect. You have no reason to voice your issues with any religion or ethnic group, and you take your lumps silently and peacefully.

The bar has been lowered just a smidgen on what might raise a celebrity to a position of deference. You can be a chronic screw-up and still meet the criteria so long as you do it with a certain dignity while at the same time eschewing any entitlement vibe. That tends to disqualify Britney, Lindsay, Paris and Mel.

If you're looking for dysfunction done right, search no further than Kiefer Sutherland. Here is a man who takes a drink and drives, but then he takes responsibility. Sutherland pleaded no contest this week to California Drunk Driving / DUI / driving under the influence (driving with .08 BAC only) after driving off from a Fox fall season kickoff party Sept. 25, which violated his parole from the last time he was pulled over for DUI in 2004. This is on top of previous California Drunk Driving /DUI / prior drunk driving convictions in 1989 and 1993.

Sutherland has been sentenced to serve 48 days in jail without possibility of any bail-out from fellow 24 memebers, or any at-home, ankle-bracelet confinement. This qualifies as something close to real incarceration, not the garden variety 96-hour kind.

This is a big-time stand-up guy. Sutherland said in a statement Tuesday that he was "disappointed" in himself for the "poor judgment" he had recently exhibited. He admirably apologized to his family, his friends and the people at "24" and 20th Century Fox.

Here's a superstar who earns gazillions annually from a thriving TV career and who comes clean and takes his lumps. He blamed nobody/nothing else, not even the booze, for making him get behind the wheel, start the car, hit the gas and make an illegal U-turn. In return, Sutherland gets to keep his job and keep intact his reputation as a really nice and really talented guy with a few chemical-dependency issues.

So impressed were execs at 20th Century Fox TV and Fox Broadcasting by this falling-on-his-sword display of accountability that they took things to the level of veneration. The statement fell just short of comparing Sutherland's selfless actions to those of his "24" alter ego Jack Bauer. One put his own welfare behind that of his country; the other thought first of his co-workers.

"Kiefer made clear to us at the time of his arrest that his first concern was the welfare of those he worked with and that he intended to do whatever was necessary to prevent shutting down the show because of his situation," the joint statement from Fox read. "He told us that even if he had to sacrifice more time in custody in order to protect the show and the jobs of those who work with him, he would do so. From what occurred today, it is evident he is a man of his word."

Jack did not throw his body onto a live bomb here. He intelligently did what he had to do to save his California Drunk Driving / DUI self. Keifer: Now it's time to really get a Designated Driver or Limo at night. We are behind you Jack.

California drunk driving checkpont this weekend

Drunk Driving attorney / DUI lawyer California San Diego news

Costa Mesa police to set up weekend DUI checkpoint

The Costa Mesa Police Department has scheduled a DUI/license checkpoint between 8 p.m. and 2 a.m. Friday to Saturday on Newport Boulevard just south of 19th Street.

The department’s goal in setting up the checkpoint is to educate the public about the dangers of driving while intoxicated and/or without a valid driver’s license, police said.

Last year, 1,074 drivers were arrested on suspicion of driving under the influence in Costa Mesa. It is the goal of the city to reduce that number this year, said Sgt. Rich Allum.

Recent statistics from Mothers Against Drunk Driving show that DUI-related crashes are the nation’s most frequently committed crime.

Too many California DUI convictions lead to prison

Lawyers Drunk Driving / DUI Criminal Defense - California case

Filed 10/12/07 P. v. Allison CA5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

BARBARA HALLEN ALLISON,

Defendant and Appellant.
F051941
(Super. Ct. No. F06903476-0)

OPINION


THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Gary R. Orozco, Judge.

William Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Barbara Hallen Allison contends the imposition of the upper term of imprisonment violates her constitutional rights as articulated in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

We disagree with Allison’s contentions and will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Allison had been convicted of driving under the influence in 2003 and placed on felony probation. In November 2004, her probation was revoked and she was sentenced to 16 months in state prison, with 522 days’ credit for time served. She was paroled within the month. She violated parole in March and April of 2005 and February and May of 2006.

On May 30, 2006, Allison was charged with driving under the influence, driving with a blood-alcohol level higher than .08 percent, and it was alleged that she had suffered a prior driving under the influence conviction and had served a prior prison term. She had a blood-alcohol level of .28 percent at the time of her arrest on April 23, 2006.

On October 12, 2006, Allison pled not guilty and denied the prior conviction allegation. On November 1, 2006, Allison withdrew her not guilty plea, pled no contest to driving under the influence, and admitted the prior conviction allegation as part of a plea agreement, including dismissal of the other charge and prior prison term allegation and a three-year lid on the plea.

On December 4, 2006, the trial court imposed the upper term sentence of three years.

DISCUSSION

Allison contends the trial court violated Blakely and Cunningham by imposing the upper term of three years for the driving under the influence conviction because her history of offenses and her parole status are matters that require a jury determination. She is incorrect.

Under the terms of the plea agreement, Allison could have been sentenced to a total maximum term of imprisonment of three years. The trial court imposed a three-year sentence, within the maximum under the plea agreement. Allison agreed to imposition of a three-year maximum as a condition of the plea agreement.

By entering into the plea agreement, Allison effectively stipulated that there was a factual basis for the imposition of the maximum term that could be imposed within the terms of the plea agreement and that imposition of the lid was lawful. (People v. Shelton (2006) 37 Cal.4th 759, 768.) Under Blakely, the statutory maximum includes the maximum sentence a judge may impose based on facts admitted by the defendant. (Blakely, supra, 542 U.S. at p. 303.) Cunningham held that in accord with Blakely, the upper term could be imposed if the factual basis was found by the jury or stipulated to by the defendant. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at p. 868].)

In People v. Bobbit (2006) 138 Cal.App.4th 445, the defendant entered into a plea agreement with a sentencing lid. The trial court imposed the maximum term that could be imposed under the plea agreement. (Id. at p. 447.) After first noting that the issue was not cognizable on appeal because the defendant failed to obtain a certificate of probable cause, the appellate court noted that imposition of the upper term pursuant to a plea agreement was not precluded, citing People v. Shelton, supra, 37 Cal.4th 759. As the California Supreme Court stated in Shelton:

“[T]he specification of a maximum sentence or lid in a plea agreement normally implies a mutual understanding of the defendant and the prosecutor that the specified maximum term is one that the trial court may lawfully impose and also a mutual understanding that, absent the agreement for the lid, the trial court might lawfully impose an even longer term.” (Id. at p. 768.)

The sentence imposed is within the maximum specified under the plea agreement and was stipulated to by Allison. The sentence does not violate Blakely or Cunningham.

DISPOSITION

The judgment is affirmed.



* Before Harris, Acting P.J., Cornell, J. and Dawson, J.

What can happen with a California DUI?

Drunk Driving Lawyers California

What would a California DUI charge or a criminal conviction mean to you?

Having a suspended license as a result of a California DUI charge can make life really difficult.

A California drunk driving or California DUI charge impacts people in different ways. For some, a California DUI may simply slow you down or cause minor inconveniences. For others, having a California DUI on your driving record, may cost you your job, put a strain on your marriage and friendships.

When contacting a San Diego California DUI criminal defense attorney, find out your options, and see if he can vigorously represent you at your California DUI / California DMV hearings.


Choose your attorney carefully. Deciding who will represent you is one of the most important decisions in your case. Choose a DUI defense attorney with the experience to minimize the impact of the DUI on your life.

Call for an attorney to take your weekend call.

2 years prison for California Felony Drunk Driving

Drunk Driving Lawyer - California news

Two years prison for felony DUI

A 30-year-old man who killed his father while drunk driving in Orange County was sentenced to two years in prison on a different set of California DUI charges for a San Mateo County incident that happened prior to the fatal accident.

Jose Baez was sentenced to two two-year terms on a pair of driving while intoxicated charges. Judge Joseph Bergeron stayed the sentence for the first count, remanding him to prison for two years. He receives credit for 114 days, according to court records clerks.

On March 21, 2006, California Highway Patrol Officers reportedly found Baez passed out in his car at 5 a.m. with a blood alcohol level of .16. Baez was released on his own recognizance pending the outcome of his case and traveled to Orange County. While there, Baez’s father was killed while riding with his reportedly inebriated son. Baez was convicted of vehicular manslaughter and sent to prison where he remained until the start of the San Mateo County case.

On July 6, after a four-day trial, jurors deliberated an hour before convicting Baez.

Councilwoman's California DU Motion to Suppress Denied

Attorney Drunk Driving California - news

EVIDENCE STAYS IN COUNCILWOMAN'S DUI CASE

A Sonoma County Superior Court Judge denied a bid by Sebastopol Councilwoman Linda Kelley today to suppress evidence in her California DUI case.

Judge Frank Passalacqua ruled Sonoma County Sheriff's Deputy Matthew Regan had a lawful reason to stop Kelley's 1998 GMC pickup in Guerneville on May 20 because he believed the registration might have expired the month before.

The traffic stop led to Kelley's arrest after a California Highway Patrol officer also responded and arrested Kelley on suspicion of California DUI. Her blood-alcohol level during two breath analysis tests at the county jail was 0.09 percent, just above the 0.08 percent level of intoxication.

Kelley's attorney Andy Martinez asked the judge to suppress the California DUI evidence because there was no probable cause to stop Kelley's truck.

Regan testified this morning that he followed Kelley's truck because she was driving very slowly through Guerneville around 2:15 a.m. and that after he stopped her she displayed "classic signs of DUI" including red watery eyes and slow deliberate speech. He said Kelley admitted she had three vodka and cranberry drinks.

Regan said that before he stopped Kelley's truck it appeared the registration tag on her license plate had expired but he said he did not check to see if it had expired because he is not required to. He also said the license plate was obscured.

Heather Bushey, the responding CHP officer, testified that Regan told her he stopped the truck because Kelley was driving about 10 mph in a 25 mph area and that it appeared her registration had expired.

Bushey said she then confirmed on a computer that the registration was valid. Kelley was arrested after Regan and Bushey allegedly smelled alcohol on her breath. Kelley did not perform California drunk driving field sobriety tests.

Kelley testified she was driving slowly for safety reasons because people were getting out of bars and walking in the area and there were cars parked along the streets. She said her valid registration tag was on her license plate.

Passalacqua disagreed. "I don't think the sticker was on that plate," he said before denying the motion to suppress the evidence and ruling the traffic stop was lawful.

Kelley, 53, will appear in court Nov. 14 for a settlement conference.

California's Designated Driver Program in San Diego

DUI Lawyer California - San Diego news

Why get a San Diego DUI when you can have a Designated Driver and avoid a drunk driving charge in San Diego?

PACIFIC BEACH, California

A new program kicked off Thursday night that organizers hope will change the reputation of Pacific Beach.

More than 20 bars are taking part in the "Who's Your DD" designated driver program. Servers and bartenders from places including PB Bar and Grill, Moondoggies and Cabo Cantina will now be asking groups who the designated driver is. That person will get free non-alcoholic beverages and free snacks.

The program is a joint venture with San Diego State University. Students and faculty are in the middle of a $3 million, four-year program to study underage drinking habits. For the next year they will monitor this program to see if the number of San Diego Drunk Driving / San Diego DUI arrests decreases.

Pacific Beach is getting a bad rap and it's too bad because there's a lot of good people that live here that do like to have fun.

Councilman Kevin Faulconer, who represents Pacific Beach, has been very outspoken about the issue of drinking there. Ever since the riots on Labor Day he's been fighting to get drinking banned on the beach.

Drunk Driving repeats get counseling in California

California Drunk Driving Criminal Defense Lawyers info

Repeat California DUI / drunk driving offenders are being offered counseling services at the Sacramento County California jail in what officials said is the first program of its kind in the state.

Saying stricter enforcement of California DUI laws isn't enough to deter recidivism among those who drive drunk, officials with the state Office of Traffic Safety, the Sacramento police and sheriff's departments and area hospitals last month began offering services to inmates at the jail who were brought in on drunken driving charges.

Of the 58 repeat offenders contacted since Sept. 1, just one declined.

"If you look at the measurements, increased fines and jail time does not change behavior," said Dr. Leon Owens, the director of trauma care at Mercy San Juan Medical Center and one of the catalysts behind the program.

