New California DUI / Drunk Driving Case re: Rising BAC

California DUI lawyer case

Filed 11/27/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

OSCAR ADRIAN BELTRAN,

Defendant and Appellant.
A116944
(San Francisco County

Super. Ct. No. 2203403)


I. INTRODUCTION

Appellant Oscar Adrian Beltran (appellant) was convicted by a jury of driving under the influence of alcohol (count one) and driving with a blood-alcohol content (BAC) of 0.08 percent or more (count two) (Veh. Code, § 23152, subds. (a), (b), respectively). He appeals only from the conviction on count two, contending that the trial court erred by instructing the jury with CALJIC No. 12.61.1. This instruction allowed the jury to infer that appellant had a BAC of at least 0.08 percent while he was driving if a blood-alcohol test administered within three hours of the time he stopped driving revealed a BAC of 0.08 percent or more.

We reject appellant’s broad claim that it is improper to instruct a jury as to a permissive inference whenever there is evidence introduced at trial that rebuts the inference. However, we agree with appellant that, based on the evidence presented at trial, there was no rational connection between the proved fact and the fact to be inferred sufficient to justify giving CALJIC No. 12.61.1. Because the error was prejudicial, we reverse the conviction as to count two.1

II. PROCEDURAL AND FACTUAL BACKGROUNDS

On February 6, 2005, at approximately 3:00 a.m., appellant was stopped by a California Highway Patrol officer for speeding and weaving between lanes. The officer smelled a strong odor of alcohol emanating from inside appellant’s car, and appellant admitted that he drank a “couple of beers” earlier that evening. At about 3:15 a.m., the officer proceeded to administer a number of field sobriety tests. Appellant’s performance on these tests indicated to the officer that he was intoxicated.

Appellant agreed to take a roadside breath test using a Preliminary Alcohol Screening (PAS) device. Two PAS tests were administered at 3:46 a.m. and 3:48 a.m., respectively, and both recorded a BAC of 0.08 percent. At trial, the parties stipulated that these PAS tests results were reliable. Upon his arrival at the police station, and after the required 15-minute observation period, appellant submitted two additional breath samples for further blood-alcohol screening using an intoxilyzer device. The results of both of these tests, the first taken at 4:12 a.m., indicated a BAC of 0.10 percent.

On February 8, 2005, appellant was charged with three misdemeanor violations: driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count one), driving with a BAC of 0.08 percent or more (Veh. Code, § 23152, subd. (b); count two), and driving with a suspended license (Veh. Code, § 14601.1, subd. (a); count three). The matter proceeded to a jury trial during which the court granted appellant’s motion for judgment of acquittal on count three.

As to count two, both parties presented expert testimony which suggested that appellant’s BAC was below the legal limit at the time he was driving. The prosecution’s expert witness, criminalist Lois Woodworth, hypothesized that, assuming the reliability of the earlier PAS test results, appellant’s BAC was around 0.068 percent when he was stopped. When the results of the intoxilyzer tests were considered, Woodworth estimated that appellant’s BAC would have been within the range of 0.068 to 0.095 percent when he was stopped.2

The defense expert, forensic toxicologist Kenneth Mark, estimated that appellant had a BAC of 0.06 percent when he was stopped, assuming the reliability of both the PAS tests and the later intoxilyzer tests. He furthermore disagreed with the upper end of the range presented by Woodworth, because it would require appellant’s BAC to decrease and then to increase again over a short period of time without further alcohol consumption.

At the conclusion of the evidence, the court instructed the jury using CALJIC No. 12.61.1, which provides as follows: “If the evidence establishes beyond a reasonable doubt that (1) a sample of defendant’s blood, breath or urine was obtained within three hours after he operated a vehicle and (2) that a chemical analysis of the sample establishes that there was 0.08 percent or more, by weight, of alcohol in the defendant’s blood at the time of the performance of the chemical test, then you may, but are not required to, infer that the defendant drove a vehicle with 0.08 percent by weight, of alcohol in the blood at the time of the alleged offense.”

The record indicates that the jury returned with a question regarding the instruction’s reference to the three-hour time period in CALJIC No. 12.61.1.3 The jury resumed its deliberations, and thereafter returned a verdict convicting appellant as to both counts one and two.

On September 15, 2005, the trial court suspended imposition of sentence and placed appellant on three years’ probation. Appellant filed a notice of appeal on October 13, 2005. On February 2, 2007, the appellate division of the San Francisco Superior Court affirmed appellant’s convictions but remanded the matter to the trial court for resentencing. The appellate division also denied appellant’s subsequent petition for rehearing and to transfer the appeal to this court. We granted appellant’s petition for transfer filed directly with the Court of Appeal on March 15, 2007.

III. DISCUSSION

A. CALJIC No. 12.61.1 May Properly Be Given Where There Is Evidence
Presented That Rebuts the Permissive Inference4

In order to convict appellant of violating Vehicle Code section 23152, subdivision (b), the prosecution must prove that (1) appellant drove a vehicle and (2) when driving, his BAC was 0.08 percent or more. As noted, CALJIC No. 12.61.1 permits the jury to infer that appellant drove a vehicle with a BAC of 0.08 percent or more if a breath sample taken within three hours of driving records a BAC of 0.08 percent or more.

Appellant contends on appeal that CALJIC No. 12.61.1 may not be given where there is evidence admitted at trial that rebuts the inference. If such evidence is presented by either party, “the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.” (Evid. Code, § 604.) Unless treated this way, appellant argues that the instruction lowers the prosecution’s burden of producing evidence, and shifts that burden improperly to the defendant.

The permissive inference allowed by CALJIC No. 12.61.1 originally derived from a mandatory rebuttable presumption contained in Vehicle Code section 23152, subdivision (b), and in section 604 of the Evidence Code.5 Section 604 states: “a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.” (Evid. Code, § 604, italics added.)

In People v. Roder (1983) 33 Cal.3d 491 (Roder) our Supreme Court considered an instruction containing mandatory, directive language given in the prosecution of a used goods dealer for receiving stolen property. In Roder, the jury was instructed that, if it found the foundational facts to be true, it “ ‘ . . . shall presume [guilty knowledge] unless from all the evidence you have reasonable doubt. . . .’ ” (Id. at p. 496.) The Roder court concluded that this mandatory, rebuttable presumption limited the jury’s freedom to assess independently all of the prosecution evidence in order to determine whether the facts of the particular case establish guilt beyond a reasonable doubt. Therefore, the Roder court held that a jury instruction phrased as a rebuttable presumption in a criminal case was unconstitutional. (Id. at p. 498.)

Roder also explained that this constitutional infirmity does not infect jury instructions permitting the jury to draw permissive inferences: “[A] carefully drafted instruction which places the inference in context and does no more than inform the jury that upon the prosecution’s proof of the four basic facts it is permitted—but not required—to infer guilty knowledge is fairly innocuous, for even without such an instruction a jury could, of course, reasonably infer that a secondhand dealer who fails to make reasonable inquiry when obtaining stolen property under suspicious circumstances knew that the property was stolen.” (Roder, supra, 33 Cal.3d at p. 506.) Furthermore, permissive inferences “enable the court to inform the jury of an inference which the Legislature—drawing on its general experience—has concluded can often reasonably be drawn from proof of the basic facts.” (Id. at p. 507.)

Our Supreme Court commented on the presumption/inference dichotomy more recently in People v. McCall (2004) 32 Cal.4th 175. “ ‘ “Permissive presumptions” are not really presumptions at all. Instead, they are simply inferences drawn from evidence. They do not shift the prosecution’s burden of production, and the jury is not required to abide by them. An instruction about a “permissive presumption” is really an instructed inference.’ ” (Id. at p. 183, fn. 5.)

West’s Committee on California Criminal Jury Instructions (the CALJIC Committee) amended CALJIC No. 12.61.1 in 1983 to provide only for a permissive inference. The phrase “ ‘ “should find” ’ ” was replaced by “ ‘ “may but are not required to infer” ’ ” leaving the trier of fact free to draw or reject the inference. The CALJIC Committee made this change believing it to be necessary to comply with the constitutional principles enunciated in Roder. (People v. Milham (1984) 159 Cal.App.3d 487, 505.)

Despite this change, appellant claims that the permissive inference allowed in CALJIC No. 12.61.1 is inapplicable, and the instruction should not be given, if other evidence is admitted at trial that rebuts the inference. In making this argument, he relies principally on People v. Moore (1998) 65 Cal.App.4th 933 (Moore). In Moore, the court held that the language limiting the use of presumptions in Evidence Code section 604 pertains as well to permissive inferences.6 (Id. at pp. 938-939.) Moore explained that because evidence was introduced at trial contradicting the inference, “the presentation of the required evidence places the issue before the jury for its determination based solely on the evidence presented, without regard to the presumption [citation], and without any reason to pinpoint a specific inference.” (Id. at p. 939.) Therefore, Moore held that it was error for the trial court to use CALJIC No. 16.152.

By parity of reasoning, appellant claims that because there was evidence indicating that his BAC was below the legal limit at the time that he was driving, the jury should not have been instructed with CALJIC No. 12.61.1. In addition to Moore, appellant refers us to the Judicial Council’s counterpart to CALJIC No. 12.61.1, jury instruction CALCRIM No. 2111. Unlike CALJIC No. 12.61.1, in CALCRIM No. 2111 the paragraph containing the permissive inference is bracketed. The Bench Notes to CALCRIM No. 2111 explain that, to avoid the prohibition against evidentiary presumptions criticized in Roder, that instruction was drafted as permitting only a permissive inference. Nevertheless, in the apparent belief that there was a need to conform this new instruction to the limitation contained in Evidence Code section 604, the Bench Notes further explain that “it is only appropriate to instruct the jury on a permissive inference if there is no evidence to contradict the inference. (Evid. Code, § 604.) If any evidence has been introduced to support the opposite factual finding, then the jury ‘shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.’ (Ibid.)” (CALCRIM No. 2111, Bench Notes, p. 146.)7

We agree with respondent that Moore and CALCRIM No. 2111 fail to recognize the important legal distinction between mandatory presumptions and permissive inferences. The holding in Moore is particularly puzzling because the opinion specifically acknowledges that CALJIC No. 16.152 was originally drafted as a mandatory rebuttable presumption, but had to be changed to a permissive inference in order to conform to Roder. (Moore, supra, 65 Cal.App.4th at pp. 937-938.) Accordingly, the Moore court initially concluded that there was nothing “facially wrong” with the revised instruction. (Id. at p. 936.)