Owens, who lost his son in an alcohol-related crash in 2002, said similar counseling services are offered in hospital emergency rooms throughout the country but that the Sacramento jail program will "get to drivers before they injure themselves or someone else."

Drunken driving fatalities have risen nearly 50 percent in California over the past five years, statistics show. The Sacramento region has among the highest rates of alcohol-related crashes and California DUI arrests in the state, officials said.

Last month, 553 people were arrested in Sacramento County on drunken driving charges, said Marcia Hager, a counselor from UC Davis Medical Center who is conducting the interventions. For more than a quarter of the inmates, it was at least their second arrest on such charges.

Hager said repeat offenders who agree to speak with a counselor complete a questionnaire that aims to identify where they are "in terms of risk of repeating or having a crash."

"At that point, I ask them, 'What do you think? Do you want to change?' " Hager said. "They often have that 'ah ha' moment where they say they did not know they had a problem."

Before leaving jail, offenders are given a referral for alcohol treatment.

The two-year program, funded by a $500,000 grant from the Office of Traffic Safety, will be evaluated by researchers at the University of Michigan. Follow-ups will be conducted with offenders six months and then one year after arrest, and evaluators will investigate whether there has been a decrease in drunken driving fatalities and crashes, California DUI arrests and repeat offenders.

The counseling services are being offered in conjunction with a program that began in January that allows for the temporary impound of repeat offenders' ve- hicles. Sacramento Police Chief Albert Najera said the rising number of drunk driving fatalities shows there is a need for "strong law enforcement coupled with prevention and intervention."

"We have random fatal violence being perpetrated against our community everyday," Najera said. "It's violent crime just like anything else, and we are going to save lives in our community (with these programs)."


IN THE KNOW

Sacramento County averages between 500 and 600 California DUI arrests each month. Last month, 553 people were arrested.


• 72 percent of those arrested in September were booked for the first time on California DUI charges


• 8 percent were facing charges for the second time


• 20 percent were booked for at least the third time


• 77 percent of those arrested were men.


Figures courtesy of Marcia Hager, counselor with UC Davis Medical Center

Sacramento sports star arrested for California Drunk Driving

California DUI criminal defense attorney news

SACRAMENTO, California

A member of the Sacramento Monarchs is facing a California DUI charge.

Rebekkah Brunson, a forward for the Monarchs, was stopped for a routine moving violation early Thursday morning, according to a statement released by Maloof Sports & Entertainment.

The California Highway Patrol said Brunson then allegedly failed a California Drunk Driving sobriety test and was charged with a California DUI violation.

According to the CHP, Brunson was pulled over at 127 I St. following suspicion of California DUI/ drunk driving/driving under the influence.

At 1:56 a.m. Brunson was charged on suspicion of California DUI - being under the influence and for having a blood alcohol level of 0.08 percent or more.

Brunson's exact blood alcohol level has not yet been made public. His California DUI criminal defense attorney has issued no statement.

Brunson said in a statement, "I would like to apologize to the Sacramento Monarchs organization, the Sacramento Monarchs fans and the Sacramento community. I am very embarrassed and ashamed and I am well aware of the seriousness of the situation. It's not representative of how I live my life and I recognize what a huge mistake this is. I am deeply sorry."

The Monarchs organization said it takes the charge seriously. It is unknown who is top California drunk driving criminal defense lawyer is.

Kiefer Sutherland going to Jail for California DUI

California drunk driving criminal lawyer news

Jack Bauer to Do Jail Time on DUI Charge

October 10, 2007

LOS ANGELES California

Kiefer Sutherland pleaded no contest Tuesday to a charge of driving with a blood-alcohol level above the legal limit (Vehicle Code section 23152(b)) and will serve 30 days in county jail under terms of a plea agreement.

Criminal Defense Attorney Blair Berk entered the plea on behalf of Sutherland, who was not present.

As part of the arrangement, Sutherland must also enroll in an 18-month alcohol-education class and attend weekly alcohol-therapy sessions for six months.

The charge of driving with a blood-alcohol level of .08 percent or higher stemmed from a traffic stop in Los Angeles last month.

A second misdemeanor charge, Califoirnia DUI - driving under the influence, was dropped.

Sutherland is already on probation for a 2004 drunken driving arrest. Superior Court Judge Stuart M. Rice revoked the actor's probation in that case.

Sutherland, star of Fox's "24," could face six months in jail for violating probation. Sentencing is set for Dec. 21, the same day the show begins its winter production break.

"I'm very disappointed in myself for the poor judgment I exhibited recently, and I'm deeply sorry for the disappointment and distress this has caused my family, friends and co-workers on `24' and at 20th Century Fox," Sutherland said in a statement.

The actor's plea arrangement ensures that production of "24" will not be interrupted, Fox officials said in a statement.

"Kiefer made clear to us at the time of his arrest that his first concern was the welfare of those he worked with and that he intended to do whatever was necessary to prevent shutting down the show because of his situation," the statement said.

"He told us that even if he had to sacrifice more time in custody in order to protect the show and the jobs of those who work with him, he would do so. From what occurred today, it is evident he is a man of his word."

HGN Eye (field sobriety) test is questionable

California DUI criminal defense lawyer news

There will be an appeal of a Peoria County DUI / drunk driving conviction could determine whether prosecutors can pull a commonly used DUI field sobriety test out of their arsenal at trial.

The Illinois Supreme Court recently found Peoria County Judge Jerelyn Maher improperly allowed the results of a horizontal gaze nystagmus (HGN) test to be used at trial four years ago without first holding a hearing as to whether the test was based on sound science.

The test is based upon the premise that if a person has been drinking, his or her pupils would not follow a pen or a finger smoothly.

The unanimous Sept. 20 decision stopped short of throwing out Joanne McKown's conviction but sent her case back to Peoria County for a hearing where experts on both sides will testify as to whether the HGN test passes scientific muster.

HGN tests have been used for years and are considered a good indication of whether a person is drunk, but often they are accompanied by other field sobriety results or chemical tests. McKown's case, however, appeared to use the HGN test almost exclusively to find that she was intoxicated on June 8, 2002, when her car collided with three motorcycles on Maher Road.

A hearing will be scheduled within 90 days, and a judge - either Maher or another one - will decide if the test is "generally accepted as a reliable indicator of alcohol impairment." Regardless of the decision, the matter goes back to the state Supreme Court, which will have the final say.

The high court's ruling could settle the dispute once and for all in Illinois.

"I am tickled to death not only for my client, but now we get to
try to help all defendants in the state of Illinois," said McKown's DUI attorney, Michael Rickgauer. "It is a great feeling from a defense lawyer's standpoint because we are settling something that makes a difference to hundreds of peoples' lives each year."

The attorney said the test's methodology is subjective because there is no way to quantify the results and it's based upon a police officer's observations. McKown, 43, whose hometown is listed as Hanna City according to court records, was convicted of aggravated driving under the influence and aggravated reckless driving at a 2003 bench trial and sentenced to two years in prison.

After the accident, a witnesses testified he smelled beer on her breath. The investigating officer also testified he smelled beer and said he found a half-empty beer can in her car. McKown, who was taken to the hospital after the crash, told him she drank beer earlier that day.

The officer did the HGN test at the hospital not long after the accident, and McKown failed. He did no other field sobriety tests because she had a broken toe. A blood test wasn't done for several hours because she resisted until she was court ordered to give blood. When it was done, the test showed no alcohol in her system.

The appellate court upheld McKown's conviction, saying "HGN testing is generally accepted in the scientific community as a reliable indicator of alcohol impairment."

Yet the Supreme Court disagreed, saying the test differed from others given because the results to the average person were meaningless, whereas the effect of alcohol on a person's balance was easily understood. Given that, the HGN test was considered scientific and therefore, held to a higher standard.

Steve Oberman of Knoxville, Tenn., chairs the DUI defense committee for the National Association of Criminal Defense Lawyers. A similar decision in Tennessee resulted in prosecutors using the test less frequently. When it is used, prosecutors often have a few more legal hoops to jump through to have the results admitted.

California DUI Effect on Immigration Status changes

California DUI criminal defense attorneys news - Immigration

AILA DOS Liaison Committee DUI/DWI Practice Alert
Cite as "AILA InfoNet Doc. No. 07100961 (posted Oct. 9, 2007)"

The Department of State has recently issued a cable, "Guidance On Processing Visa Applicants With Drunk Driving Hits" (AILA InfoNet Doc. No. 07071670 (posted Jul. 16, 2007), requiring consular officers to refer nonimmigrant visa applicants with prior drunk driving issues to panel physicians for medical examination in the following circumstances:

(1) if an applicant has a single drunk driving arrest or conviction within the last three calendar years, or

(2) if the applicant has two or more drunk driving arrests or drunk driving convictions in any time period.

Consular officers must now also refer applicants to panel physicians if there is any other evidence to suggest an alcohol problem (emphasis added). The directive is not discretionary. For example, it is now likely that an arrest for public intoxication at any time could trigger this new directive.

The new text revision, to be placed at 9 FAM 40.11 N8.3, will read:

Alcohol Dependence (Alcoholism) or Alcohol Abuse

While alcoholism constitutes a medical condition, INA 212(a)(1)(A) (iii) does not refer explicitly to alcoholics or alcoholism. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior. An alcoholic is not ineligible to receive a visa unless there is harmful behavior associated with the disorder that has posed, or is likely to pose, a threat to the property, safety, or welfare of the alien or others. To ensure proper evaluation, you must refer applicants to panel physicians when they have a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or convictions in any time period. You also must refer cases to a panel physician if there is any other evidence to suggest an alcohol problem.

The italicized language above, which is noteworthy for its focus on arrests rather than only convictions, replaces the following language in the current FAM note regarding alcoholism:

For example, CDC has determined that a conviction for driving while under the influence of alcohol would constitute evidence of a medical disorder with associated harmful behavior.

Interestingly, we are unable to find such a CDC determination in current CDC guidelines to panel physicians.

Nonimmigrant visa applicants disclosing an alcohol arrest in the U.S. will also have to undergo National Crime Information Center (NCIC) processing which requires the applicant to pay an $85 fee for fingerprinting and wait for the FBI record results (which can take 1-2 days at posts with electronic fingerprint processing or up to 2 months for posts that capture fingerprints with ink).1 Applicants with alcohol related arrests inside or outside of the U.S. are advised to be careful to fully disclose the incident. Some consulates have and use independent access to records of local DUI proceedings. DOS can choose to subject an applicant to fingerprinting and NCIC check for other reasons, and such submission would likely reveal an arrest. Failure to disclose the event on Form DS-156 could lead to a misrepresentation finding and inadmissibility on that basis, even if the convictions or arrests do not lead to a Class A determination, given the Department of State's interpretations concerning inadmissibility.

Visa applicants should have available a copy of the arrest report, certified court disposition, and if possible a declaration and accompanying legal brief. Declarations from the applicant and others who are familiar with his/her good moral character would be helpful.

While we are still awaiting confirmation from the Visa Office, clients who are planning to apply for visa renewal should be warned that their existing valid visas will likely be cancelled if the applicant is referred to a panel physician for a determination of alcohol abuse or dependence.

The transparency of the directive leads thoughtful lawyers and their clients to consider streamlining the process by trying to arrange the inevitable panel physician's consideration of the criminal record before the visa interview, avoiding a subsequent referral and re-interview. In the immigrant visa context, this is a matter of clearly calling the criminal record to the attention of the panel physician and requesting that the medical report clearly refer to and draw conclusions arising from each incident in the record, so that the consular officer can be sure that each incident was considered. Of course, incidents discovered only through the consulate's NCIC or other report will require referral (and risk misrepresentation ineligibility) . In the nonimmigrant context, there is not a clear procedure for pre-interview medical exam, but advocates' efforts to make arrangements with posts may lead to transparent procedures over time. As the State Department moves more toward fully electronic visa submissions, answers triggering panel physician reports may lead to automatic scheduling of medical examinations preceding visa interview.

The medical examination is to be conducted in accordance with the Center for Disease Control's current Technical Instructions for the Medical Examination of Aliens ("The Technical Instructions" ), which are published at http://www.cdc. gov/NCIDOD/ DQ/pdf/ti- alien.pdf. Under the guidelines, the medical exam must include, in addition to a physical exam, (1) a medical history, obtained by the panel physician or a member of the physician's professional staff, from the applicant (preferably) or a family member, which includes specific questions about psychoactive drug and alcohol use, history of harmful behavior, and history of psychiatric illness not documented in the medical records reviewed; and (2) a review of any other records that are available to the physician (e.g., police, military, school, or employment) and that may help to determine a history of harmful behavior related to a physical or mental disorder and to determine whether illnesses or disabilities are present that result in a substantial departure from a normal state of well-being or level of functioning.