However, Moore also cited the Use Note to CALJIC No. 16.152, which erroneously retained language from the time when the instruction provided for a mandatory rebuttable presumption: “ ‘Do not give this instruction if evidence has been received tending to prove that the failure to provide was not willful or was not without lawful excuse.’ ” (CALJIC No. 16.152, Use Note, p. 1092.) From this the court then concluded that as “the CALJIC Committee explains, the rebuttable presumption created by [Penal Code] section 270 is a presumption affecting the burden of producing evidence (People v. Sorensen (1968) 68 Cal.2d 280, 286-287), which means the presentation of the required evidence places the issue before the jury for its determination based solely on the evidence presented, without regard to the presumption (Evid. Code, § 604) and without any reason to pinpoint a specific inference. In this case, it was error to give CALJIC No. 16.152.” (Moore, supra, 65 Cal.App.4th at pp. 938-939.)8 By so concluding, the Moore court overlooked its earlier observation that the instruction had been changed from a mandatory rebuttable presumption to a permissive inference, and found error relying on principles which Roder makes clear apply only to rebuttable presumptions.

This appears to be the same error made by the drafters of CALCRIM No. 2111. Although the CALCRIM instruction, like CALJIC No. 12.61.1, now provides only for a permissive inference, the Bench Notes retain the cautionary language needed when the instruction had been cast as a mandatory rebuttable presumption: “[I]t is only appropriate to instruct the jury on a permissive inference if there is no evidence to contradict the inference. (Evid. Code, § 604.) If any evidence has been introduced to support the opposite factual finding, then the jury ‘shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.’ (Ibid.)” (CALCRIM No. 2111, Bench Notes, p. 146.)

In summary, when used in appropriate cases, permissive inferences do not shift the burden of production or lower the prosecution’s burden of proof. Because they may or may not be drawn by the jury, they do not operate in an unconstitutionally pernicious manner. For these reasons, CALJIC No. 12.61.1 may be given regardless of whether there is other evidence admitted at trial “rebutting” the inference. However, the use of permissive inferences is not permitted in all cases. Therefore, we must also consider whether the evidence in this case supported giving CALJIC No. 12.61.1, and if not, what legal consequences attach to erroneous giving of the instruction.

B. The Permissive Inference in CALJIC No. 12.61.1 Was Not Rationally
Connected to the Proven Fact, and It Was Prejudicial Error
to Give the Instruction in This Case

The seminal case discussing the legal limits on the use of permissive inferences in criminal cases is Ulster, supra, 442 U.S. 140. That case involved a prosecution brought against the driver and passengers of a vehicle in which concealed weapons were found. Under New York law, the jury was instructed that the presence of a weapon was “presumptive evidence” of illegal possession by anyone in the vehicle. (Id. at p. 142.)9

The Ulster decision begins by noting that a determination of whether permissive inferences offend due process varies from case to case, and turns on the ultimate test of whether use of the “device” undermines the jury’s responsibility to find the ultimate facts beyond a reasonable doubt. (Id. at p. 156.) As to permissive inferences, the prosecution’s burden of proving guilt beyond a reasonable doubt is not improperly shifted from the prosecution to the defense unless, “under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissive inference to a jury, or its use by a jury, has caused the presumptively rational factfinder to make an erroneous factual determination.” (Id. at p. 157; see also People v. James (2000) 81 Cal.App.4th 1343, 1356.)

Put in slightly different language, “[a]lthough such an instruction does not shift the burden of proof, it violates due process ‘if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.’ [(Francis v. Franklin (1984)] 471 U.S. at [pp. ]314-315 . . . (citing [Ulster], supra, 442 U.S. 140, 157-163); [United States v.] Washington [(9th Cir. 1987)] 819 F.2d [221,] 225.” (United States v. Warren (9th Cir. 1994) 25 F.3d 890, 897, fn. omitted.)

The Ulster court then explained under what circumstances the “rational connection” between the proven fact and the inferred fact must be “beyond a reasonable doubt” and when that connection simply must be “more likely than not.” (Ulster, supra, 442 U.S. at pp. 165-167.) The court reasoned that in most cases, the inference is merely one piece of evidence the prosecution relies on to prove guilt beyond a reasonable doubt. In those instances, if the prosecution relies on a permissive inference as evidence of the defendant’s guilt, but offers other evidence of the defendant’s guilt, there need be only a “substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” (Id. at p. 166, fn. 28, quoting Leary v. United States (1968) 395 U.S. 6, 36, italics added.)

However, when an inference is the “sole and sufficient” proof of an element, the Supreme Court in Ulster determined that the reasonable doubt standard would apply. (Ulster, supra, 442 U.S. at p. 167.) This distinction makes sense. Where the permissive inference is the only evidence offered by the prosecution to prove an essential element of the offense, and the jury finds the defendant guilty, it necessarily follows that the jury relied solely on the inference in order to convict. Consequently, the presumed fact must follow from the proved fact beyond a reasonable doubt.

In this case, the sole evidence upon which the jury could have concluded that appellant had a BAC of 0.08 percent or greater when he was driving was the inference of that fact from a blood-alcohol test administered within three hours of driving that revealed a BAC of 0.08 percent or greater at the time of the test. Under Ulster, because the permissive inference was the sole evidence used to convict, the connection between the proved fact and the inferred fact had to be established beyond a reasonable doubt, in order to pass constitutional muster.

Here, the PAS tests administered at times significantly later than when appellant was stopped, which the parties stipulated were reliable, indicated a BAC of 0.08 percent. The later intoxilyzer tests showed a BAC of 0.10 percent. Thus, while in isolation either the PAS tests or the intoxilyzer tests were sufficient to allow for the inference permitted by CALJIC No. 12.61.1, together they show that appellant’s BAC was rising from the time he was stopped until the intoxilyzer tests were administered. This circumstance is a classic example of the well-recognized defense in DUI cases known as the “rising blood-alcohol” defense. (Helmandollar v. Department of Motor Vehicles (1992) 7 Cal.App.4th 52, 55; Taylor, California Drunk Driving Defense (3d ed. 2001) Forensic Chemist: Blood-Alcohol, § 11.1.1, pp. 610-611.)

The prosecution’s own expert testified concerning the effect of “rising alcohol”: “[R]ising alcohol basically means that a person’s blood alcohol concentration is increasing over time. And the defense part comes in, in that perhaps if a test was done at some time or period after the driving occurred, typically a longer period of time, like let’s say two hours, that possibly at the time of driving, the person’s actual BAC was below [0].08.”

Additionally, both parties’ expert witnesses hypothesized that, assuming the reliability of the PAS test results, appellant’s BAC was under 0.08 percent when he was driving. For example, the prosecution witness opined that, based on the relationship between the time appellant was stopped by police and the time of the PAS tests, those tests indicated that his BAC at the time of driving was approximately 0.068 percent. If one looks instead at the intoxilyzer tests administered at 4:12 a.m., that test indicated that appellant’s BAC at the time of driving was in the range of 0.06 to 0.09 percent.10 However, the prosecutor’s expert did not explain how, if the two sets of tests were taken together, and in light of his obviously rising BAC, appellant’s BAC could have been 0.08 percent or higher 45 minutes before the first PAS test was administered.

To the contrary, appellant’s expert opined that, if the two sets of tests are considered together, then “clearly” appellant’s BAC was below 0.08 percent when he was driving; probably in the order of 0.06 percent. While it was “possible” that his BAC could have gone down for the PAS tests, and then up again for the intoxilyzer tests, it was not a reasonable conclusion in this case.

During closing arguments, the prosecutor encouraged the jury to follow CALJIC No. 12.61.1 and infer that appellant had a BAC of at least 0.08 percent based on either the PAS tests or the intoxilyzer tests.11 The argument did not attempt to explain the relationship between the two sets of tests and their significance as to appellant’s actual BAC while he was driving.

Taken as a whole, the connection between the proved fact (test result demonstrating a BAC of 0.08 percent or greater within three hours of driving) and the inferred fact (BAC of 0.08 percent or greater at the time of driving), which is an element of the charged crime, was not established beyond a reasonable doubt. Therefore, instructing the jury with CALJIC No. 12.61.1 was constitutional error that improperly lowered the prosecution’s burden of proof.12

Both the United States and California Supreme Courts have held that the Chapman test13 applies to appellate review involving challenges to jury instructions relating to mandatory rebuttable presumptions, because they diminish a defendant’s right to proof beyond a reasonable doubt of each element of the charged offense. (E.g., Carella v. California (1989) 491 U.S. 263, 267; Rose v. Clark (1986) 478 U.S. 570, 579-581.) In People v. James (2000) 81 Cal.App.4th 1343, it was made clear that the Chapman standard applies also to challenges to instructions erroneously allowing permissive inferences. (Id. at pp. 1361-1362.) Respondent does not argue otherwise. Therefore, “we proceed to consider whether it appears beyond a reasonable doubt that the error did not contribute to [the] jury’s verdict.” (People v. Huggins (2006) 38 Cal.4th 175, 212.)

There is no reasonable doubt that in this case the jury relied on the inference to convict. Indeed, as we have made abundantly clear already, the permissive inference was the only evidence used to establish appellant’s guilt of a violation of Vehicle Code section 23152, subdivision (b). Moreover, because appellant’s BAC was rising after the first test was administered, there was strong forensic evidence indicating that appellant’s blood-alcohol level was below 0.08 percent when he was stopped by police. Without belaboring the matter further, under these circumstances it cannot be said beyond a reasonable doubt that the jury did not infer that appellant’s BAC was at least 0.08 percent, as erroneously instructed by CALJIC No. 12.61.1. Therefore, we reverse the conviction as to count two.




IV. DISPOSITION

Count two of the judgment is reversed. The judgment is affirmed in all other respects.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.




Trial Court: San Francisco Superior Court

Trial Judge: Hon. Kathleen Kelly

Counsel for Appellant: Lauretta Marie Oravitz-Komlos, by

Appointment of the Court of Appeal Under

The First District Appellate Project’s

Assisted Case System

Counsel for Respondent: Edmund G. Brown Jr.

Attorney General of the State of California

Dane R. Gillette

Chief Assistant Attorney General

Gerald A. Engler

Senior Assistant Attorney General

Martin S. Kaye

Supervising Deputy Attorney General

Christopher W. Grove

Deputy Attorney General



1 Appellant also contends that, even absent the instructional error, the jury’s finding on count two was not supported by substantial evidence. In light of our reversal for instructional error, we need not address directly whether the evidence presented at trial met the substantial evidence standard. (In re George T. (2004) 33 Cal.4th 620, 630-631.)



2 For purposes of evidentiary breath testing, the third digit of the percentage test result reading is disregarded.



3 The jury’s note is not part of the record on appeal, and the information regarding its content is gleaned only from the trial court’s comment about it while the note was discussed with counsel in connection with appellant’s post-conviction motion for new trial.



4 As the United States Supreme Court has explained, “The most common evidentiary device is the entirely permissive inference or presumption, which allows—but does not require—the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one . . . .” (Ulster County Court v. Allen (1979) 442 U.S. 140, 157 (Ulster).) While courts have used the phrases “permissive inference” and “permissive presumption” interchangeably, for clarity’s sake we refer to the “device” as a “permissive inference,” the language employed in both the CALJIC and CALCRIM jury instructions.