The four essential components of the exam's conclusion about alcohol include:

1. Has there been a mental condition/disorder (alcohol abuse)?

2. Has the condition been associated with harmful behavior?

3. Is the mental condition currently present?

4. If so, is harmful behavior likely to recur?

The panel physician will issue a report concluding whether or not the applicant has a Class A condition or Class B condition.

Even when the physician determines that the applicant has had a condition resulting in harmful behavior, the report should reflect no Class A or B condition if the physician concludes that the condition is not currently present and harmful behavior is not likely to recur.

If the panel physician finds that the applicant's current condition is associated with harmful behavior and that the harmful behavior is likely to recur, a Class A determination must be made, rendering the applicant ineligible to receive a visa under INA 212(a)(1)(A) . In an extraordinary circumstance, the consular officer may be persuaded to request review by the CDC in the United States . The State Department considers medical examination reports "confidential" and refuses to release them in response to Freedom of Information Act or other requests, but applicants may request from the consulate more specific reasons for the denial that is based on a medical report. While technically such applicants may be eligible for a 212(d)(3) nonimmigrant waiver, it would appear to be difficult to obtain a waiver recommendation by a consular officer or the Visa Office when the alien has recently been found inadmissible because of harmful behavior that is likely to recur.

If the panel physician finds that there is a current condition but no history of harmful behavior, or that there has been a condition associated with harmful behavior but the condition is controlled by medication, is in remission or harmful behavior is not likely to recur, a Class B determination can be made, normally resulting in the applicant being found admissible. The guidelines state:

The behavior can be judged not likely to recur if the alien is able to demonstrate that the disorder is in remission, remission being defined as no pattern of the behavioral element of the disorder for the past 2 years (5 years in the case of antisocial personality disorder, impulse control disorders not otherwise classified, paraphilias that involve behaviors that threaten others, and conduct disorders); or the alien's condition is controlled by medication and the alien certifies in writing that he or she will continue medication or other treatment to control the disorder and prevent harmful behavior.

In all likelihood, if a Class A determination is not made, a Class B determination is unlikely in relation to a DUI history.

Some panel physician recommendations can take several weeks and some might refer the applicant to a psychiatrist for further evaluation (as the physician deals with the physical side of excessive drinking as opposed to the mental review done by a psychiatrist) .

The Department of State does not involve itself in how the panel physician analyzes for a Class A medical condition, and the CDC (Public Health Service) guidelines to panel physicians are not very specific in relation to alcohol issues. Applicants can expect varying approaches from panel physicians, ranging from oral discussions with the applicant about the incidents involved to extensive medical tests for indicia of alcohol dependency.




--------------------------------------------------------------------------------


1. DOS is working to implement 10 print fingerprinting and NCIC checks in all visa applications by the end of calendar year 2007 and states that NCIC results in pilot posts have returned within less than a half hour.

DOS Visa Policy Telegram to Consular Posts on Processing Visa Applicants with Drunk Driving Hits
Cite as "AILA InfoNet Doc. No. 07071670 (posted Jul. 16, 2007)"

R 072132Z JUN 07
FM SECSTATE WASHDC
TO ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE
RUEHTRO/AMEMBASSY TRIPOLI 3805
BT
UNCLAS STATE 079496

E.O. 12958: N/A
TAGS: CVIS, CMGT
SUBJECT: GUIDANCE ON PROCESSING VISA APPLICANTS WITH DRUNK DRIVING HITS

1. Summary: This cable clarifies how consular officers should handle cases where an applicants' criminal record shows an arrest or conviction for drunk driving or other alcohol related offence. End summary.

2. Posts generally become aware of drunk driving arrests and convictions after receiving the results of fingerprints taken when an applicant has a CLASS hit. While a drunk driving conviction is not a statutory visa ineligibility, a conviction may indicate that further investigation is needed to determine whether the applicant may in fact be ineligible under Section 212(a)(1)(A) (iii). This applies to applicants who have a physical or mental disorder and demonstrate behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.

3. In the case of IV applicants, consular officers must refer the applicant back to the panel physician for additional evaluation. Physicians are evaluating for the presence of a mental disorder previously unnoticed before the physician became aware of the alcohol-related arrest. NIV applicants that have hits with evidence of an alcohol-related arrest or conviction must be referred to panel physicians for evaluation. This must be done even if the panel physician is physically located in another city.

4. After consulting with the Center for Disease Control and Prevention, we have determined that consular officers must refer applicants to panel physicians in two circumstances: (1) an applicant has a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or (2) convictions in any time period. Consular officers must also refer applicants to panel physicians if there is any other evidence to suggest an alcohol problem. Consular officers must adhere strictly to these guidelines in determining when a panel physician referral is appropriate.

5. For a finding of eligibility under Section 212(a)(1)(A) (iii), there must be two criteria established by the panel physician: (1) diagnosis of mental disorder (alcohol abuse) and (2) current harmful behavior associated with the mental disorder or a history of harmful behavior associated with the mental disorder that is judged likely to recur in the future. Consular officers should be aware that neither alcohol abuse or (DWI) drunk driving are sufficient grounds for an ineligibility finding under Section 212(a)(1)(A) (iii), a panel physician evaluation is required.

6. Section 9 FAM 40.11 N8.3 will be updated as follows:

While alcoholism constitutes a medical condition, INA 212(a)(1)(A) (iii) does not refer explicitly to alcoholics or alcoholism. Evaluation for alcohol abuse or dependence is included in the evaluation for mental and physical disorders with associated harmful behavior. An alcoholic is not ineligible to receive a visa unless there is harmful behavior associated with the disorder that has posed, or is likely to pose, a threat to the property, safety, or welfare of the alien or others. To ensure proper evaluation, you must refer applicants to panel physicians when they have a single drunk driving arrest or conviction within the last three calendar years or two or more drunk driving arrests or convictions in any time period. You also must refer cases to a panel physician if there is any other evidence to suggest an alcohol problem.

Intoxilyzer Co. giving up Source Code

California Drunk Driving / DUI Criminal Defense Lawyer news

Facing court fines and the possibility of losing future sales, the company that manufactures the state's drunken-driving breath-test machines has agreed to give DUI defendants a look at how one works.

What DUI criminal defense attorneys hope to find inside is proof of their suspicions that the software inside the briefcase-size machines makes mistakes while calculating a driver's blood-alcohol content from a breath sample.

So far, they remain only suspicions. In courts across the country, CMI Inc. of Kentucky has refused to disclose the "source code" of the software in the widely used Intoxilyzer machines.

But now that refusal is hurting CMI in the pocketbook, and the company is agreeing to release the code under certain conditions.

Judges in Sarasota and Manatee counties -- where more than 300 DUI cases are stuck in the system -- have fined CMI more than $100,000 for not allowing computer experts for the DUI criminal defense attorneys to view the software's source code.

And Minnesota is considering scrapping CMI machines for a competitor's devices so prosecutors have results that will not be thrown out of court, according to Minneapolis- area DUI criminal defense attorney Jeffrey Sheridan.

"They're starting to understand they're going to lose their market share, and they're starting to wake up and decide to do something," said Sheridan, who won a state Supreme Court battle over CMI's source code this year.

Defense attorneys have challenged the Intoxilyzer machines on the software issue for nearly two years, insisting that DUI criminal defendants should know everything about a machine that could send them to prison.

A blood-alcohol content reading is the most powerful piece of evidence against a drunken driver, and errors in the software could mean drivers never know if the machine is working properly, DUI criminal defense attorneys say.

CMI has refused to turn over the source code, saying it is a trade secret that its competitors can use to learn how it is so successful -- and does nothing to prove the accuracy of the machines.

Intoxilyzers have been tested in laboratories and the field, CMI says.

Law enforcement officials in 20 states use the machines. But in a letter to clients that is spreading through defense attorney circles, CMI president Toby Hall acknowledged that the source code issue is causing problems for prosecutors.

Hall writes that the company would now allow "controlled viewing" -- with a protection order and nondisclosure agreements -- when ordered by a "competent court of jurisdiction."

"The denial of access to CMI's intellectual property has put a strain on our customers' resources in supporting their programs," Hall states in the letter.

A Sarasota County judge called the backup of DUI cases here "a tremendous glut," and fined the company $3,200 per day until it turned over the source code for the newest machine in Florida, the Intoxilyzer 8000.

"They had totally blown us off here and the daily fine is now six figures, and they can't ignore that," said Venice defense attorney Robert Harrison.

The Florida Department of Law Enforcement, which tested the machines and contends that they work, has not received a letter from CMI, FDLE spokeswoman Heather Smith said Thursday.

"If having the source code available will help encourage transparency in how it operates, that will be a positive thing and provide assurances the instrument works exactly as it should," Smith said.

But DUI criminal defense attorneys are still skeptical. Sheridan said DUI criminal defense lawyers were not likely to agree to the conditions CMI is putting on the viewing.

"It's just CMI's new way of saying no," Sheridan said.

Victim in accident? You could be DUI & arrested at hospital

California DUI criminal defense lawyer news

A California DUI suspect escaped serious injury after colliding with a power pole Saturday night. Police said that alcohol played a role in the wreck.

The accident happened at 9 p.m., as Nahim Aguilar, 30, of Napa, drove east on Lincoln Avenue, near Jordan Lane, and allegedly lost control of his car. He left the road, drove up on the sidewalk and collided with a power pole.

Police reports show that Aguilar sustained a head injury and was transported to Queen of the Valley medica Center, where he recieved staples to close his head wound.

Napa Police officers closed Lincoln Avenue from Soscol Avenue to Silverado Trail for about 90 minutes as crews worked to replace the damaged power pole.

Police arrested Aguilar on suspicion of California drunk driving - DUI shortly after his visit to the hospital.

California DUI is LIO of Vehiclular Manslaughter w/out Gross Negligence

California DUI / Drunk Driving Criminal Defense Attorneys news

California DUI is LIO of Vehiclular Manslaughter without gross negligence

People v. Binkerd (2007) , Cal.App.4th
[No. B198470. Second Dist., Div. Six. Oct. 2, 2007.]
THE PEOPLE, Plaintiff and Respondent, v. JESSICA ROSE BINKERD, Defendant and Appellant.

(Superior Court of Santa Barbara County, No. 1213963, Joseph Lodge, Judge.)

(Opinion by Perren, J., with Gilbert, P.J., and Yegan, J., concurring.)

COUNSEL

S.R. Balash, Jr., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey, John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

PERREN, J.-

Jessica Rose Binkerd appeals from the judgment entered following her plea of no contest to vehicular manslaughter without gross negligence (count 1, Pen. Code, § 192, subd. (c)(3)) fn. 1 and driving under the influence of alcohol causing injury (count 2, Veh. Code, § 23153, subd. (a)). She admitted the special allegations of causing injury to more than one victim (Veh. Code, § 23558) as to both counts and causing great bodily injury (§ 12022.7, subd. (a)) as to count 2. The trial court sentenced her to five years four months in state prison on count 2 including enhancements, and stayed imposition of sentence on count 1. (§ 654.)

Appellant contends the trial court improperly entered judgment on count 2 because it is necessarily a lesser included offense of count 1, and that the prosecutor committed misconduct by arguing to the court that she was ineligible for probation. We conclude that driving under the influence of alcohol causing injury (count 2) is a {Slip Opn. Page 2} necessarily lesser included offense of vehicular manslaughter without gross negligence (count 1). Accordingly, we reverse the conviction on count 2 and remand for resentencing.

Motorcyclist Seriously Hurt In Possible California DUI Crash

San Diego California DUI criminal defense lawyer news

Motorcyclist Seriously Hurt In Possible DUI Crash

PALM SPRINGS, California

A motorcyclist was seriously injured in what police suspect may have been a drunk driving and speed-related collision in Palm Springs.

Police responded to the accident Sunday just before 9:45 p.m. on East Palm Canyon Drive near Sunrise Way, according to Palm Springs police.

A preliminary investigation revealed the motorcyclist was driving east on East Palm Canyon Drive and had just crossed Sunrise Way when the driver of a Scion traveling westbound attempted to turn into the Smoketree Shopping Center and the two vehicles collided.

"It is believed that the motorcyclist was possibly speeding prior to the collision, and may have been under the influence of alcohol".

The motorcyclist, whose name was not released, suffered serious injuries and was taken to Desert Regional Medical Center.

An investigation into the collision was ongoing.

Thousands of motorcyclists visited Palm Springs over the weekend for the American Heat Palm Springs Motorcycle Weekend.

The wild event included live music, poker runs, bike games and competitions.

Hit & Run & Police Evasion for California DUI driver

California DUI / Drunk Driving criminal defense lawyers news

SANTA ROSA California

A man who fled after allegedly being involved in a hit-and-run collision in Santa Rosa has been taken into custody.

Michael Mitrick, of Santa Rosa, was booked into the Sonoma County Jail on Friday for felony evading, assault with a deadly weapon on a police officer, hit and run, Drunk Driving / DUI / driving under the influence and driving with a suspended license, according to the Santa Rosa Police Department.

At about 9:10 a.m. Friday, the Santa Rosa Police Department was advised of a hit and run that occurred in the area of Mission Boulevard and Sonoma Highway. The suspect vehicle was being followed by a witness.

A Santa Rosa K-9 officer located the suspect vehicle, a 1995 Chevrolet Corvette, near the intersection of College Avenue and Morgan Street.

The officer attempted to initiate a traffic stop. The Corvette’s driver then fled from the officer. The officer followed the Corvette onto northbound Cleveland Avenue. The pursuit reached speeds in excess of 60 mph.

During the pursuit, Mitrick allegedly lost control of the Corvette. When officers approached the car, Mitrick reversed and accelerated toward the officers, according to police.

The pursuit concluded in a parking lot, where Mitrick allegedly didn’t comply with the officer's commands and a K-9 was deployed.

California DUI / Drunk Driving Criminal Defense Lawyers

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Drunk Driving Checkpoint ? Cops in road

California Drunk Driving Criminal Defense Lawyer case

NO. COA06-1488



NORTH CAROLINA COURT OF APPEALS



Filed: 2 October 2007



STATE OF NORTH CAROLINA


v . Pitt County
No. 05 CRS 51043
SHANNON DENISE HAISLIP




Appeal by Defendant from judgment entered 23 May 2006 by Judge William C. Griffin, Jr., in Pitt County Superior Court. Heard in the Court of Appeals 6 June 2007.

Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State.

The Robinson Law Firm, P.A., by Leslie S. Robinson, for Defendant.



STEPHENS, Judge.

On 3 February 2005, Defendant was issued a citation for driving while impaired in violation of N.C. Gen. Stat. § 20-138.1 . After being found guilty of that offense in district court on 13 February 2006, Defendant appealed her conviction to the superior court pursuant to N.C. Gen. Stat. § 7A-271(b) . On 28 February 2006, Defendant filed a motion to suppress the evidence used to convict her . At a hearing on the motion held outside the presence of the jury during trial on 22 May 2006, Defendant argued that the evidence used to convict her was procured as the result of an unconstitutional motor vehicle checkpoint . The trial court concluded that Defendant did not have standing to challenge the checkpoint's constitutionality because she was not “snared” by it . Defendant was subsequently found guilty by the jury . Defendant appeals.
The dispositive issue before this Court is whether Defendant has standing to challenge the constitutionality of the checkpoint plan. The trial court tailored its ruling so that “[this] Court can't duck this question[.]” We reverse the order and judgment of the trial court and remand for findings and conclusions on the checkpoint's constitutionality.


FACTS

On the evening of 2 February 2005, a weeknight, patrol officers Lascallette (“Lascallette”) and Webb (“Webb”) of the Greenville Police Department “discussed the possibility” of setting up a “driver's license checkpoint” later that night . Although Lascallette testified that Webb received authority from Lieutenant Phipps (“Phipps”), their supervisor, to conduct a checkpoint, Phipps testified that he could not recall giving authorization for the checkpoint .
Lascallette and Webb decided to meet at a location on Firetower Road in Greenville around 2:30 a.m. because they “don't get many calls at that time[.]” Lascallette testified that the officers had conducted previous checkpoints at the Firetower Road location and that he “didn't think it was a very effective spot, but it served the purpose -- it kept us gainfully employed.” Although Lascallette labeled the checkpoint a “driver's license checkpoint,” he acknowledged that the purpose of the checkpoint was to look for “[a]ny violation of [Chapter 20]” of North Carolina'sGeneral Statutes, which governs motor vehicle offenses in this state. Lascallette further testified that it was within the officers' discretion to determine the methodology by which the checkpoint was conducted at the scene . Though neither Lascallette nor Phipps could testify as to how, in fact, the Firetower Road checkpoint was conducted, both offered testimony as to how such checkpoints were usually conducted.
Lascallette and Webb met on Firetower Road that night as planned . They were joined by patrol officer Oxendine (“Oxendine”). Lascallette acknowledged that since all three officers were patrol officers, no particular person was “in charge” of the checkpoint . Where they met, Firetower is a three-lane road with an eastbound lane, a westbound lane, and a center turn lane . Webb and Oxendine positioned their patrol cars back to back in the center turn lane, activated their patrol cars' blue lights and headlamps, and placed flares on the road in front of their cars . No signs were erected to indicate that a checkpoint was in progress . Lascallette estimated that a vehicle approaching from the east could see the patrol cars from three-quarters of a mile away . Lascallette decided to position his car as a “chase vehicle” that would conduct “investigatory stop[s]” of “anyone who turned around on [Webb and Oxendine][.]” Lascallette testified that the use of a chase vehicle was standard operating procedure. Accordingly, Lascallette parked his car facing north toward Firetower on Dudley's Grant Drive, a road intersecting Firetower four to five hundred yards to the east and with a clear view of the checkpoint's roadblock . Within minutes of positioning himself on Dudley's Grant, Lascallette observed Defendant's car heading west on Firetower approaching the roadblock . As Defendant approached Dudley's Grant, she “slowed abruptly,” and, without signaling, turned south onto Dudley's Grant from the westbound lane of traffic “crossing the turn lane.” Lascallette “fell in behind” Defendant and activated his blue lights . Defendant parked in front of the second or third apartment building on the left side of Dudley's Grant, exited the vehicle, and walked toward one of the apartments . Lascallette parked his car with his blue lights flashing, approached Defendant, and said “excuse me.” Defendant then stopped walking toward the apartment and turned toward Lascallette . Lascallette testified that Defendant's driving and her exit from the car were not “all [that] out of the ordinary[,]” and that he had stopped her because “she was avoiding a checkpoint.” Noticing that Defendant was wearing pajamas and smelled of alcohol, Lascallette asked Defendant if she had been drinking . Defendant admitted that she had been drinking , and Lascallette asked her to participate in field sobriety tests.
Defendant immediately requested a pre-arrest test . In response, Lascallette told Defendant he “wasn't sure [he] even wanted to pursue charges” and “asked her if she wanted to take the field sobriety tests [so that he] could decide what [he] wanted to do with her[.]” Defendant then submitted to the field sobriety tests . After administering the tests, Lascallette explained the pre-arrest test procedures and asked Defendant if she still wanteda pre-arrest test . Defendant answered in the affirmative and was voluntarily transported by Lascallette to the Pitt County Detention Center. An Intoxilyzer 5000's analysis of Defendant's breath revealed that Defendant had a blood alcohol concentration of twelve one-hundredths grams of alcohol per 210 liters of breath (.12) . Thereafter, Lascallette issued Defendant a citation for driving while impaired.

ANALYSIS

Defendant first argues that the trial court erred in concluding that she does not have standing to challenge the checkpoint's constitutionality. We agree.
“Our review of a denial of a motion to suppress by the trial court is 'limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.'” State v. Barden, 356 N.C. 316, 340, 572 S.E.2d 108, 125 (2002) (quoting State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982)), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). According to the trial transcript, Judge Griffin made findings of fact and conclusions of law in a written order denying Defendant's motion to suppress . No such order appears in the record on appeal. (See footnote 1) Thus, our review is limited to whether Judge Griffin's finding of fact, announced from the bench,that Defendant was not stopped by the checkpoint is supported by competent evidence and, if so, whether that finding supports his conclusion of law that Defendant does not have standing to challenge the checkpoint's constitutionality.
We first address the State's contention that Defendant was “never 'stopped.'” (Emphasis added.) The Fourth Amendment of the United States Constitution “prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273, 151 L. Ed. 2d 740, 749 (2002). Accordingly, in order to prevail on a motion to suppress, a defendant must first establish that she was “stopped” within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, reh'g denied, 448 U.S. 908, 65 L. Ed. 2d 1138 (1980). A stop does not occur “simply because a police officer approaches an individual and asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434, 115 L. Ed. 2d 389, 398 (1991). A stop occurs when, given the totality of the circumstances, a reasonable person would not feel free to leave. Mendenhall, supra; California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690 (1991); State v. Campbell, 359 N.C. 644, 617 S.E.2d 1 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
In this case, Lascallette seized Defendant within the meaning of the Fourth Amendment. Lascallette “fell in behind” Defendant's vehicle and activated his blue lights as soon as she turned downDudley's Grant. Defendant either ignored or did not see Lascallette' s vehicle behind her, parked, and exited her car. As she was walking away, Lascallette approached her and got her attention. Lascallette' s blue lights were still activated when Defendant turned toward him. A reasonable person, at 2:30 in the morning, would not feel free to leave upon being approached as Defendant was by a uniformed officer whose patrol car's blue lights were activated behind him. Defendant submitted to Lascallette' s show of authority. We thus conclude that Defendant was seized within the meaning of the Fourth Amendment when she stopped walking toward the apartment in response to Lascallette' s presence and request.
We next address Defendant's standing to challenge the constitutionality of the stop. In State v. Foreman, 351 N.C. 627, 527 S.E.2d 921 (2000), our Supreme Court reaffirmed the long- standing rule that “'[w]hen an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries.'” Id. at 630, 527 S.E.2d at 923 (quoting State v. Pearson, 348 N.C. 272, 275, 498 S.E.2d 599, 600 (1998)). “'[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion.'” State v. Thompson, 296 N.C. 703, 706, 252 S.E.2d 776, 779 (quoting Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 906 (1968)), cert. denied, 444 U.S. 907, 62 L. Ed. 2d143 (1979)). Where police officers conduct motor vehicle checkpoints,
it is reasonable and permissible for an officer to monitor a checkpoint's entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in light of and pursuant to the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.
Foreman, 351 N.C. at 632-33, 527 S.E.2d at 924.
In this case, according to his undisputed testimony, Lascallette stopped Defendant “pursuant to . . . the checkpoint plan,” not “in light of and pursuant to the totality of the circumstances[ .]” Id. Lascallette testified that his job as the checkpoint's chase vehicle officer was to conduct “investigatory stop[s]” of “anyone who turned around on [Officers Webb and Oxendine]” (emphasis added), and that he only stopped Defendant because “she was avoiding a checkpoint.” (See footnote 2) Lascallette pointed to no “specific and articulable facts” other than Defendant's turn down Dudley's Grant that warranted his stop. He did not stop her because she turned across the center turn lane, because of how she drove down Dudley's Grant, or because of the manner in which she exited her vehicle. He stopped her based on the systematic plan ofthe checkpoint. It necessarily follows, and we so hold, that when a defendant is stopped pursuant to a checkpoint plan, a defendant has standing to challenge the constitutionality of the plan by which she was “snared.”
We disagree with the State's contention that our Supreme Court held in State v. Mitchell, 358 N.C. 63, 592 S.E.2d 543 (2004), “that it is error to analyze the stop and arrest of someone eluding a checkpoint in terms of the legality of the checkpoint.” The defendant in Mitchell sped up as he approached a checkpoint's roadblock and drove through the roadblock, causing a police officer to jump out of the road to avoid being hit. The officer pursued and stopped the defendant a mile and a half down the road. The Supreme Court held in the alternative that (1) the defendant was stopped pursuant to a constitutional checkpoint, and (2) the officer had reasonable, articulable suspicion to stop the defendant. Id. Our holding in this case in consistent with the Supreme Court's analysis in Mitchell.
The trial court's finding that Defendant was not stopped by the checkpoint is not supported by the evidence. The trial court thus erred in ruling that Defendant did not have standing to challenge the constitutionality of the checkpoint plan. Accordingly, the order denying Defendant's motion to suppress is reversed. Because the trial court did not rule on the constitutionality of the checkpoint, the judgment entered upon the jury's verdict must be reversed. The case is remanded to the trial court for appropriate findings of fact and conclusions of law onthe constitutionality of the checkpoint and for entry of an order or judgment consistent with such ruling.
REVERSED AND REMANDED.
Judges McGEE and SMITH concur.