5 “In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.” (Veh. Code, § 23152, subd. (b).)



6 In Moore, the jury was instructed using CALJIC No. 16.152, as follows: “If the evidence establishes beyond a reasonable doubt that the parent of a child abandoned or deserted such child, or that the parent omitted to furnish the necessary food, clothing, shelter or medical attendance or other remedial care, you may infer that such omission was willful and without lawful excuse.” (Moore, supra, 65 Cal.App.4th at p. 936, fn. 2.)



7 CALCRIM No. 2100 contains similar bracketed and Bench Notes language regarding the permissive inference permitted under Vehicle Code section 23610 (if defendant has BAC of .08 percent or higher at time of test, it may inferred he was under the influence at the time of driving). This instruction and its corresponding Bench Notes suffer from the same infirmities as CALCRIM No. 2111, discussed post.



8 The Use Note to CALJIC No. 12.61.1 does not retain the same unnecessary limitation on the use of the instruction formerly reserved for mandatory rebuttable presumptions.



9 Under New York law, the three statutory exceptions to the presumption were if: (1) the weapon was found on the person of one of the occupants, (2) the vehicle was primarily for hire, and (3) one of the occupants had a license to carry the weapon. (Ulster, supra, 442 U.S. at pp. 142-143, fn. 1.)



10 Even if one looked at the intoxilyzer results in isolation, and the expert’s resultant extrapolation to a BAC somewhere between 0.06 and 0.09 percent at the time of driving, it is questionable whether such evidence proved beyond a reasonable doubt that defendant’s BAC was 0.08 percent or higher at the time of driving. While there was other evidence that defendant was under the influence at the time of driving, our review of the record reveals no expert testimony tying defendant’s objective symptoms of intoxication (weaving, speeding, odor of alcohol, and performance on field sobriety tests) to any particular BAC.



11 In fact, the prosecutor tried to argue that the intoxilyzer tests were more accurate than the PAS tests. Apparently based on the stipulation of the reliability of the PAS tests by the parties, the trial judge sustained a defense objection to the comment and ordered it stricken.



12 Even if the “more likely than not” test were to apply here, we would find that the prosecution’s evidence failed to rise to the level required to make the inference reasonable.



13 Chapman v. California (1967) 386 U.S. 18.



California DUI attorneys believe Beltran rejects the Bench Note to CALCRIM 2111. Roder addressed the use of a rebuttable presumption rather than a permissive inference. The permissive inference instruction appears appropriate even when some evidence is presented that contradicts the inference, unless there is no rational basis for the inference to apply.

Beltran involved indisputable evidence of a rising Blood Alcohol Level. Both parties stipulated to the PAS. Both people's criminalist and defense criminalist agreed that given the two readings, the defendant had a rising BA. Both agreed BAC could be under .08% at the time of driving. Giving CALJIC permissive inference instruction was error and reversed. Case did not hold what happens if there is a disagreement. Perhaps one could reasonably argue that if the sole evidence of BAC is the breath test with contradictory evidence, then it would be error to give permissive inference instruction. Beltran's B count - driving with .08% BAC -conviction was reversed.

Because of the rising BAC, Beltran's BAC was actually under .08% BAC at the time of driving. It was a Due Process violation to give the permissive inference instruction.

Kiefer & DUI = Jail for 24 star

Kiefer Sutherland was unfortunately caught driving drunk. He recently pleaded no contest to the misdemeanor drunk driving charge in a Los Angeles California DUI court yesterday.

He now faces 48 days in jail, which could be extended to a year, if the judge sees fit. Sutherland got into his car, drove away and made an illegal U-turn. He was pulled and arrested, and charged with California DUI / drunk driving.

Sutherland's California DUI criminal defense lawyers responded well as the plea deal made sure that Sutherland's California jail time would not coincide with his production schedule on 24.

Sutherland and his California drunk driving criminal defense attorneys sacrificed a shorter sentence just to make sure that 24 and FOX would not be adversely affected by his jail time.

The plea deal also indicates that the sentencing will take place on the 21st of December, the beginning of 24's Winter production break. Sutherland will then have to spend his first 18 days in jail, and will proceed to work afterwards. However, his 30 remaining days of jail time will have to be completed before July 1, 2008. The plea deal continues to say that Sutherland will not be released early, sent home with an electronic bracelet, or any other celebrity loophole. The California DUI plea deal expressly forbids any of this kind. Kiefer Sutherland will be spending 48 days in jail.

It was Sutherland's choice to make this deal, as he could have taken the smoother route and serve lesser jail time. However, he took into consideration 24 and FOX, as he did not want his California DUI sentencing to affect the show. Some may think that he has already done the damage by driving drunk again in California , but fans should be aware that season 7 of 24 will not be affected by this incident anymore.

24: Kiefer Sutherland Pleads Guilty for DUI or for the full story of 24 please review this link http://www.buddytv.com

High School kids learn from DUI accident lesson

California DUI lawyer news

Wednesday afternoon, juniors and seniors at Canyon High School got a dose of mortality as they witnessed the horror of a DUI fatality accident. The accident itself was a simulation, but the emotional impact is designed to be hard hitting.

It’s the Every 15 Minutes program, put on by the Los Angeles County Sheriff’s Department and LA County Fire. The program brings in wrecked vehicles from Wolf’s Towing, and arranges them to stage a vicious accident. Inside the vehicles, five students are posed after undergoing elaborate makeup to make it appear as if they’ve been injured.

Students then file outside and see their classmates hanging in (and out) of the cars. Waiting fire trucks and an ambulance rush to the scene on cue and transport the victims, while deputies arrest the cause of the accident, who is a student pretending to be a driver under the influence.

The whole scene is meant to give students an up close and personal look into the incident, and hopefully make them think twice about driving drunk or driving recklessly.

“As the accident scene stages it turns very somber when the kids actually see their friend in the car,” said Deputy Mike Lorenzi, an organizer of the program.

While the scene has a big impact on the many students watching, it has an even greater impact on the students taking part.

The role playing victims are really transported to the hospital, and the driver to jail. They meet up later at the SCV Youth Grove for a speech by Councilmember Frank Ferry, and then, it’s off to Eternal Valley, where they see the process of picking out a coffin.

Other students at Canyon also get involved. Every 15 minutes, one student is called out of class and becomes one of the “Walking Dead.” Their parents are then informed by a deputy that their child has been killed in an auto accident. Of course, the parents have been warned ahead of time of the simulation, but it is nonetheless very moving.

The whole program culminates with an assembly at Canyon High on Friday where Mayor ProTem Bob Kellar will speak, along with speakers from Mothers Against Drunk Driving.

California DUI Jury Instruction in blood test case

California DUI Lawyer jury instructions for blood case:

If the People have proved beyond a reasonable doubt that a
sample of the defendant’s blood was taken within three
hours of the defendant’s [alleged] driving and that a chemical
analysis of the sample showed a blood alcohol level of 0.08 percent
or more, you may, but are not required to, conclude that the
defendant’s blood alcohol level was 0.08 percent or more at the
time of the alleged offense.

In evaluating any test results in this case, you may consider
whether or not the person administering the test or the agency
maintaining the testing device followed the regulations of the
California Department of Health Services.

California Code of Regulations, Title 17, Section 1219:

Samples taken for forensic alcohol analysis and breath
alcohol analysis shall be collected and handled in a manner
approved by the Department. The identity and integrity of the
samples shall be maintained through collection to analysis
and reporting.
...

In California DUI cases, the People have the burden of proof of the existence of the preliminary facts upon which the opinion of its expert witness rests.

Evidence was adduced that the defendant provided a blood sample for analysis. As a preliminary finding, before considering the test results testified to by the witnesses for the State, you must determine whether:

1. The particular apparatus utilized for analysis of the sample was in proper working order at the time of the test;
2. The test used was properly administered; and
3. The operator was competent and qualified.

If the prosecution has not convinced you beyond a reasonable doubt of the existence of all of these three preliminary facts, you may disregard the blood test results and not apply or utilize the permissive inferences regarding under the influence.

California DUI criminal defense lawyers and California drunk driving criminal defense attorneys may find this kind of jury instruction useful.

False DUI records for $ leads to California charges

California dui attorney news

Fernando Catlin and Hector Whitley are arraigned Monday in Sacramento Superior Court on charges they falsified California dui DUI records in exchange for cash. Catlin was a courthouse clerk at the time and Whitley his alleged accomplice.

Investigators said Monday they have expanded their search for altered drunken driving court files, while a Sacramento Superior Court clerk was arraigned on charges he "erased" such cases for seven people in exchange for money.

Fernando Marcos Catlin, 24, was charged with 14 felony counts of altering and falsifying court records – basically changing court files electronically.

Catlin, who worked five years as a data entry clerk in the court's criminal division, is accused of accepting $1,000 to $5,000 to do the work.

His job classification pays $2,965 to $3,558 a month.

Catlin, who did not enter a plea, faces up to 10 years in prison.

An alleged accomplice, Hector Whitley, 26, who does not work for the county, was also charged with six of the same felony counts. He faces up to six years in prison.

The two were ordered to return to court Monday. Both had earlier posted bail.

The men were arrested Nov. 16 after a two-month investigation into suspicious computer entries that surfaced on some California dui drunken driving cases.

The Sacramento County District Attorney's Office audited California dui records back to January, and investigators found cases of seven men and women who were charged but never showed up in court.

Instead, no warrants were issued for their arrest or their charges had been marked as dismissed.

Investigators now are looking at files from earlier than January, which could mean more charges, said a spokeswoman for the District Attorney's Office.

The seven California dui drunk driving cases have been resurrected.

Prosecutors are reviewing them to see if there will be other charges in addition to the original California dui drunk driving charges, she said.

The court is waiting until the investigation is complete before it addresses any possible security flaws in handling California dui files, says a Superior Court spokeswoman.

The court has 21 data entry clerks who work with criminal files at the downtown courthouse and at the county jail. California dui drunk driving cases are handled in one courtroom, where Catlin and others worked.

California DUI statistics for the holiday

At least eight motorists died from traffic accidents and 133 were jailed on suspicion of California DUI - drunken driving this Thanksgiving holiday in San Bernardino and Riverside counties, according to California Highway Patrol and sheriff's records for the five-day period.

It appears it's going to be down on California DUI - DUI arrests (over last year).

In Riverside County, five people died in accidents during the holiday weekend, including a Sunday night rollover that killed a Corona mother and her 3-year-old son and left a 1-year-old girl clinging to life at Loma Linda University Medical Center, the CHP reported Monday.

There were 40 California DUI - drunk driving arrests in Riverside County during the Thanksgiving holiday weekend, which started Wednesday at 6 p.m. and ended Sunday at midnight.

In San Bernardino County, 93 motorists were arrested on suspicion of California DUI - drunk driving during the same period.

Fifth California DUI brings $1 million Bail

California DUI criminal defense lawyers - San Diego DUI criminal defense attorneys

Tiffany Adamo, 26, has already pleaded guilty to three of her five California DUI -driving under the influence charges. Twelve additional counts have been filed against her including prescription fraud and burglary.

Her bail is currently set at $1 million. She is scheduled to appear in California DUI court on Dec. 6.

She was arrested for California DUI in October at Grossmont Center in La Mesa. According to authorities, she hit a shopping cart, which pinned a 7-year-old boy to a car. Empty bottles of Soma were found in her vehicle, according to California DUI police.

The arrest on the charge of a California DUI - driving under the influence was Adamo's fifth in several months.

California DUI attorneys & lawyers news for San Diego Holiday weekend

California Drunk Driving lawyer - California DUI criminal attorney holiday update for San Diego California

SAN DIEGO -- The number of California DUI - drunken driving arrests, and fatalities caused by California DUI / DWI / Drunk Driving - impaired drivers, continues to increase on San Diego County roadways this Thanksgiving weekend, according to California Highway Patrol statistics updated Sunday.

Five people were killed on San Diego County roadways during the Thanksgiving holiday so far, compared to one at this point last year. At this time Saturday, only three had died so far this holiday weekend.

In San Diego County, 128 people were arrested by CHP officers on suspicion of California DUI / DWI / Drunk Driving - driving under the influence, 14 less than over the same period last year. Saturday, there had been only 92 local California DUI / DWI - drunk driving arrests.

There were 1,497 arrests statewide for suspicion of California DUI / DWI / Drunk Driving - driving under the influence, compared to 1,542 in 2006. That statewide arrest total is up from 1,041 California DUI / DWI / Drunk Driving arrests on Saturday.

California DUI attorneys like DUI-Help are prepared to assist arrestees.

1500 California DUI arrests by CHP over Thanksgiving holiday

California DUI lawyers update

California Highway Patrol officers have arrested more than 200 people for California Drunk Driving so far during their maximum enforcement period for Thanksgiving weekend that began Wednesday.

As of 6 a.m. today, officers in the CHP's 12 Bay Area offices had arrested 207 suspected California DUI drivers, compared with 217 California DUI drivers for the same period last year.

Statewide, 30 people have died in accidents in CHP and police jurisdictions, compared with 35 by this time last year.

CHP officers have arrested 1,497 suspected California DUI drivers statewide so far, compared with 1,542 California DUI drivers last year.

Holiday DUI update for California

The number of drivers arrested for allegedly California DUI driving under the influence of alcohol has increased throughout the state since 2006.

The number of fatalities has decreased, the California Highway Patrol reported today.

In the Bay Area 145 drivers were arrested between 6 p.m. Wednesday to 6 a.m. today for allegedly California drunk driving. This is up from 133 drivers in 2006. 2 fatal collisions have been reported in the 12 CHP jurisdictions that cover the Bay Area. No fatalities were reported last year during the same period.

Throughout California 1,041 drivers have been arrested on suspicion of a California DUI - driving under the influence, and 21 people have been killed in traffic collisions during the CHP's maximum DUI enforcement period. 1,016 were arrested and 29 were killed during the same 60-hour period last year.

Pacific Law Firm story in San Diego Union-Tribune

"High-profile law firm faces complaints, lawsuits
Former lawyers, clients allege unethical activity"

Greg Moran, a hard-working staff writer for the award-winning San Diego Union-Tribune reports today:

November 25, 2007

"With its highly visible, nonstop advertising, the four-year-old Pacific Law Center in La Jolla has made itself one of San Diego's best-known law firms.

By the firm's estimate, it has represented 10,000 clients in drunken-driving and other criminal cases, bankruptcy, and personal injury lawsuits since opening here in 2003.

PROFILE: PACIFIC LAW CENTER
The law firm's high-profile advertising campaign promises aggressive representation and often features testimonials from satisfied clients. Its Web site claims the company's lawyers have more than 250 years of combined legal experience.

Established: 2003

Main office: La Jolla

Lawyers: 25

Clients served: 10,000 since opening

Types of cases: Criminal, DUI, personal injury, bankruptcy, medical malpractice, pharmaceutical.

SOURCE: Pacific Law Center


The advertising campaign promises aggressive representation and “little or no money down” and features testimonials for the center and its lawyers.

But in recent months, that picture has been clouded by lawsuits, a judge's ruling and action by the Better Business Bureau.

Former clients say it was difficult to get enough time with an attorney. Some say they were given unrealistic assessments about their cases.

Lawyers formerly employed by the firm have alleged in lawsuits and in sworn statements that Pacific Law Center uses unethical practices, such as allowing unlicensed clerks to sign up clients and give out legal advice. Two attorneys sued, claiming that they were fired after objecting to that.

Lawsuits filed by former Pacific Law Center attorneys depict a business where lawyers have caseloads so large that it is difficult for them to provide the kind of representation the firm advertises. Instead, they say, the emphasis is on settling cases as quickly as possible.

The Better Business Bureau, a business ethics and consumer protection agency, downgraded its rating of the firm from satisfactory to neutral after fielding 38 complaints over the past three years.

A judge ruled in June that the firm appeared to be “gouging” local taxpayers by seeking public funds to hire experts in two cases for which the firm already had collected thousands of dollars in fees from the clients.

Senior attorneys for the firm defend their practices and reject the various allegations. They insist that their caseloads are manageable and that they have time and resources to give clients personalized attention.
Robert Arentz, the managing partner, said that clerks act as fact gatherers and that no final agreement is ever signed without a lawyer first being brought in to talk to the clients. Arentz said all clients are told that the people they first speak to are not lawyers.

“We have a lot of attorneys and a lot of clients,” Arentz said. “It's easy to find individuals who have individual complaints about their individual situation.

“Overall, the majority of our clients are extremely happy with their representation.”

Arentz spoke from the Phoenix office of the law firm Phillips & Associates, which is affiliated with Pacific Law Center, where he often works.

Jeffrey Phillips, an attorney with the Phoenix firm that bears his name, is listed on the articles of incorporation for Pacific Law Center filed with the California secretary of state. Phillips is not licensed to practice law in California.

Arizona state bar records show that Phillips was censured in September 2002 and placed on two years' probation because he “failed to adequately supervise subordinate attorneys and non-lawyer specialists.”

The records say non-lawyers who first met with prospective clients failed to say they were not lawyers and did not adequately describe the firm's “little or no money down” payment plan.

Phillips completed his probation in January 2005. Complaints of aggressive intake clerks and hard-sell tactics are now being made against Pacific Law Center.

Phillips said potential clients are told repeatedly that the intake clerks are not lawyers, but assistants.

“We don't believe there is any way any of our people are doing anything wrong here,” Phillips said during a recent interview.


Assistants faulted
Court documents, as well as interviews with nearly a dozen lawyers who left the firm but did not sue, describe tactics by “legal assistants” who are not lawyers, who raise clients' expectations about what can be accomplished to get them to hire the firm.
“There were a significant number of clients who didn't get what they thought they bought,” said Charles Luckman, who worked as a criminal defense lawyer there from March 2004 to August 2006. “The best analogy I can give you is it was a law firm run like a used-car dealership.”

Often, according to court records and interviews with former lawyers with the firm, clients became angry when told that their cases were likely to turn out differently than what they were told when they signed up.

“I had to spend my first conversation with clients backpedaling like crazy from what the intake clerks said,” recalled one lawyer who wanted to remain anonymous because he feared retaliation from the firm.

Arentz declined to comment on the lawsuits or the specific allegations in them.

Luckman was one of three lawyers who sued after being fired last year. He reached a quick settlement with the firm, as did the other two lawyers.

He spoke to The San Diego Union-Tribune after the suit was filed but before the settlement, which contained a confidentiality clause, was reached.

In December 2005, Luckman wrote a memo to his superiors that the intake clerks were giving out “unlicensed, unqualified and erroneous legal advice” to clients, according to his lawsuit.

One client was told by a clerk that Luckman was a former judge, which was not true. Luckman said he handled 50 to 80 cases at a time, representing all the firm's East County clients.

In August 2006, after raising more complaints about the firm's practices, Luckman was fired.

Attorney Colin Cossio filed suit in September 2006, alleging he was fired after making numerous complaints about the business practices of the firm and saying he would complain to the State Bar of California.

Cossio said his caseload was enormous.

“When you have 800 files, how can you give each client the attention they deserve?” Cossio said in an interview before he settled his case.

His lawsuit said that non-lawyers routinely dispensed legal advice at the firm, in violation of bar rules and state law.

The complaints detailed by Cossio and Luckman were strongly rebutted by lawyers who now work at the firm. Ten lawyers sent unsolicited e-mails to the Union-Tribune, all saying that their caseloads were not overwhelming and that they had the resources and time to represent their clients well.

Michael Stuart, a lawyer handling criminal cases in El Cajon, said he had 55 active cases and that was manageable. Stuart wrote that he was “proud to be part of an organization that prides itself on ensuring the constitutional rights of its clients through excellent legal representation.”

Most of the letters lauded Alan Spears, named the head of the firm's criminal division in 2007. Spears' name has been in the news lately because he is the lawyer for Seth Craven, one of five men charged with murder in the death of a La Jolla surfer in the “Bird Rock Bandits” case.

Spears, who joined the firm this year, defended his lawyers.

“Do I think I have experienced and aggressive lawyers who vigorously defend people?” Spears said. “If that is the question, the answer is an unequivocal yes.”

In a later e-mail he said it was “absurd” to say his lawyers are overworked.


Judge criticizes lawyers
How the firm bills for services is another area of contention.
Superior Court Judge Jeffrey Fraser criticized the center in June for seeking public funds for indigent defendants in two cases in which the clients already had paid the firm for representation.

In one case, the defendant had paid the firm $12,000 of a $35,590 bill for a sex crimes case in which he pleaded guilty relatively quickly.

In another case, the firm charged $25,590 to represent a man who, after pleading guilty, changed his mind and wanted to withdraw his plea. The man had paid $19,500 of the $25,590 bill in advance.

In both cases, the firm wanted to hire psychological experts to examine their clients – and asked that they be paid from taxpayer funds administered by the court.

Fraser reasoned that some of the retainer fee could be used to pay the experts and rejected the request. It's important that “the public treasury is protected from greedy attorneys,” he wrote.

It is not only former lawyers and a judge with complaints against the firm.

The San Diego Better Business Bureau gives the firm a neutral rating, rather than the more common “satisfactory” or “unsatisfactory” rating. The reason: the large number of complaints consumers have lodged with the BBB.

Most of those complaints concern “service issues,” defined as delays in providing services, inferior quality of service, or not providing a promised service.