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Footnote: 1
Likewise, no such order appears in the trial court's file, according to the Pitt County Clerk of Superior Court's office.
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Footnote: 2
We are not convinced that Defendant did, in fact, turn down Dudley's Grant to avoid the checkpoint. We note that Defendant made her left turn onto Dudley's Grant at least 400 yards before the checkpoint's roadblock. At that distance, and in the absence of posted signs indicating that a checkpoint was ahead, we question whether Defendant was avoiding the checkpoint.

Need Warrant or Consent before Blood draw

California DUI criminal defense lawyers note:

Availability of warrant negates need to get blood draw without warrant or consent

STATE OF MINNESOTA
IN COURT OF APPEALS

A07-181


State of Minnesota,
Appellant,

vs.

Janet Sue Shriner,
Respondent.



Filed October 2, 2007
Affirmed

Minge, Judge
Dissenting, Willis, Judge



Dakota County District Court

File No. K8-06-1570





Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and



James C. Backstrom, Dakota County Attorney, Debra E. Schmidt, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, MN 55033 (for appellant)



Jeffrey B. Ring, Jeffrey B. Ring and Associates, The Interchange Tower, Suite 1690, 600 South Highway 169, Minneapolis, MN 55426 (for respondent)



Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.

S Y L L A B U S
Exigent circumstances, in addition to evidence of alcohol consumption, are constitutionally necessary to authorize a warrantless, nonconsensual blood draw for use in a prosecution for criminal vehicular operation.

O P I N I O N


MINGE, Judge



The state challenges the pretrial suppression of the results of a warrantless, nonconsensual blood draw, arguing that the presence of alcohol constitutes sufficient exigent circumstances to justify a blood draw. Because we conclude that under the facts present, there was insufficient evidence of exigent circumstances, we affirm.

FACTS


Respondent Janet Shriner was involved in a two-car motor-vehicle accident on May 8, 2006, at approximately 9:26 p.m. in Burnsville. Shriner drove her vehicle in the wrong lane of traffic and struck another vehicle head-on, injuring the driver of the other vehicle. Shriner fled the scene of the accident in her vehicle. Burnsville Police Officer Maksim Yakovlev was dispatched to find Shriner. Officer Yakovlev located and, with the assistance of another officer, forcibly stopped Shriner’s vehicle. Because Shriner did not comply with the officers’ requests to step out of her vehicle and its doors were locked, the officer broke a window, opened a door, and removed Shriner. Officer Yakovlev observed that Shriner’s eyes were bloodshot and glazed-over, that she smelled of alcohol, and that she could not stand on her own. He also observed that she was not injured.

Officer Yakovlev arrested Shriner and transported her to nearby Fairview Ridges Hospital. Once there, he directed hospital staff to make a blood draw. The draw was completed less than 45 minutes after the time of the arrest. Shriner’s consent was not sought or obtained and no implied-consent advisory was given to her. Officer Yakovlev testified that he was not “worried [that Shriner] was about to slip under the legal limit at any given moment,” and he did not attempt to obtain a search warrant.

Shriner was subsequently charged with seven criminal counts including first-degree driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2004), and criminal vehicular operation resulting in bodily harm, in violation of Minn. Stat. § 609.21, subd. 2b(4) (2004).

The district court held an omnibus hearing at which Shriner moved to suppress the blood-test results. Shriner conceded the existence of probable cause to seek the blood test, but asserted that without her consent or a warrant, the blood draw was improper. After granting Shriner’s motion to suppress the blood-test evidence, the district court dismissed the first-degree driving-while-impaired and criminal-vehicular-operation charges under Minn. Stat. §§ 169A.20, subd. 1(5) and 609.21, subd. 2b(4). This appeal by the state follows.

ISSUES

I. Did the suppression of blood-test results have a critical impact on the state’s case?



II. Did the district court err in suppressing the blood-test evidence?

ANALYSIS


The district court’s decision to suppress evidence is a question of law, and we “independently review the facts” to determine whether the decision is erroneous. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999). If the state appeals from a pretrial suppression order, it must “clearly and unequivocally show both that the [district] court’s order will have a critical impact on [its] ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotation omitted). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id.

I.

The first issue is whether the suppression of the result of the blood test will have a critical impact on the state’s case. In a critical-impact inquiry, we consider whether “the lack of the suppressed evidence completely destroys the state’s case” or “significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). Suppression of alcohol-level test results has a critical impact even if there is other evidence of intoxication. State v. Ault, 478 N.W.2d 797, 799 (Minn. App. 1991).

Here, the significance of the district court’s order suppressing the blood-test evidence is apparent. The district court determined that the charges of both criminal vehicular operation and first-degree driving while impaired required proof that Shriner’s blood-alcohol level was above .08. Because evidence of Shriner’s blood-alcohol level was suppressed, both charges were dismissed.[1] Thus, the suppression of this significant evidence has a critical impact on the state’s case.

II.

The next issue is whether the district court erred in suppressing the blood-test evidence. The state contends that exigent circumstances justified a warrantless draw of Shriner’s blood.

The United States Constitution’s Fourth Amendment guarantees “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. Our state constitution contains a parallel provision. Minn. Const. art. I, § 10. A search and seizure conducted without a warrant is per se unreasonable. State v. Othoudt, 482 N.W.2d 218, 221-22 (Minn. 1992). A warrant must be supported by probable cause. Minn. Const. art. I, § 10. “The requirement that a warrant be obtained is a requirement that inferences to support the search be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Schmerber v. California, 384 U.S. 757, 770, 86 S. Ct. 1826, 1835 (1966) (quotation omitted). But the warrant requirement is “‘subject . . . to a few specifically established and well delineated exceptions.’” State v. Hanley, 363 N.W.2d 735, 738 (Minn. 1985) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). “The state bears the burden of showing that at least one of the exceptions applies in order to avoid suppression of the evidence acquired from the warrantless search.” State v. Johnson, 689 N.W.2d 247, 251 (Minn. App. 2004), review denied (Minn. Jan. 20, 2005). One such exception is the existence of exigent circumstances. State v. Paul, 548 N.W.2d 260, 264 (Minn. 1996).

The administration of a blood test is considered a search that must comply with the Fourth Amendment. Schmerber, 384 U.S. at 767, 86 S. Ct. at 1834. In order to meet the requirements of the Fourth Amendment, a warrantless, nonconsensual blood draw must be supported by both probable cause and exigent circumstances. State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980). Probable cause to search exists when, given the totality of the circumstances, “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995). Here, Shriner stipulates that the deputy had probable cause to believe that she was under the influence of alcohol. Therefore, the sole disputed issue in this case is whether exigent circumstances justified the warrantless, nonconsensual blood draw.

When determining whether the situation presented exigent circumstances, we examine the totality of the circumstances. State v. Lohnes, 344 N.W.2d 605, 611 (Minn. 1984). But “[e]xigent circumstances can [also] be established . . . by a single factor.” Johnson, 689 N.W.2d at 251. Exigent circumstances exist when there is a danger of the “imminent destruction of evanescent evidence.” Paul, 548 N.W.2d at 264. Because alcohol in the blood has an evanescent quality, a warrant may not be necessary for a blood draw, depending on the amount of time that has elapsed since the accident and the difficulty in obtaining a warrant. See Schmerber, 384 U.S. at 770-71, 86 S. Ct. at 1836. In Schmerber, the Supreme Court concluded that exigent circumstances were present because the officer, who authorized a warrantless blood draw within two hours of an accident,

might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.



Id. at 770-71, 86 S. Ct. at 1835-36 (quotation and citation omitted). And in conducting an exigent-circumstances analysis, Minnesota cases have emphasized factors such as the evanescent nature of alcohol in the blood, the passage of time, and the potential unavailability of the defendant once he or she is taken to the hospital for treatment. See, e.g., State v. Oevering, 268 N.W.2d 68, 74 (Minn. 1978).

The state contends that exigent circumstances existed justifying the warrantless draw of Shriner’s blood. The state essentially takes the position that due to the evanescent nature of alcohol, the presence of alcohol in an individual reasonably suspected of an alcohol-related crime is an exigent circumstance per se justifying a warrantless blood draw. To support its position, the state cites numerous previous decisions of the supreme court and both published and unpublished opinions of this court, including Paul, 548 N.W.2d at 266; State v. Heaney, 689 N.W.2d 168, 173 n.2 (Minn. 2004); Aguirre, 295 N.W.2d at 79; and our decision in Johnson, 689 N.W.2d at 252. In Paul, the supreme court recognized the need for officers to “act as quickly as possible” to avoid the dissipation of blood-alcohol evidence. 548 N.W.2d at 267. In Heaney, the supreme court again noted the “natural exigency involved in obtaining blood-alcohol evidence.” 689 N.W.2d at 173 n.2. Although the Aguirre decision upheld the constitutionality of a nonconsensual, warrantless blood draw, the issues on appeal concerned the lack of an arrest and the interplay between the implied-consent law and the level of charges. 295 N.W.2d at 80-83. The Aguirre court did not consider the U.S. Supreme Court’s decision in Schmerber. And in Johnson, we concluded that, based on the facts of the case, the possible destruction of blood-alcohol evidence amounted to an exigent circumstance supporting a warrantless search. 689 N.W.2d at 252. Several other cases deal with the intricacies of the implied-consent law. See Frederic Bruno, The Drinking Driver in Minnesota § 2.10 (3rded. 2006).[2]

A careful review of our caselaw indicates that although there are comments which lend some support to the state’s position, none has expressly held that the presence of alcohol is a per se exigent circumstance sufficient to justify a warrantless blood draw. Other jurisdictions take conflicting positions on this issue. Compare State v. Rodriguez, 156 P.3d 771, 782 (Utah 2007) (declining to assign “per se exigent circumstance status” to warrantless blood draws, but upholding warrantless blood draw at issue in the case based on the totality of the circumstances), with State v. Cocio, 709 P.2d 1336, 1344-46 (Ariz. 1985) (allowing police to obtain blood without a warrant when blood has already been drawn for medical purposes), and State v. Bohling, 494 N.W.2d 399, 400 (Wis. 1993) (“[T]he dissipation of alcohol from a person’s blood stream constitutes a sufficient exigency to justify a warrantless blood draw”). A close reading of Schmerber and other United States Supreme Court decisions does not support the state’s position. See, e.g., Skinner v. Ry. Labor Excecutives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402 (1989) (upholding a warrantless blood draw in civil investigations of railroad accidents); South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916 (1983) (rejecting a claim that admission of evidence of refusal to submit to blood-alcohol test violates the privilege against self-incrimination).

In Rodriguez, the Utah Supreme Court reviewed the legal landscape on this issue, determined that Schmerber is still good law, and concluded:

In light of the foregoing, it is difficult for us to imagine that the United States Supreme Court could muster the assurance that the consequences of alcohol dissipation are so great and the prospects for prompt warrant acquisition so remote that per se exigent circumstance status be awarded to seizures of blood for the purpose of gathering blood-alcohol evidence. Accordingly, we decline to grant per se exigent circumstance status to warrantless seizures of blood evidence.



156 P.3d at 782. The Fourth Amendment represents a fundamental public policy of protecting personal privacy and dignity against unwarranted intrusion by the state. We decline the opportunity to reject the United States Supreme Court’s decision in Schmerber and to adopt a per se rule.