“We saw a pattern that causes concern,” said BBB President and CEO Sheryl Bilbrey. “They weren't bad enough to lose membership, but they are not good enough to get a satisfactory rating.”

Several former clients of the firm contacted for this story were bitter about their experiences.

One of those complaining to the Better Business Bureau was Genevieve Ruggles, 71, of Rancho Bernardo, who paid the firm $11,330 to represent her adult son in a drunken-driving case in Ventura County. When her son rejected Pacific Law Center's representation, it took Ruggles nearly six months to get her money refunded. She said that at her first visit to the firm to discuss the case she was immediately pressured to sign up.

Another former client paid the firm $5,500 to represent her on a drunken-driving charge. She said she and her husband spoke to “an aggressive kind of sales guy” when they went to the firm's La Jolla office, who told her the charges easily could be reduced. She said the representative later warned her she could spend 10 days in jail.

Neither turned out to be correct.

The woman, who wanted to remain anonymous because she did not want her arrest widely known in the industry she works in, eventually fired Pacific Law Center and settled the case with a new lawyer.

“They just really pressured us,” she said of the firm's sales tactics.

Arentz and Phillips both said they have worked with the Better Business Bureau and the clients to resolve the complaints. Moreover, Arentz said in a statement, considering the 10,000 clients the firm has represented since opening, the number of complaints to the BBB represents one out of every few hundred clients.

Marsha Hall, a former client who lives in Imperial County, did not complain to the BBB but sued the firm in July, claiming malpractice, fraud and false advertising. The lawsuit contends that the firm botched her case by missing the deadline to file a claim against Pioneer Memorial Hospital in El Centro – a necessary and routine step when suing a public agency.

Instead of admitting the error, the suit said, lawyers persuaded Hall to drop the case after referring her to experts who said she had no chance of winning.

Hall said two members of Pacific Law Center, Michael Clarke and John Schill, told her that her case had no merit – but did not tell her the firm failed to file a government claim on time.

John Schill was identified as the executive director of the firm on the BBB Web site file in May, but he no longer is listed there. He is licensed to practice law in Arizona, but not California.

Clarke has a discipline record from the State Bar of Arizona. He was suspended for six months in 2002 for misusing client funds. He was reinstated in September 2002.

Hall's malpractice lawsuit alleges that it was illegal to allow Schill to work on Hall's case in any way, because he is not a member of the State Bar of California. The suit also contends that Clarke's wife was one of the experts who told Hall the case had no merit.

The firm has denied Hall's allegations and insists it does quality work for clients.

“We have dozens of excellent lawyers, and we are proud of achieving client satisfaction and good results,” Arentz said in a statement. "



http://www.signonsandiego.com/uniontrib/20071125/news_1n25paclaw.html

Holiday weekend stats & update - California DUI lawyers

California Criminal Defense Attorneys - california DUI criminal defense lawyers

Hundreds of California Highway Patrol officers are patrolling state roads and highways over the long Thanksgiving weekend looking for California DUI, California Drunk Driving, impaired and dangerous drivers.

Extra California DUI / Drunk Driving officers began patrolling at 6 p.m. Wednesday and will continue looking for California DUI, Drunk Driving, unsafe drivers and drunken drivers through Sunday as part of the weekend's Maximum Enforcement Period.

AAA Auto Club predicted 31.2 million Americans hit the roads to make Thanksgiving treks of 50 miles or more during the holiday period – a 2 percent increase from last year.

CHP officers arrested 1,670 people over the 2006 Thanksgiving holiday for California DUI / Drunk Driving - driving under the influence – a 10 percent jump from 2005 figures. Drivers are being urged to call 911 to report California DUI or Drunk Driving drivers.

California Drunk Driving Holiday update

California DUI lawyers - California San Diego drunk driving criminal defense attorneys news

2 people were killed so far on San Diego California roadways during the Thanksgiving holiday so far, compared to none at this point in 2006.

CHP reported 12 fatalities in California, 5 less than the same period in 2006.

In San Diego County, 46 people were arrested by CHP officers on suspicion of a California DUI, 1 less than over the same period last year.

There were 618 arrests statewide for suspicion of California drunk driving, compared to 578 in 2006.


San Diego California DUI Criminal Defense Attorney Rick Mueller welcomes you to see complete San Diego California drunk driving attorney & San Diego California DUI lawyer information. http://www.sandiegodrunkdrivingattorney.net

San Diego California DUI attorneys could help you deal with the San Diego California DMV (Department of Motor Vehicles) and save your California driver's license:

Why use the San Diego California DUI Attorney Specialist in DUI and DMV Law http://www.sandiegoduilawyer.com/why.html

List of San Diego California DUI Attorney Victories and Driver's Licenses Saved in Past Few Years http://www.sandiegoduilawyer.com/victory.html

San Diego California DMV and Courts http://www.sandiegoduilawyer.com/courts.html

San Diego California DUI Breath Test Defenses http://www.sandiegoduilawyer.com/defenses.html

San Diego California DUI Blood Test Defenses http://www.sandiegoduilawyer.com/blood.html

You could take the Free San Diego California DUI Survey at http://www.sandiegoduilawyer.com/survey.html

San Diego DUI Lawyer Rick Mueller is a Premier San Diego California Drunk Driving / DUI Criminal Defense attorney with over 23 years of experience. Known as a California "DMV Guru," California DUI lawyer Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the California driving privileges of many clients in the past year alone. Complete the important Free San Diego California DUI - Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

San Diego California DUI Attorney Rick Mueller Background and Contact Information http://www.sandiegoduilawyer.com/about.html

San Diego California DUI and DMV Penalties http://www.sandiegoduilawyer.com/penalty.html

Out of State License/Resident & Driving Record http://www.sandiegoduilawyer.com/out_of_state.html

Military Base DUI - San Diego California Federal Court - http://www.sandiegoduilawyer.com/base.html

What to do within 10 days of a California DUI arrest:

10. If you need to save your California driver's license or privileges, your California DUI defense attorney has only ten (10) calendar days to contact DMV!

Do not schedule yourself. If you contact DMV to schedule a date conflicting with your attorney's calendar, DMV will not reschedule and you may not get the California drunk driving criminal defense lawyer of your choice. There is no rush as long as your California DUI defense attorney contacts DMV by the 10th day from your California arrest.

9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact an attorney ASAP.

8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.

7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.

6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.

5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.

If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.

4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.

3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)

Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.

2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!

1. All a California DUI / DMV defense attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!

http://www.SanDiegoDUI.com - Excellent San Diego California DUI information source for San Diego California drunk driving arrest. California Rights, California Laws, California Defenses, California Penalties, California DMV, California Court, California Military, California DUI issues, Helpful California Tips and other comprehensive information. Vigorous California DUI lawyer who can save your license and keep you out of California jail.

Call 1-800-THE-LAW-DUI (1-800-843-5293) for a free San Diego California DUI consultation http://www.1800thelawdui.com.

For help with your San Diego California DUI, visit http://www.SanDiegoDUIHelp.com.

For San Diego California DUI news, visit http://www.sandiegoduihelp.com/duiblog/.

Rick Mueller, California DUI Specialist (cell: 619/218-2997) 4660 La Jolla Village Drive Suite 500, San Diego, CA, 92122

Alert by all California DUI police for California drunk driving persons

DUI Lawyers California Drunk Driving Attorneys California news

November 23, 2007

California DUI update

This holiday season five California state departments are teaming up to help prevent drunk driving & DUI in California.

The California Highway Patrol are among the agencies deploying its officers to work along the state's roadways during the ``maximum enforcement'' period, which began Wednesday and will be implemented until midnight Sunday to ensure that motorists drive safely.

During the Thanksgiving holidays to date, 10 people have been killed within the CHP jurisdiction throughout California.

The CHP is working with the Office of Traffic Safety, the Department of Alcoholic Beverage Control, the Department of Motor Vehicles, and the Department of Transportation (Caltrans) to promote the state's anti-DUI and anti-drunk driving effort.

Officials said this year 618 people have been arrested for California drunk driving during the maximum enforcement period compared to 578 California DUI arrests during this same time last year.

Last year, 1,594 people were killed in alcohol-related crashes and more than 30,000 were injured in DUI or alcohol-related crashes.

Several California DUI checkpoints are set up around Oakland not only during the holidays but throughout the year. In addition, the department has stepped up its drug recognition efforts with officers specifically trained to detect and document someone accused of California DUI , California DWI , California Drunk Driving or under the influence of drugs and alcohol.

Other California DUI / DWI / Drunk Driving enforcement efforts include safety tips that will be displayed on Caltrans message boards throughout the state.

California DMV plans to take prompt action against the driver's license of any motorist who is cited for a California DUI, California drunk driving, California dwi, or California driving under the influence of alcohol or drugs.

Northern California DUI arrests up over holiday

California DUI attorneys California DUI criminal defense lawyers news

The number of California DUI drivers arrested on suspicion of driving under the influence of alcohol on Thanksgiving eve has increased since 2006, the California Highway Patrol reported today.

More people drive the night before Thanksgiving as opposed to the night of the holiday because people complete their traveling and errands by Thanksgiving morning.

From 6 p.m. Wednesday to 6 a.m. today, 40 drivers were arrested in the Bay Area on suspicion of California DUI or driving drunk, up from 32 drivers in 2006, the CHP said.

One fatal collision occurred in the Bay Area during the 12-hour period, the CHP reported. A 29-year-old man was killed in a hit-and-run collision early this morning in San Jose, according to police. The suspect vehicle fled the scene almost immediately after the crash occurred, CHP say.

No fatalities were reported last year on Thanksgiving eve.

The number of drivers arrested statewide for allegedly California DUI driving under the influence has increased as well, the CHP reported.

Throughout California, 318 drivers were arrested on California DUI suspicion of driving under the influence Thanksgiving eve this year and 295 were arrested during the 12-hour period in 2006.

California drunk driving arrests over Thanksgiving

California DUI criminal defense attorneys

CHP officers are on the hunt for speeders and California Drunk Driving / DUI drivers. It's part of their state wide maximum California DUI enforcement program. CHP had reports of accidents all over the place.

In Sacramento California DUI officers may have already captured one suspected California DUI or drunk driver. Drivers called 911 saying the lady in the back seat of the patrol car was speeding and driving erratically. t it was too late. By the time CHP tracked her down the damage was done. The grandfather is now dead and his passenger suffered major injuries. But the possible California DUI suspect was unscratched.

CHP has made 318 California DUI arrests on thanksgiving eve alone. CHP says it's okay to celebrate, but not behind the wheel.

DUI warrant sweep results in California arrests

California DUI criminal defense lawyer news

A Sacramento County sweep for people with active warrants for California DUI - driving under the influence netted 77 arrests in the first two days of the program.