The question then becomes whether in this proceeding there are factors, together with the suspected presence of alcohol, that constitute exigent circumstances sufficient to justify the warrantless blood draw. We employ a totality-of-the-circumstances approach. Here, Shriner was arrested at her vehicle one-half mile from Fairview Ridges Hospital. Officer Yakovlev quickly transported Shriner to that hospital and a blood draw was made less than 45 minutes after she was last in the driver’s seat of her vehicle. He did not give her the implied-consent advisory or seek her consent to the draw. Officer Yakovlev did not believe that Shriner was injured, did not have responsibility for any other person injured as a result of the accident, and did not have a crime scene that required his attention. He was able to focus on acquiring evidence of Shriner’s intoxication. Based on a two-hour rule to establish guilt under Minn. Stat. §§ 169A.20, subd. 1(5) (2004), and 609.21, subd. 2b(4) (2004), the question becomes whether a warrant could reasonably have been obtained within a timeframe that would not have compromised the test results.[3]

The process for obtaining a search warrant is set out in the statutes and court rules. See Minn. Stat. §§ 626.04 to .18 (2006); Minn. R. Crim. P. 36. Although the prosecuting attorney often handles the application for a search warrant, law enforcement may apply directly to the judge. See, e.g., State, City of Minneapolis v. Cook, 498 N.W.2d 17, 18-19 (Minn. 1993); State v. McGrath, 706 N.W.2d 532, 537 (Minn. App. 2005). In this case, it was evening. The Burnsville police officers may have had to contact a prosecuting attorney at home to prepare a warrant request. Next, law enforcement would have had to locate a judge, request a warrant, obtain the warrant, and then provide evidence of the warrant to the staff at the Fairview Ridges Hospital to authorize the nonconsensual blood draw. This takes expeditious action.

Minnesota law authorizes the use of telephonic warrants. See Minn. R. Crim. P. 36.01. Caselaw has recognized the availability and validity of telephonic search warrants. See, e.g., State v. Lindsey, 473 N.W.2d 857 (Minn. 1991). In State v. Raines, 709 N.W.2d. 273, 275 (Minn. App. 2006), review denied (Minn. Apr. 18, 2006), police officers requested a telephonic warrant at 3:10 a.m. in Pine County. The warrant was executed within one hour and fifty minutes. Id. And in State v. Cook, 498 N.W.2d 17, 18-19 (Minn. 1993), a judge issued a telephonic search warrant less than one hour after the request for the warrant was made. Here, the state has made no showing that it would have been unable to obtain a timely telephonic search warrant.

The state argues that the existence of probable cause to believe that Shriner had violated the criminal-vehicular-operation statute justifies the warrantless blood draw. The state cites Minn. Stat. § 169A.52, subd. 1 (2004), which provides that “if a peace officer has probable cause to believe that the person has violated section 609.21 (criminal vehicular homicide and injury), a test may be required and obtained despite the person’s refusal.” “When an officer has probable cause to believe [that] a driver is intoxicated and has committed criminal vehicular operation, the officer may order the taking of a blood sample without obtaining the driver’s consent.” State v. Condon, 497 N.W.2d 272, 275 (Minn. App. 1993). But as we have already determined, the constitutional requirements for a nonconsensual search include both probable cause and either a search warrant or the existence of one of the warrant exceptions. Neither the statute nor the Condon case mentions the constitutional limits on searches and the necessity of exigent circumstances to dispense with search warrants.

We note that although the constitutional limits on searches was argued to and addressed by the district court, and is argued by the parties on appeal, the district court did not consider, and on appeal the parties do not address, the constitutionality of Minn. Stat. § 169A.52, subd. 1. We do not usually consider legal issues not properly raised. Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). But we assume that the legislature does not intend to violate the constitution. Minn. Stat. § 645.17(3) (2006). We therefore note that Minn. Stat. § 169A.52, subd. 1, does not refer to search warrants. We construe the subsection as not dispensing with the warrant requirement when a warrant can be obtained and is otherwise required by the constitution. Likewise, we consider the exigent-circumstances requirement as a part of the statute. In reaching this conclusion, we emphasize that the exigent-circumstances requirement is not a high threshold. The physical condition of the suspect and other persons, the evanescent nature of alcohol in the blood, and the time requirements needed to obtain a warrant and a blood test no doubt will combine to constitute exigent circumstances in most cases.

Here, the district court did not find that exigent circumstances existed to dispense with the warrant requirements. As already noted, the totality of the circumstances do not support an exigency determination. Officer Yakovlev testified that he was not concerned about the dissipation of alcohol from Shriner’s blood. The scene of the arrest was near the hospital; the time needed to make a blood draw was minimal. The officer was not faced with competing responsibilities. Equally significant, the district court did not find that obtaining a nighttime search warrant was time consuming or created exigent circumstances. The record is silent on the local warrant process and the state does not claim that there is any difficulty in obtaining nighttime or telephonic warrants. On this record, when neither the prosecution nor the district court judge was concerned with the officer’s ability to promptly obtain a warrant, and the district court held a warrant should have been obtained, we are unwilling to reverse the district court and assume that the time needed to obtain a warrant created an exigent circumstance.

The state argues that given the inherent stress that accompanies an accident and arrest situation, the officer should not have to make a judgment call on whether a warrant can be obtained. We do not suggest that the officer’s decision is easy. In determining whether a situation presented exigent circumstances, district courts give due consideration to the wide range of circumstances facing law enforcement. See, e.g., Rodriguez, 156 P.3d at 781 (emphasizing that serious nature of accident and injuries, together with significant evidence of driver’s impairment were “sufficient to establish that the interests of law enforcement outweighed . . . [the driver’s] privacy interests”). On this record where no extenuating circumstance other than the evanescent quality of alcohol is present, we conclude the district court did not err in holding that the police officer must obtain the driver’s consent or obtain a warrant.



D E C I S I O N

The Fourth Amendment of the United States Constitution precludes using the results of a warrantless, nonconsensual blood draw in a criminal prosecution unless law enforcement has probable cause to believe criminal conduct has occurred and there are exigent circumstances in addition to evidence of alcohol consumption. Because the record in this proceeding does not show the presence of necessary exigent circumstances, we affirm.

Affirmed.



Dated:



WILLIS, Judge (dissenting)

I respectfully dissent from the majority’s holding, which would require an on-the-scene assessment of the degree of exigency of the need for alcohol-concentration testing even when police believe a serious criminal offense has occurred.

As the majority points out, both probable cause and exigent circumstances are needed to justify the warrantless removal of blood. State v. Aguirre, 295 N.W.2d 79, 81 (Minn. 1980). The majority asserts that there is no authority holding that the presence of alcohol, and the need, therefore, to test for it, is by itself an exigent circumstance. But our supreme court has unmistakably implied that it is, even when the less-serious offense of DWI is the only crime suspected. See Tyler v. Comm’r of Pub. Safety, 368 N.W.2d 275, 278 (Minn. 1985) (stating that warrantless removal of blood is constitutional if there is probable cause to believe that the offense of DWI has been committed “and that the removal of the blood is necessary to preserve evidence of guilt”). The majority cites no Minnesota decision requiring a case-by-case assessment of the exigency of the need for alcohol testing that its decision imposes, even in DWI cases, which are less serious than the crime suspected in this case.

The majority’s holding rests on a highly selective reading of the caselaw in Minnesota. The majority notes that Aguirre fails to consider Schmerber. But that is because in Aguirre the supreme court treats as settled law its decision in State v. Oevering, 268 N.W.2d 68, 72 (Minn. 1978), in which it broadly construed Schmerber as recognizing exigent circumstances when “destruction of the evidence (i.e., the blood-alcohol content) is threatened.” This broad reading of Schmerber is essential to the development of implied-consent law in Minnesota. Without it, the supreme court could not have stated, as it did in Nyflot v. Comm’r of Pub. Safety, after citing Schmerber, that the legislature “could repeal the implied consent law and direct police officers to administer chemical tests against the suspect’s will.” 369 N.W.2d 512, 517 (Minn. 1985). That view of Schmerber leaves no room for the majority’s reading of the case as limited to its facts, a reading that the majority treats not just as an arguable interpretation of Schmerber but as its unchallenged holding.

In cases involving the more serious offense of criminal vehicular operation (or homicide), our supreme court has long held that police need not resort to the implied-consent statute, or otherwise obtain the driver’s consent, in order to constitutionally obtain a blood sample without a warrant. See State v. Speak, 339 N.W.2d 741, 744-45 (Minn. 1983); Aguirre, 295 N.W.2d at 82. In none of these cases has the supreme court held that the exigency of obtaining a blood sample depends on the degree of the driver’s apparent intoxication, the distance from a hospital, or the logistics of obtaining a telephonic search warrant, some of the factors cited by the majority. Requiring police officers to balance such factors on the scene poses an impossible burden.

Assessing the relevant “exigency” factors is not an easy task even for a court. For example, the driver’s apparent degree of intoxication is not as relevant as the majority suggests. The supreme court has emphasized that an officer need not have probable cause to believe that a driver is intoxicated in order to have blood drawn, only “probable cause to believe that administration of a blood alcohol test will result in the discovery of evidence relevant in the prosecution of a crime.” State v. Lee, 585 N.W.2d 378, 382 (Minn. 1998). And a driver cannot be too drunk for her alcohol concentration to be relevant evidence. The officer at the scene cannot gauge a driver’s alcohol concentration or know whether a prosecutor would prefer to charge her with negligent driving while impaired or negligent driving with an alcohol concentration over .08. The exigency exists because “the removal of the blood is necessary to preserve evidence,” Tyler, 368 N.W.2d at 278, not because the driver’s intoxication is a close question.

In summary, there is a bright-line rule that the majority opinion obscures. The obscuring of that line will cause confusion for the police. See State v. Schinzing, 342 N.W.2d 105, 109 (Minn. 1983) (noting that requiring case-by-case assessment of whether police can ask for a driver’s license “would create unnecessary confusion among the police”). Police officers should not have to balance likely intoxication levels against the logistics of telephonic warrants at the scene of a serious accident.





--------------------------------------------------------------------------------

[1] We note that five charges remained against Shriner. The parties do not argue and we do not consider whether the suppression order has a critical impact on those charges or whether the survival of those charges is relevant to the critical-impact question. We also note that this court has adopted the view that “even an order dismissing only one count of a multi-count complaint may have critical impact.” State v. Koenig, 649 N.W.2d 484, 487 (Minn. App. 2002).

[2] We emphasize that no implied-consent advisory was given to respondent and that we do not consider Minn. Stat. §§ 169A.50 - .53 (2006).



[3] “Generally, the rate by which an individual eliminates alcohol from his [or her] body is 0.015% per hour.” Kimberly S. Keller, Sobering up Daubert: Recent Issues Arising in Alcohol-Related Expert Testimony, 46 S. Tex. L. Rev. 111, 125 (2004).

BAC affected by Rubbing Alcohol Solutions

California DUI / drunk driving criminal defense lawyer news

German Magazine for Forensic Medicine, Vol.45, pp. 530 – 531 (1956)

From the Forensic Medicine Institute of the University of Basel

(Chairman: Private Docent Dr. med. J. Im Obersteg)

To the Question of Influence on Blood Alcohol Content by Rubbing Alcohol Solutions into Intact Skin

By

M. Luedin

(Received on June 30 1956)

Judging blood alcohol findings in traffic offences is being made increasingly more difficult, due to the more or less provable assertions of the drivers in question. By their assertions they want to make us believe that the alcohol content found in their blood cannot possibly be traced back to just the drinks they enjoyed.

This report is based on the following concrete (actual) case:

A motorcycle driver, who, due to an accident was stopped by police and subjected to a blood test, tried to explain the alcohol content (1.4 %) found in his blood in part by saying that, three hours before the relevant drive, a college from work had rubbed camphor spirits into his chest and back because of his cold.

In the forensic medicine literature at our disposal no information whatsoever could be found regarding the influence on blood alcohol content due to rubbing larger intact skin surfaces with alcohol-containing solutions. We therefore felt that we had to clarify this question via a mass (row) experiment. (Serial Trial) (Reihenversuch)

The trial was performed on 6 medical students who volunteered for it. As a rubbing agent we used spirit of camphor (70% alcohol) and regular commercial cologne (80% alcohol). A control blood sample was taken from each student before the start of the experiment.

Four of the students each had their backs from the shoulder to the belt thoroughly rubbed for approximately ¼ hour with 100 cm3 camphor solution and 2 students with 100 cm3 cologne each, until the skin was dry again. From two of the camphor massaged and one of the cologne rubbed trial subjects blood was taken from a vein in the arm one and two hours after the end of the application. From the other three trial subjects blood was taken 1 ½ and 2 ½ hours after the massage.