The Sacramento County Sheriff's Department, in conjunction with Rancho Cordova police and the Sacramento County District Attorney's Office began the annual holiday warrant sweep Monday, sheriff's spokesman Sgt. Tim Curran stated in a news release.

The program targets people with active California DUI warrants.

On Monday and Tuesday, 65 people were arrested for having active California DUI warrants. Twelve others were arrested for other active warrants.

The California drunk driving warrant sweep will continue throughout the Thanksgiving and Christmas holiday season.

Anyone who thinks they may have an active warrant may call his or her California DUI criminal defense lawyer asap.

Active California DUI Warrant? Call your lawyer before arrested

California DUI Lawyer news - help for drunk drivers by california dui attorneys http://www.SanDiegoDrunkDrivingAttorney.net


RANCHO CORDOVA California – Another California DUI Police Department, in conjunction with the Sacramento County Sheriff's Department and District Attorney's Office, on Monday began its annual sweep of outstanding warrants for California DUI / drunk driving / DWI / driving under the influence.

In the first two days of the California DUI sweep, 77 California arrests were made. Of those arrested, 65 had active California DUI warrants and the remaining 12 were arrested on other non - DWI active warrants.

People who believe they may have active California DUI or California drunk driving or California dwi warrants may call the sheriff's warrant bureau at (916) 874-5391.

http://www.SanDiegoDrunkDrivingAttorney.net

California DUI - premier drunk driving defense lawyer

San Diego California Criminal Defense Lawyer Rick Mueller is a Premier San Diego California DUI & DMV Defense attorney with over 23 years of experience. Known as a "DMV Guru," California DUI Attorney Rick Mueller dedicates his entire law practice to vigorously defending those accused of a California DUI. Take the California Drunk Driving / DUI Defense Survey to find out your best California DUI Lawyer Tactic. Save your driving privileges in California.



San Diego California DUI Criminal Defense Attorney Rick Mueller Background and Contact Information http://www.sandiegoduilawyer.com/about.html




San Diego California DUI and DMV Penalties http://www.sandiegoduilawyer.com/penalty.html




Out of State License/Resident & Driving Record http://www.sandiegoduilawyer.com/out_of_state.html




Military Base DUI - San Diego California Federal Court - http://www.sandiegoduilawyer.com/base.html




http://www.SanDiegoDUI.com - Excellent San Diego California DUI Lawyer information source for San Diego county drunk driving arrest. Rights, Laws, Defenses, Penalties, DMV, Court, Military, and other comprehensive information. Tenacious California DUI / drunk driving defense attorney who can save your license and keep you out of jail.




http://www.sandiegodrunkdrivingattorney.net

California DUI warrant sweep

California DUI attorney criminal defense drunk driving lawyers

In an effort to get the jump on holiday drunken drivers, the San Bernardino County California Sheriff’s Victorville station, in conjunction with officers from the Department of Alcoholic Beverage Control, attempted to serve 120 California drunk driving / DUI arrest warrants Tuesday.

The sweep netted more than 15 California drunk driving / DUI arrests and was concentrated within the Victorville city limits.

Most of the subjects seemed to be habitual California drunk driving / DUI offenders.

In checking the warrants, many of these people have had multiple arrests for California drunk driving / DUI.

During the California drunk driving / DUI / DWI sweep, which took place from noon to the evening hours, six teams of deputies were able to uncover other illegal activity such as possession of drugs and drug paraphernalia.

Those who were not home were given the opportunity to come in to the police station in order to have a citation issued to show up in California drunk driving / DUI court.

“If he comes in to the station, we will try to issue him a new court date. But if he gets caught driving, he will go to jail,” said Deputy Jasmine Sanchez to the wife of one California drunk driving / DUI subject.

The California drunk driving / DUI operation was specially funded through a grant from the Department of Alcoholic Beverage Control. Other projects funded by the grant have resulted in arrests for sales of alcohol to minors, minors in possession of alcohol and parties where adults have allwed juveniles to consume alcohol, and related California drunk driving efforts.

California DUI criminal defense lawyers were on alert to help.

Tragic California DUI death of 19 year old

California Drunk Driving / DUI hearing

11/20/2007

PLEASANTON California

California DUI / drunk driving Police officers and nearly 20 family members of 19-year-old Laurel Williams packed an Alameda County Superior Court room Tuesday to show support for Williams, who died in an Oct. 20 alcohol-related car crash.

Supporters of Williams turned out in force at a scheduled hearing for the driver alleged to have been California DUI / drunk driving - under the influence of alcohol when the crash occurred.

The California DUI / drunk driving criminal defense attorney for Katie Amanda McKewon, the Pleasanton woman charged in the wreck, was granted a continuance to Jan. 9, 2008, when a California DUI / drunk driving plea is expected. McKewon's attorney asked the California DUI / drunk driving judge to continue the hearing to Jan. 9, at which time a plea is expected in the case.

"There's going to be extensive investigative (evidence requests made) in this matter," said Kirk Elliott of San Jose.

McKewon, 19, is charged with gross vehicular manslaughter and four counts of California DUI / drunk driving - DUI causing injury, after the Oct. 20 accident on Foothill Road. At about 10 a.m. that day, McKewon was driving -- with Williams as her passenger -- after leaving an all-night party where alcohol was served, police said. The defendant lost control of her car and struck an on-coming vehicle head-on. Williams was killed.

The driver of the other vehicle, 70-year-old Nancy Bressem, was seriously injured.

Police measured McKewon's blood-alcohol level at 0.23, nearly three times the legal limit for drivers 21 and older, according to California DUI / drunk driving police reports. It is illegal for a anyone younger than 21 to have any measurable alcohol in their system.

A Brentwood man was arrested last week on suspicion of supplying the alcohol at that party.

McKewon appeared in California DUI / drunk driving court Tuesday but did not say anything to the judge. Her California DUI / drunk driving bail remained set at $250,000. Her California DUI criminal defense lawyer will likely ask bail to be reduced.

San Diego DUI Death results in arrest of Best Friend

California DUI - San Diego DUI criminal defense attorney news for California

OCEANSIDE, California – Natasha Dannov was not your average California girl.

The recent Fountain Valley High School graduate was full of life and loved to sing. She prized anything vintage and wanted to move to Chicago where things seemed more "old world," said her mother, Isabelle Dannov.

But her dreams came to an end early Sunday morning.

Natasha Dannov was killed in a solo vehicle crash in Oceanside on her 18th birthday. The driver, her best friend, Marian Teri Kahale, 18, also of Fountain Valley, was arrested on suspicion of felony California DUI - driving under the influence of alcohol and manslaughter, officials said Tuesday.

"I loved my only girl," Dannov’s mother said. "She was a beautiful singer and very artistic."

Members of the Kahale family declined to comment on the California DUI crash.

Dannov and Kahale had gone to a friend’s party Saturday night in Mission Viejo, where the two began drinking, Isabelle Dannov said. The girls decided to go home, and instead of getting on the I-5 north, they headed south. Kahale discovered she was driving the wrong way when the pair was in Oceanside about 2 a.m., Dannov said.

Natasha Dannov was sleeping without a seatbelt when the car veered off the freeway before overturning and striking a guardrail, ejecting her from the 2000 Ford Explorer, CHP officials said. She was declared dead at the scene by Camp Pendleton fire officials.

Dannov was initially identified as a Huntington Beach resident by the San Diego County Medical Examiner’s Office.

Kahale was arrested at the scene of the crash, CHP Officer Tom Kearns said. She was taken to a local hospital under police supervision for treatment of moderate injuries, and is being held in the Las Colinas Detention Center in lieu of $250,000 bail.

"That was her best friend of 10 years,’" Isabelle Dannov said about her daughter and Kahale. "They adored each other."

Dannov said Kahale is like her second daughter.

"Natasha was my cousin, and I loved her very very much," a poster named Camille from Montpellier, France wrote. "I'm so sad she died, and I will miss her all my life."

Isabelle Dannov said she knew her daughter went to parties and drank alcohol, and she had taken measures in the past to make sure that Natasha returned home safe. On Friday, when the girls were planning to attend a different party, the mother had arranged for a friend to drive the girls home.

Dannov said she did not know the girls were attending the Mission Viejo party.

The state Alcohol Beverages Control Board in conjunction with the CHP will conduct a 24-hour history leading to the crash to determine where the pair – both underage – could have gotten the alcohol to drink, Kearns said.

Dannov said she plans to make it her mission to share with her Golden West students the danger of drinking and driving.

Alcoholism not a mitigating factor in 4th California DUI?

Filed 11/20/07 P. v. Wilson CA3

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

RONALD RAYMOND WILSON,

Defendant and Appellant.
C053123
(Super. Ct. No. 03F8558)


A jury convicted defendant Ronald Raymond Wilson on one felony count of driving under the influence of alcohol or drugs (DUI). (Count 1; Veh. Code, § 23152, subd. (a).) Defendant waived jury trial on the allegations of a prior conviction and a prior prison term. (Veh. Code, §§ 23550.5; Pen. Code, § 667.5, subd. (b).) Outside the jury’s presence, defendant pled no contest to a misdemeanor charge of driving with a suspended or revoked license. (Count 2; Veh. Code, § 14601.1, subd. (a).)

In a bifurcated proceeding, the trial court found that defendant had been convicted of felony DUI with three prior convictions and had served a prior separate prison term for that conviction. (Pen. Code, § 667.5, subd. (b).)

The probation report recommended the upper term of three years in state prison on count 1, enhanced by one year for the prior prison term, based on the following circumstances in aggravation: defendant’s prior convictions were numerous, he was on probation when the crime was committed, and his prior performance on probation was unsatisfactory. Under “criteria affecting probation,” the probation report noted that this offense was defendant’s fourth DUI. The report found no circumstances in mitigation.

At sentencing, defendant requested that the court impose probation, including a mandatory rehabilitation program. He presented letters on his behalf, including his own; he presented witnesses who testified about defendant’s good character and about a substance abuse program offered to Native Americans such as defendant; and he testified about his willingness to enter and profit from the program.

The trial court adopted the probation report’s recommended sentence, including the aggravating factors specified by the report; the court expressly found no factors in mitigation. The court noted that it was denying probation because defendant had violated parole and probation many times before and “the public safety is a serious issue here[.]” The court credited defendant with time served in jail as to count 2.

Defendant contends that the trial court erred by refusing to consider his alcoholism as a mitigating factor; he also contends that his upper-term sentence violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We shall affirm.

FACTS

A police officer stopped defendant on a state highway on the night of October 30, 2003, after following his pickup truck for three-quarters of a mile and observing it weave over the center line and the fog line.

When defendant got out, he was unsteady on his feet, he smelled of alcohol, his eyes were bloodshot and watery, and his speech was thick and slurred. His response to the horizontal gaze nystagmus test indicated that he was under the influence. He refused to perform field sobriety tests or to give a blood or breath sample.

A blood sample taken involuntarily from defendant an hour after his arrest showed a blood alcohol level of .07 percent, as well as the presence of Vicodin and marijuana.

DISCUSSION

I

Relying on People v. Simpson (1979) 90 Cal.App.3d 919, defendant contends that the trial court erred by failing to consider his alcoholism as a mitigating factor. As defendant acknowledges, however, this court has previously refused to follow Simpson. (People v. Reyes (1987) 195 Cal.App.3d 957, 960-964 (Reyes).) Defendant gives us no persuasive reason to reconsider that position.

In Reyes, supra, 195 Cal.App.3d 957, we observed: “As a policy matter, when a defendant has a drug addiction or substance abuse problem, where the defendant has failed to deal with the problem despite repeated opportunities, where the defendant shows little or no motivation to change his life style, and where the substance abuse problem is a substantial factor in the commission of crimes, the need to protect the public from further crimes by that individual suggests that a longer sentence should be imposed, not a shorter sentence. For example, the felony drunk driver who is suffering from an uncontrolled alcoholism should be sentenced to a longer term, not a shorter one, in order to prevent him from driving under the influence again.” (Id. at p. 963; italics added.)

Reyes is precisely on point. Defendant, a multiple DUI offender, until now has neither attempted to control his alcoholism nor shown any interest in doing so. The trial court properly refused to treat it as a mitigating factor.

II

Defendant contends that his upper-term sentence violated Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856]. He is wrong.

Applying the Sixth Amendment 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] (Apprendi) that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried 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 that a court could impose based solely on facts reflected by a jury’s verdict or admitted by defendant; thus, when a sentencing court’s authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely v. Washington (2004) 542 U.S. 296, 302-305 [159 L.Ed.2d 403, 413-414] (Blakely).)

Accordingly, in Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court overruled the California Supreme Court’s holding in People v. Black (2005) 35 Cal.4th 1238 that the judicial fact-finding necessary to impose an upper term does not violate Blakely. Yet Blakely’s proscription does not apply to the use of prior convictions to increase the penalty for a crime. (Cunningham, supra, 549 U.S. ___, ___ [166 L.Ed.2d at p. 869].) A single valid aggravating factor justifies the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)

In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court held that, under Cunningham, when a trial court uses a proper aggravating factor to impose the upper term, it does not matter whether other factors the court relied on were improper. (Black, supra, at p. 816.) The first factor cited in the probation report and adopted by the trial court, defendant’s record of prior convictions, is a proper aggravating factor under Cunningham, Blakely, and Apprendi. (Black II, supra, at p. 813.) Thus, contrary to defendant’s argument, we need not decide whether his on-probation status and poor performance on probation were also proper aggravating factors.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

HULL , J.

CANTIL-SAKAUYE , J.

California DUI eye machines - new

California dui lawyer - California DUI lawyers news

One of the latest things in the DUI / drunk driving circles is a
machine that measures eye movement using infrared light. The
California Highway Patrol is interested in the machine.

The cost may be about $3,500 for a hand held California DUI machine, $35,000 for a
stationary one eye California DUI machine and $55,000 for a stationary two eye California DUI machine.

With an estimated 1/2 million police cars in the US and thousands of police agencies as potential DUI markets, hundreds of millions of dollars are involved.

The fact that the new drunk driving machines are even being looked at confirms California DUI criminal defense attorneys' arguments that traditional methods of DUI prosecutions such as California DUI breath and California DUI blood testing are not sufficient.

California DUI criminal defense lawyers believe California DUI judges and/or California DUI juries will be hesitant to accept the scientific premises in which the questionable drunk driving eye machines are based.

Don't get caught altering computerized California Drunk Driving / DUI records

California DUI lawyer news - defense attorney for drunk driving cases


A records clerk at the Sacramento County California courthouse and another man have been arrested in connection with an alleged scheme to alter computerized court records involving California DUI cases, District Attorney Jan Scully announced Monday.

Fernando Catlin, who worked in the court clerk's office, was arrested Friday after a two-month investigation and charged with conspiracy, secreting and destroying court records and making fraudulent computer entries in seven California Drunk Driving / DUI cases, Scully's office said.

Also arrested was Hector Whitley, who is not a court worker and who was charged in connection with three of the affected California Drunk Driving / DUI cases.

Scully's office said the probe began when prosecution and court staffers noticed problems with the computer entries involving one California Drunk Driving /DUI case. That resulted in an audit going back to the beginning of the year that found seven cases "where the defendant had been arrested and charged, then had failed to appear at the first court date," Scully's office said.

"Following the failure to appear, an arrest warrant would normally issue," her office said in a statement. "Instead, no warrant was issued (or in one case the warrant was recalled), but a computer entry showed the case had been dismissed, when in fact there had been no court order of dismissal. The investigation revealed that some DUI defendants paid money to have their case be 'taken care of' in the court records."

Mayoral candidate intoxicated in California

California DUI criminal lawyer news

A man described by police as a candidate for mayor in the city of Vallejo was arrested early Sunday morning on suspicion of public intoxication, Palm Springs police Sgt. Mitch Spike said in a written statement.

Gary Cloutier, 45, is identified as the vice mayor of the City of Vallejo.

At approximately 3:44 a.m., Palm Springs police were dispatched to Arenas Road and Calle El Segundo to investigate a report that an alleged intoxicated male was attempting to drive, Spike said.

Police discovered Cloutier in the driver's seat of a newer model Cadillac. Police determined he had been at an establishment known as Hunter's Bar.

Police reports indicated Cloutier was "very intoxicated," he "was staggering and could barely stand."

Thanksgiving Day CHP Drunk Driving Crackdown - California DUI lawyer news

California DUI Lawyer news - california drunk driving defense lawyer information

The California Highway Patrol is planning to serve up a free ride to jail for suspected California DUI or California drunk drivers during the four-day Thanksgiving weekend.

The CHP's Maximum Enforcement Period begins 6 p.m. Wednesday and ends Sunday with every available officer on the road, according to Contra Costa CHP spokesman Scott Yox.

Heavy traffic is expected Wednesday and Sunday.

Last year during the enforcement period, 42 people died in 4,768 collisions statewide.

More than half of those who died were not wearing seat belts.

During the same period, CHP officers arrested 1,670 people suspected of drunken driving, 10 percent more than the previous year.

Besides the enforcement period, CHP also participates in a joint program among the nation's highway patrols to promote safe freeway driving during holidays, known as Combined Accident Reduction Effort, or Operation CARE.

CARE highways in California include interstates 80, 40, 15 (San Bernardino to the Nevada state line) and 5 (from Bakersfield to the Oregon line.)

Manufacturer's 15 minute continuous observation req. for San Diego PD DUI breath test

San Diego California DUI criminal defense lawyers deal with San Diego Police Department's 8000 breath test machine.

The Manufacturer requires a strict Observation Period to be conducted on all subjects prior to any breath test and must be conducted on all subjects being tested in non-Jail Release testing situations.

The San Diego DUI arrestee is not allowed to vomit, regurgitate, eat, drink, smoke, chew or take anything orally for at least fifteen (15) minutes prior to submitting the breath sample. (Also per Title 17, California Code of Regulations, Section 1219.3)

The Manufacturer requires this minimum 15 minute continuous observation prior to testin in order to eliminate and ensure no possibility of residual alcohol or mouth contamination causing a falsely elevated breath test result that does not reflect the subject’s true BAC.

Here's the relevant excerpt for the San Diego DUI 8000 breath test machine:

INTOXILYZER 8000 OPERATOR’S GUIDE

2.0 STEP ONE – PREPARING TO CONDUCT A TEST

The Operator’s Checklist

When preparing to conduct a breath test, it is helpful for the operator to know which Test Sequence they intend to utilize (see section on Selecting a Test Method below). If the operator intends to conduct a Jail Release Test, there is no need to make use of an Intoxilyzer 8000 Operator’s Checklist. In all other cases, it may be helpful for an operator to take advantage of the Operator Checklist. To obtain a checklist, the operator may press the “F2” key on the instrument keyboard. Although strongly recommended, use of an Operator’s Checklist by the operator is not required to successfully complete the testing process. A sample checklist is also contained as Appendix A in this guide.

Pre-test Observation Period

The first and most important step in the breath testing process is the Pre-test Observation Period. The Pre-test Observation Period should be conducted on all subjects prior to any breath test and must be conducted on all subjects being tested in non-Jail Release testing situations. The subject is not allowed to vomit, regurgitate, eat, drink, smoke, chew or take anything orally for at least fifteen minutes prior to submitting the breath sample. This is to ensure there is no possibility of residual alcohol or mouth contamination causing a result that does not reflect the subject’s true blood alcohol concentration. The Intoxilyzer does monitor the breath sample throughout the entire delivery and will automatically abort the testing sequence if any abnormalities are detected. By observing the fifteen minute observation period, however, the possibility of residual mouth alcohol contamination is eliminated. The Pre-Test Observation Period is recommended when using the Jail Release Test Sequence and required in all other testing situations.

California DUI CHP Officer dies after hitting tree

California DUI Lawyer news - California Drunk Driving Criminal Defense Lawyer story

California

November 17, 2007

A rookie California Highway Patrol officer died in a collision late Friday night when his vehicle veered off of a road just north of Livermore and crashed into a tree.

CHP notes the accident occurred when officers were out in the Livermore California area searching for a California DUI / Drunk Driving, allegedly an "extremely intoxicated" driver.

There were multiple reports of an alleged extremely intoxicated driver, a California DUI / Drunk Driver, striking the center median. People were purportedly afraid to pass the suspected California DUI driver.

At about 9:15 p.m., CHP Officer John Miller, 32, was traveling southbound on North Livermore Avenue about a mile north of Interstate Highway 580 when lost control approaching a sharp curve, apparently at a very fast speed.

CHP received a call a short time after 9:30 p.m. from a passerby that a CHP car had been involved in a serious accident.

The suspected California DUI / Drunk Driving driver was arrested near Greenville Road shortly after the fatal collision. No word as to who his California DUI / Drunk Driving criminal defense lawyer may be.

California DUI conviction could lead to rape in prison

A California man will be allowed to complete physical therapy and possibly undergo surgery before he goes to prison for the California DUI crash death of a Vacaville woman in February.

Sonoma County Superior Court Judge Elliot Daum sentenced Peter Lloyd Gilliam Thursday to four years and four months in prison for the California DUI crash that killed 49-year-old Pamela Jarvinen on state Highway 1 on Feb. 17.

The judge denied California criminal defense attorney Hugh Levine's request to keep Gilliam out of California state prison.

"We all know what will happen. He's a gentle, soft, gay man. He'll be raped in prison," Levine said. He asked for a suspended prison sentence and five years probation.

Daum said he is aware of the consequence of a California DUI prison sentence on Gilliam and his lack of a prior record, but he said there needs to be some punishment, retribution and a deterrent.