The alcohol content was determined using the here usual method of NICLOUX (as modified after Rouchat) titrimetricly and interferometricly1.

The test results are compiled in the following table, whereby we are, however, aware that all values are within the error margin of the method.

For practical purposes, all blood alcohol determinations (results) of our serial trial had a negative result. The blood alcohol content of all 6 test individuals was not influenced (affected) by rubbing a larger, intact skin surface with 70 – 80% alcohol solutions within 1 -2 ½ hours.

Table 1

Test Subject Blood Alcohol after:

NR. Age Height
cm
Weight kg Chest Crc.cm Control
%
Solution 1 Hour 1 ½ Hour 2 Hours 2 ½ Hours
1 25 186 85.6 96 0.05 Camphor 0.09 - 0.07 -
2 24 173 71.1 91 0.05 Camphor 0.08 - 0.07 -
3 26 180 69.2 87 0.07 Cologne 0.07 - 0.06 -
4 28 185 80.5 99 0.07 Camphor - 0.02 - 0.08
5 29 181 71.9 90 0.03 Camphor - 0.02 - 0.05
6 27 167 68.2 97 0.03 Cologne - 0.07 - 0.02

The given values refer to weight per mille.

Dr. M. Luedin, Basel

Forensic-medical Institute, Klingelbergstr. 82



1 Dr. R Mueller, chairman of the Canton Laboratory in Basel, and Dr. of chemistry J. Baeumler, who undertook the distillations and titrimetric determinations, I would like to thank very much for their assistance.

Obesity Surgery as a California DUI defefnse

California DUI criminal defense lawyer news

Bariatric surgery and alcohol consumptio: A doctor in California hurriedly put together an experiment. The following story summarizes his findings.

California DUI story

People who had obesity surgery got drunk after just one glass of red wine, researchers reported in a small study that was inspired by an episode on “The Oprah Winfrey Show.”

“A lot of people think they can have one glass of wine and be OK,” said Dr. John Morton, assistant professor of surgery at Stanford University Medical Center, who is the study’s lead author. “The concern here is they really can’t.”

Morton has performed more than 1,000 gastric bypass, or stomach stapling, surgeries. He said he routinely warns his patients about drinking alcohol, but it wasn’t until Winfrey discussed the issue on her show last October that the public really took notice. He said questions poured in. “I didn’t find a whole lot in the literature, so that prompted the study,” he said.

The research team gave 36 men and women - 19 who had obesity surgery and 17 who did not - five ounces of red wine each to drink in 15 minutes. Using a breathalyzer, their alcohol levels were measured every five minutes until it returned to zero. More than 70 percent of the surgery patients hit a blood-alcohol level of 0.08 percent, which qualifies as legally intoxicated in California, and two reached levels above .15, Morton said. By contrast, most of the control group had levels below 0.05 percent, the study reported.

Researchers also found that obesity patients took longer to sober up. After matching the control group with the patient group for age, gender and weight, they found the patients took 108 minutes on average to return to a zero blood-alcohol level versus 72 minutes for the control group. Morton said the obesity surgery patients don’t produce as much of an enzyme that breaks down alcohol because their stomachs are smaller. Also, the alcohol passes to their small intestine faster, speeding up absorption, he said.

Dr. Madelyn Fernstrom, director of the weight management center at the University of Pittsburgh Medical Center, said Morton’s results support alcohol warnings normally given to gastric bypass patients. However, she called drinking five ounces of wine in 15 minutes an “artificial” test. No one - let alone bariatric surgery patients - would be advised to drink that amount of alcohol so quickly, she said.


There are more serious issues involved. Yes, alcohol will be absorbed quicker. Alcohol may even be eliminated slower because of decreased first pass metabolism in the stomach. BUT... a 200 pound man cannot get to a .15 on a single glass of wine. (Standard size drink of wine is typically 4 oz., although Dr. Morton's group ingested 5 oz.)

What's interesting about that study was that the bypass group reached an average of .08 on that single glass of wine, but the control group reached a BrAC of .05. For most weight classes, even including woman, the amount consumed should have been .02 to .03... .04 for a very small woman.

So, irrespective of whether the breath test subject was part of the gastric surgery group or the control group, everyone was blowing much higher than their BAC would have reflected with blood testing.


One could conclude BAC is higher in gastric bypass cases because:

1. There is much less alcohol dehydrogenase in the gut to process alcohol before reaching the duodenum;

2. The more rapid transfer to the duodenum results in a faster alcohol absorption yielding more alcohol in at one time which equals higher BAC’s

But, during absorption the positive differential between arterial and venous blood should be greater yielding a greater absorptive phase overstatement of actual blood alcohol by breath testing.

This effect should be shorter in duration due to the shorter absorptive phase.

So, if the person blows within a very short time of last consumption the breath test should be even more inaccurate than usual, but this effect will last a much shorter time.

DUI Breath Test - new machine

New California DUI Breath Test Machine (?) soon

In the new 2007 article by A.W. Jones (Forensic Science International 168 pages 200-207) he shows his evaluation of a new breath alcohol testing machine that is able to reflect alcohol concentrations in arterial blood rather than in venous blood.

Dr. Jones concludes that their findings show that the breath alcohol concentration (BrAC) closely reflects the arterial blood alcohol concentration (ABAC), but not the venous blood alcohol concentration (VBAC), thereby confirming the physiological notion that there is no causal relationship between VBAC and BrAC and that the VBAC/BrAC ratio is a moving target.

In addition, Dr. Jones stated that their findings "highlight the problem of using VBAC to calculate a BAC/BrAC ratio" and that their findings highlight the problem of using the resultant BAC/BrAC ratio to calibrate breath alcohol instruments.



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Judge Removed from California Courts

California DUI criminal defense attorney news

California's Commission on Judicial Performance on Tuesday ordered an incorrigible clutter bug removed from the Riverside County bench.

Superior Court Judge Robert Spitzer's "inexcusable delays, failure to act and gross neglect of court orders demonstrates an unwillingness or inability to perform judicial functions," commission Chairman Frederick Horn wrote in the unanimous order.

Spitzer, a 17-year veteran of the Riverside courts, was charged with eight counts of judicial misconduct stemming from accusations that he backdated court orders, failed to dispose of cases promptly, filed "at least" 70 false salary affidavits and conducted improper ex parte conversations.

The judge's courtroom and chambers were routinely "in shambles," and because files were "strewn about without any discernible organization," they were often lost or misplaced, the commission found.

In hearings before a panel of special masters and the commission earlier this year, Spitzer conceded that he had trouble organizing his work but insisted that he was undergoing therapy and changing courtroom procedures to fix the problems.

But commissioners noted that, after they had threatened him in 2003 with a public admonishment for similar troubles, Spitzer had assured them that he would change his ways.

"We have no confidence in his ability to conform to standards of judicial conduct," the commission said.

Spitzer's attorney, Reginald Vitek of Seltzer Caplan McMahon Vitek in San Diego, did not return a phone call Tuesday.

Presiding Judge Richard Fields of the Riverside County Superior Court said Spitzer left his courtroom Tuesday morning after learning of the commission's order.

"He is absolutely one of the hardest-working judges I've ever met," Fields said. "The loss of such an experienced judicial officer at this very critical point in this court's history is going to be felt by many people."

Fueled by Riverside County's enormous population growth, the courts have a backlog of civil cases and officials have struggled to keep up with the criminal calendars. Chief Justice Ronald George recently dispatched two dozen judges from around the state to Riverside to help process felony cases.

Fields said he's asked the Administrative Office of the Courts for an assigned judge to take on Spitzer's courtroom.

Spitzer, 58, cited the county's crushing caseload as one of the reasons he fell behind in his work. But commissioners said it was more than the judge's "chronic state of disorganization" that led to his troubles.

Investigators said Spitzer appeared to backdate his signature on numerous orders before giving them to his clerk for processing. The commission found that in one case, City of Moreno Valley v. Southern California Association of Governments (SCAG), Spitzer received a proposed judgment on May 6, 2003 but didn't act until June 9, 2004, when he signed the judgment, backdated the document July 3, 2003 and file-stamped it July 7, 2003.

An appellate court tossed out SCAG's appeal in August 2004 on the grounds that agency leaders had waited too long -- 13 months according to Spitzer's signature -- to file. SCAG has not resubmitted their appeal.

In another case, Spitzer forgot to file a decision entirely. The judge heard a small claims case in 1996 and, despite numerous complaints from the parties involved, never issued a ruling. It was only after the plaintiff's mother, a potential juror in an unrelated case, complained to Spitzer in 2002 that Spitzer conducted a new trial and finally issued a ruling.

Commissioners said Spitzer's delays in closing cases led him to file false affidavits saying that he had no cases outstanding for more than 90 days, something judges must do regularly to receive their paychecks.

The commission also criticized Spitzer for improper behind-the-scenes meddling in cases. In 2004, the judge lobbied prosecutors to charge a defendant with manslaughter and not murder in a DUI case. The district attorney declined and after a jury deadlocked, Spitzer brought the victim's mother into his office and, according to investigators, encouraged her to persuade the DA to pursue manslaughter charges.

Spitzer told the special masters that he was only trying to comfort and to educate the mother and that he never meant to suggest that she lobby the prosecutor for reduced charges.

"Attempting to convince a mother whose child was killed by a drunk driver that her child's death was unintentional by reference to Penal Codes, legal terminology, and sentence calculations reflects an alarming lack of sensitivity in addition to being extraordinarily inappropriate and unjudicial," Horn wrote on behalf of the commission.

Spitzer is the third judge the commission has ordered removed from office in the last 10 months. Santa Barbara County Superior Court Judge Diana Hall was ousted in December 2006 after the commission found that she had violated campaign finance laws, received two misdemeanor convictions for DUI and improperly questioned a prosecutor's motives. And commissioners removed Monterey County Superior Court Judge Jose Velasquez in April for denying defendants due process, making inappropriate comments in court and improperly issuing bench warrants.

California DUI with .15 BAC enhances penalties - NFL star gets 12 days jail

California DUI criminal defense attorneys often face the excessive BAC enhancement allegation, which can trigger jail time.

A Scottsdale judge on Tuesday sentenced Tampa Bay Buccaneer tight end Jerramy Stevens to 12 days in jail and $3,160 in fines following his March arrest here for drunk driving and other traffic violations.

Judge B. Monte Morgan immediately stayed the sentence pending the outcome of an appeal expected by James Nesci, Stevens' Tucson lawyer.

Before Tuesday's sentencing, Nesci said the appeal to Maricopa County Superior Court could void Stevens' sentence, or at least delay it until after the NFL season, which ends Feb. 3 with the Super Bowl in Glendale.

Stevens could have spent as many as 30 days in jail. But Morgan suspended 18 of those days, in part, because Stevens is attending a required National Football League rehabilitation program.

That program includes more than 100 hours of one-on-one sessions with a medical doctor.

"He has to do it if he wants to play, and he is doing it," Nesci said.

Stevens showed up for Tuesday's sentencing, but skipped the verdict in September to practice in Tampa Bay for the season opener against his former team, the Seattle Seahawks.

Stevens' blood-alcohol content was 0.204 percent, nearly three times the 0.08 percent legal limit, when he was arrested. Scottsdale police stopped him about 2:30 a.m. March 13 after he was spotted driving erratically along Indian School Road near 84th Street.

His 0.204 percent BAC, put him in the extreme DUI category.

Stevens, of Bellevue, Wash., told Scottsdale police he had "four or five" margaritas before he was stopped. And officers described his eyes as "bloodshot" and half-closed.

DUI vehicular manslaughter case in California

California DUI criminal defense lawyer news

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

JESSICA ROSE BINKERD,

Defendant and Appellant.
2d Crim. No. B198470
(Super. Ct. No. 1213963)

(Santa Barbara County)


Jessica Rose Binkerd appeals from the judgment entered following her plea of no contest to vehicular manslaughter without gross negligence (count 1, Pen. Code,

§ 192, subd. (c)(3))1 and driving under the influence of alcohol causing injury (count 2, Veh. Code, § 23153, subd. (a)). She admitted the special allegations of causing injury to more than one victim (Veh. Code, § 23558) as to both counts and causing great bodily injury (§ 12022.7, subd. (a)) as to count 2. The trial court sentenced her to five years four months in state prison on count 2 including enhancements, and stayed imposition of sentence on count 1. (§ 654.)

Appellant contends the trial court improperly entered judgment on count 2 because it is necessarily a lesser included offense of count 1, and that the prosecutor committed misconduct by arguing to the court that she was ineligible for probation. We conclude that driving under the influence of alcohol causing injury (count 2) is a necessarily lesser included offense of vehicular manslaughter without gross negligence (count 1). Accordingly, we reverse the conviction on count 2 and remand for resentencing.

Factual and Procedural Background

On August 6, 2006, appellant attended a party in Santa Barbara at which she consumed alcohol. Appellant offered Alexander Baer a ride home and left the party at 1:30 in the morning, appellant driving and Baer in the front passenger seat. On her way home, appellant veered into the northbound lane of traffic on Highway 154, hitting Sara Maynez's car head-on. Alexander Baer was killed; Sara Maynez and appellant were injured. Approximately one hour after the collision, appellant's blood alcohol level was 0.20 percent.

Appellant was charged in the amended complaint with vehicular manslaughter without gross negligence (count 1, § 192, subd. (c)), driving under the influence of alcohol causing injury (count 2, Veh. Code, § 23153, subd. (a)), and driving with a blood alcohol content of 0.20 percent or higher causing injury (count 3, Veh. Code, § 23153, subd. (b)).2 The named victim in each count was Alexander Baer, the passenger in appellant's car. The complaint further alleged that appellant caused bodily injury to more than one victim (i.e., Sara Maynez), while committing the offenses charged in all three counts, within the meaning of Vehicle Code section 23558. Attached to counts 2 and 3 were special allegations of great bodily injury to Alexander Baer. (§ 12022.7, subd. (a).) Appellant pled no contest to counts 1 and 2 and admitted the special allegations. Count 3 was dismissed on the district attorney's motion. The court sentenced appellant to the low term of sixteen months on count 2 (Veh. Code, § 23554), plus a three-year enhancement for causing great bodily injury to Alexander Baer (§ 12022.7), plus a one-year enhancement for the injury to Sara Maynez (Veh. Code, § 23558), for a total of five years four months in prison. Sentencing on count 1 was stayed pursuant to section 654.

Validity of Conviction for Violating Vehicle Code Section 23153, Subdivision (a)

Appellant contends the trial court erred in convicting her of count 2, driving under the influence of alcohol causing injury (Veh. Code, § 23153, subd. (a)), because it is a necessarily lesser included offense of vehicular manslaughter without gross negligence (§ 192, subd. (c)(3)). We agree.

A defendant cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act. (People v. Pearson (1986) 42 Cal.3d 351, 355.) In deciding whether an offense is necessarily included in another, we apply the elements test, asking whether "'"all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense." [Citation.]'" (People v. Lopez (1998) 19 Cal.4th 282, 288; People v. Sloan (2007) 42 Cal.4th 110, 113; People v. Izaguirre (2007) 42 Cal.4th 126, 128; People v. Reed (2006) 38 Cal.4th 1224, 1227.) In other words, "if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former." (Lopez, supra, at p. 288; Sloan, supra, at p. 116.) At the time of appellant's offense, section 192 subdivision (c)(3) defined vehicular manslaughter as "[d]riving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in violation of Section 23140, 23152, or 23153 of the Vehicle Code and in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence." Under Vehicle Code section 23153, subdivision (a), "It is unlawful for any person, while under the influence of any alcoholic beverage or drug, . . . to drive a vehicle and concurrently do any act forbidden by law or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver."

In pleading no contest to violating section 192 subdivision (c)(3), appellant necessarily admitted violating Vehicle Code section 23153, subdivision (a). Both offenses require proof appellant was driving under the influence of alcohol when she violated the law, in this case crossing the double yellow lines in violation of Vehicle Code section 21460, subdivision (a). The two statutes differ to the extent that section 192, subdivision (c)(3) is committed when another person dies as a result of these acts, while Vehicle Code section 23153, subdivision (a) is committed when the other person is injured.

In People v. Miranda (1994) 21 Cal.App.4th 1464, the Court of Appeal held that "Vehicle Code section 23153, subdivision (a) is necessarily included in Penal Code section 191.5 [gross vehicular manslaughter]. One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred." (Id., at p. 1468.) Here, appellant pled no contest to both counts 1 and 2, which had the same named victim, Alexander Baer. Appellant could not commit a violation of count 1 (§ 192, subd. (c)(3)), without injuring that same victim, as charged in count 2.

The People argue that Vehicle Code section 23153 is not necessarily included in section 192, subdivision (c)(3), because a violation of section 192 could be predicated upon the violation of Vehicle Code section 23140. Vehicle Code section 23140, subdivision (a), makes it "unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle." The People argue that the "under the influence" element of Vehicle Code section 23153, subdivision (a), is an additional element not required for a conviction under Vehicle Code 23140. (See McDonald v. Department of Motor Vehicles (2000) 77 Cal.App.4th 677, 686, 688 [the term "under the influence" for purposes of Vehicle Code section 23152 means the consumption of an alcoholic beverage has impaired the driver's mental and physical abilities to such a degree that the driver no longer has the ability to drive the vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances].)

The People's argument is unconvincing. First, contrary to the People's contention, Vehicle Code section 23140 does include an "under the influence" element. For example, in cases where a driver under the age of 21 is charged with violating Vehicle Code section 23140, but no chemical test is conducted to determine the blood alcohol content, the trial court must make a finding of "under the influence," as stated in subdivision (b) of section 23140.

Second, section 192, subdivision (c)(3) is written in the disjunctive. The statute is violated if one drives a vehicle in violation of either Vehicle Code section 23140, 23152, or 23153. The statute does not provide that one has to violate all three sections of the Vehicle Code to commit the offense of vehicular manslaughter. Here, appellant was charged with violating section 192, subdivision (c)(3), by driving a vehicle in violation of Vehicle Code sections 23152 and 23153. She was over the age of 21 at the time and could not be charged with violating Vehicle Code section 23140.

Third, accepting the People's argument would mean that there could never be a lesser included offense of section 192, subdivision (c)(3). This is incorrect. In cases where one victim dies from an alcohol-related accident due to a violation of Vehicle Code sections 23140, 23152, or 23153, the Vehicle Code violation would always be a lesser-included offense of section 192, subdivision (c)(3). In this case, the prosecution charged appellant with violating Vehicle Code section 23153 and section 192, subdivision (c)(3), by injuring and causing the death of the same victim. As in Miranda, "[t]he People do not suggest how a victim could be killed by a moving vehicle and not incur injury in the process. We cannot envision such a scenario, nor is one created by a hypertechnical reading of Penal Code section [192, subd. (c)(3)]." (People v. Miranda, supra, 21 Cal.App.4th at p. 1468.)

Fourth, in a related context, the Legislature expressly recognizes that a conviction for violating section 192, subdivision (c)(3), necessarily encompasses a violation of Vehicle Code section 23153. Vehicle Code section 13350.5 requires mandatory license revocation for certain habitual traffic offenders. Section 13350.5 provides: "Notwithstanding Section 13350, for the purposes of this article, conviction of a violation of paragraph (3) of subdivision (c) of Section 192 of the Penal Code is a conviction of a violation of Section 23153."

Finally, the Legislature has provided a specific penalty for a conviction of manslaughter occurring as a result of driving while intoxicated without gross negligence, i.e., former section 192, subdivision (c)(3). "The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply." (People v. Jenkins (1980) 28 Cal.3d 494, 505; People v. Coronado (1995) 12 Cal.4th 145, 153-154.) A conviction for violating section 192, subdivision (c)(3), is not a strike, a violent felony, or a serious felony under section 1192.7, subdivision (c). In addition, the great bodily injury enhancement under section 12022.7 is inapplicable to a conviction for section 192, subdivision (c)(3). (See § 12022.7, subd. (g) [this enhancement "shall not apply to murder or manslaughter"].) Sentencing appellant on the lesser included offense of Vehicle Code section 23153 with a great bodily injury enhancement under section 12022.7 circumvents the statutory sentencing scheme for vehicular manslaughter. It also converts what the Legislature has designated as a non-strike offense into a strike with the consequences of a reduction in prison credits. (§§ 667, subd. (c)(5); 667.5, subd. (c)(8); 2933.1, subd. (a); 1192.7, subd. (c)(8).)

We conclude the reasoning in Miranda is dispositive. Under the statutory elements test, the violation of Vehicle Code section 23153 is necessarily a lesser included offense of section 192, subdivision (c)(3), and appellant cannot be convicted of violating both statutes. Appellant's conviction on count 2, for violating Vehicle Code section 23153, subdivision (a), cannot stand.

Prosecutorial Misconduct

The probation department recommended that appellant be placed on probation with terms and conditions, including serving 270 days in jail. In the prosecution's sentencing memorandum, the People erroneously argued that appellant was presumptively ineligible for probation. At the sentencing hearing, neither the prosecutor nor the defense addressed the prosecution's erroneous statement in the sentencing memorandum. Following the imposition of the prison sentence, appellant moved to vacate the conviction and withdraw the pleas of nolo contendere and/or to correct the illegal sentence. Appellant argued in part that she had been prejudiced by the prosecution's erroneous argument concerning probation eligibility. At the hearing on the motion, the prosecutor conceded the error in the sentencing memorandum. The trial court denied the motion, clarifying that it had not considered her ineligible for probation at the time of sentencing.

Appellant contends the prosecutor committed misconduct by erroneously arguing to the trial court in the sentencing brief that she was not eligible for probation. Because we are remanding this case for resentencing on count 1, we need not address this issue.

Disposition

Appellant's conviction for driving under the influence causing injury (count 2) is reversed and the enhancements alleged for count 2 are stricken. We remand this case with instructions to resentence appellant consistent with this opinion.3 In all other respects, the judgment is affirmed.

CERTIFIED FOR PUBLICATION.

PERREN, J.

We concur:

GILBERT, P.J.

YEGAN, J.


Joseph Lodge, Judge

Superior Court County of Santa Barbara

______________________________

S.R. Balash, Jr., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, John R. Gorey, John Yang, Deputy Attorneys General, for Plaintiff and Respondent.



1 All statutory references are to the Penal Code unless otherwise stated. Effective January 1, 2007, the offense formerly specified in section 192, subdivision (c)(3), vehicular manslaughter while intoxicated, was replaced by section 191.5, subdivision (b). Hereafter, all references to section 192, subdivision (c)(3), are to the former section.



2 Under Vehicle Code section 23153, subdivision (b), this offense is complete when one operates a motor vehicle with a blood alcohol level of .08 percent or higher.



3 Appellant concedes that the Vehicle Code section 23558 enhancement properly applies to count 1 because she caused injury to more than one person.

Simulated Drunk Driving Accident at California High School

California DUI criminal defense lawyer news

Piedmont California High School students got a lesson about the consequences of drinking and driving Monday during a simulated fatal California dui / drunk driving accident.

The simulated DUI / California drunk driving accident, part of the national Every 15 Minutes anti-drunk driving program, was coordinated with help from the Piedmont Fire Department, the Piedmont Police Department, CALSTAR and Eden Hospital.

High School students played the roles of drivers and victims involved in the fatal car crash. Emergency crews rescued survivors via helicopter to emergency rooms.

One student was pronounced dead on scene, and the student acting as the driver was given a sobriety test before being arrested and taken to jail. http://cbs5.com/local/local_story_274145548.html

California DUI Lawyer website announcement

October 2, 2007

San Diego California drunk driving criminal defense lawyer news

San Diego California DUI Lawyer Center Announces New Web Site Design

PR-GB.com (press release) -

California DUI Criminal Defense Attorney Specialist Rick Mueller, of the San Diego Country DUI Law Center, announces the redesign of the California Drunk Driving web site, http://www.sandiegoduilawyer.com

California DUI checkpoint nets 1 Drunk Driving arrest

California DUI criminal defense attorney news

The Visalia Police Department made one California DUI / driving-under-the-influence arrest Saturday after checking 398 vehicles.

Twenty citations were also issued as a result of the checkpoint — including 14 citations for drivers with no license and six drivers with suspended or revoked licenses.

One arrest was made for narcotics, and three additional California DUI field sobriety tests were administered by police.