"This was a horrendous loss of a wonderful human being. That is the focus," Daum said.

The judge however allowed Gilliam to complete physical therapy and further surgery if necessary for the injuries he suffered in the California drunk driving crash.

Gilliam, 51, will return to court Jan. 14 when he will be remanded. He is free on his own recognizance until then.

The California Highway Patrol said Gilliam's southbound 2007 Volkswagen Passat crossed the double yellow lines on a curve in Route 1 and struck Jarvinen's 1998 Ford Windstar minivan near Fort Ross Road.

Jarvinen died in Santa Rosa Memorial Hospital and her son suffered minor injuries. Her husband, son, sister and brother asked Daum to send Gilliam to California prison.

"This plays out in courtrooms across America every day. There's no deterrent, no accountability. Americans are still going to get slaughtered on the streets of America," her son Steve Knox said.

Deputy District Attorney Robert LaForge said Gilliam's California DUI blood/alcohol level was 0.22 percent 90 minutes after the crash, nearly three times the illegal limit of 0.08 percent. Gilliam claimed he drank a bottle of wine then two glasses of wine later that day but LaForge said if that is all Gilliam drank on Feb. 17 his blood/alcohol limit would be less than 0.22 percent.

LaForge said Gilliam told the California county probation department he didn't feel drunk and Jarvinen's vehicle came into his lane. He said Gilliam has maintained he "made a mistake."

Gilliam told Daum, "On this day I made a horrible judgment call that I will live with every day of my life. It saddens me more than I can say."

Gilliam pleaded no contest in August to gross vehicular manslaughter while intoxicated and California DUI. He also admitted his California driving caused death or great bodily injury, caused California felony bodily harm and that he had a California DUI blood/alcohol level above 0.08 percent. Daum stayed a four-year California prison sentence for gross vehicular manslaughter while intoxicated.

"There was a great deal of reckless conduct," Daum said, noting Gilliam drove too fast for the conditions and circumstances.

California criminal defense attorney Levine argued Gilliam used alcohol over "profound sorrow and loss" of his mother who died the previous October and over his sister-in-law who was dying of cancer.

"This was aberrant, totally out of character, context and historical perspective. This was not him," California criminal defense lawyer Levine said, referring to Gilliam's California DUI accident.

California DUI attorneys fight anonymous tips

California DUI criminal defense attorney case law news

Filed 11/16/07 Jackson v. Valverde CA5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

GREGORY L. JACKSON,

Plaintiff and Appellant,

v.

GEORGE VALVERDE, as Director, etc.,

Defendant and Respondent.

F051888

(Super. Ct. No. S-1500-CV-258090)


OPINION

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace, Judge.
Advocate Legal Services, Law Offices of Ronald A. Jackson, and Ronald A. Jackson for Plaintiff and Appellant.
Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Assistant Attorney General, Celine M. Cooper and Ivan H. Torres, Deputy Attorneys General, for Defendant and Respondent.
-ooOoo-
INTRODUCTION
Appellant Gregory Jackson was arrested for driving under the influence after the Bakersfield Police Department received an anonymous call that he was intoxicated and about to drive away from a restaurant. As he pulled out of the restaurant’s parking lot, an officer conducted a traffic stop, appellant emerged from the car, he displayed obvious signs of intoxication, and he was arrested. The Breathalyzer tests subsequently revealed blood-alcohol levels of .16 and .18 percent. He had prior convictions for driving under the influence and the Department of Motor Vehicles (DMV) had previously suspended his license. Appellant requested an administrative hearing and argued the arresting officer lacked reasonable suspicion to conduct the traffic stop which led to his arrest because it was based on an anonymous telephone call, and the officer’s observations and the Breathalyzer results should be suppressed. The hearing officer rejected appellant’s arguments and affirmed the suspension. Appellant filed a petition for writ of mandate in the Superior Court of Kern County, and challenged all aspects of the incident which led to his arrest, particularly the arresting officer’s reliance on the anonymous tip. The court denied his petition. Thereafter, appellant filed the instant appeal and again argues the arresting officer improperly conducted the traffic stop and his petition should have been granted. We will affirm.
FACTUAL AND PROCEDURAL HISTORY
The following facts of the incident are taken from the testimony and exhibits introduced at the administrative hearing.
At 3:11 p.m. on November 25, 2005, the Bakersfield Police Department’s Communications Center received a telephone call from a man who did not identify himself, but who described a situation at the Pizzaville Restaurant on Oak Street. According to the tape-recording of the call, the caller stated his friend was at the restaurant, and “he’s already got three DUI’s again and he’s getting ready to drive again.” The caller said his friend was driving a silver Mercedes Benz with dealer plates, the vehicle was parked in the handicapped parking space at the restaurant, and “he’s getting ready to leave in about 10, 10 minutes.” The caller identified his friend as appellant Gregory Jackson, a White male about 39 or 40 years old, who was an attorney. The caller said appellant was inside the restaurant, he was drinking, and he was going to leave in about 10 minutes. The caller gave the license plate number of the silver Mercedes. “[H]e’s trying to drive me and that’s why I don’t want him to drive at all.” The dispatcher said someone would be sent out.
At approximately 3:13 p.m., a dispatch went out about the call at the Pizzaville Restaurant. At 3:18 p.m., Officer Eric Schimon, who was on motorcycle patrol, responded to the restaurant.
Officer Schimon testified he was dispatched to the restaurant “regarding a subject who was possibly driving under the influence and currently passed out behind the wheel of a grey Mercedes Benz parked in front of the business.” Officer Schimon arrived at the restaurant and saw a grey Mercedes Benz parked in a handicapped space. Schimon parked his police motorcycle “behind and beside” the Mercedes. Schimon immediately examined the vehicle and determined no one was in the car.
Officer Schimon testified that as he looked at the Mercedes, an individual contacted him in the parking lot. This individual said he was the person who called the police department, and “he knew the driver of the vehicle who had driven the vehicle to that location.” This person identified appellant by name as the driver. This person said appellant was drinking alcohol in the restaurant, but Schimon could not remember whether the person identified the precise type of alcohol appellant was drinking.
In his report about the incident, Officer Schimon wrote that when he arrived at the restaurant, he was contacted by “subjects who did not wish to be identified for report purposes,” who stated “they were present when the vehicle arrived” at the restaurant. “They further stated they knew the person driving the vehicle as Gregory Jackson and they observed him enter the business and believed he was driving under the influence.”
At the hearing, Officer Schimon testified that while this person admitted calling the police department, this person did not want to be identified or contacted as a witness, and asked Schimon not to include any identifying information about him in the police report. Schimon did not identify this person in either his report or his hearing testimony. Schimon testified he asked this person where he had seen someone passed out behind the steering wheel, but this exchange was not included in his report about the incident, because “he didn’t want to be identified and if I was to reflect that information that would identify him.” Schimon did not include any identifying information about this person in his report because the person “asked not to.”
Officer Schimon testified he was in the restaurant’s parking lot for about three or four minutes, examining the Mercedes and speaking with the anonymous subject, and he did not attempt to enter the restaurant to contact appellant. Instead, he decided to move his police motorcycle to another area since appellant was not outside, and his motorcycle was blocking parking stalls. As he was moving his motorcycle, appellant and another person apparently walked out of the restaurant. Schimon testified he did not see appellant actually walk out of the restaurant because he was moving his motorcycle and was about 150 feet away, but he saw appellant get into the driver’s side of the Mercedes. Schimon testified the Mercedes backed out of the parking stall, and the vehicle shifted into drive and began to pull forward.
Officer Schimon testified he did not observe appellant display any unusual conduct when he got in the Mercedes, and the driver did not violate any traffic rules as he backed out of the parking space and headed out of the parking lot. Nevertheless, Schimon immediately activated the siren and signal lights on his police motorcycle and conducted a traffic stop of the Mercedes while it was still in the restaurant’s parking lot. Schimon testified he conducted the traffic stop as a “welfare check” based on the information he already had that the driver of the Mercedes was intoxicated, because he wanted to make sure the driver “did not make it onto the roadway.” “Based upon what the witness had told me as well as the dispatch call I felt that I must check his sobriety, confirm that he’s safely traveling on the roadway.”
Officer Schimon testified that when he conducted the traffic stop, appellant immediately got out of the driver’s side of the Mercedes and began walking back towards Schimon’s motorcycle. Schimon testified appellant was “staggering and using the Mercedes Benz as kind of a brace as he walked back. A[s] he got closer to me I could see that he had bloodshot and watery eyes and slow—his speech was very slow and slurred. As I even got closer into contact with him I could smell the odor of alcohol emitting from his breath.”
Officer Schimon testified he asked appellant if he could perform field sobriety tests. Appellant refused and said he was not required to. Schimon spoke to appellant for several moments and determined he would not perform any field sobriety tests. Schimon advised appellant that he had to take the field sobriety screening test, and appellant again refused.
Officer Schimon testified that he believed appellant was driving under the influence based on appellant’s slurred speech, bloodshot and watery eyes, his unstable walk, and the odor of alcohol from him. Schimon arrested appellant for driving under the influence, in violation of Vehicle Code section 23152, subdivision (a), and advised appellant of the reason he was being arrested. Appellant said he had one drink. Schimon impounded appellant’s car and requested a backup squad car to transport appellant to the police department. Schimon testified he observed appellant for about 15 minutes at the scene until he was transported by the backup unit.
Officer Schimon testified it took about five minutes to travel from the restaurant to the police department. Schimon met appellant at the department, completed some paperwork, and then asked appellant to perform a breath test on the Breathalyzer machine. Schimon testified he observed appellant for about 10 to 15 minutes before he conducted the Breathalyzer test. Schimon testified the blood-alcohol readings were .16 percent, .18 percent, and .16 percent. Schimon explained that when the machine records a difference of .02 or more between two tests, a third sample is required to confirm the blood-alcohol level.
Officer Schimon advised appellant of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and appellant refused to waive his rights. Appellant was charged with driving under the influence of alcohol (§ 23152, subd. (a)) and driving with a blood/alcohol level of .08 percent or greater (§ 23152, subd. (b)). Appellant’s driver’s license was suspended, and he was issued a temporary driver’s license.
The Administrative Hearing
The instant record is silent as to the resolution of the criminal charges. However, appellant requested an administrative hearing before the DMV as to the suspension of his driver’s license. On December 30, 2005, DMV stayed suspension of appellant’s driver’s license pending the administrative hearing.
On March 22, 2006, the DMV administrative hearing was held before Jesse Salazar, the hearing officer. Officer Schimon testified as set forth ante. Appellant was represented by counsel but did not personally appear or offer his own evidence. Appellant argued Officer Schimon conducted an illegal traffic stop because he improperly relied on an anonymous tip that the person connected with the Mercedes Benz was driving while intoxicated, the statements were from an individual who refused to be identified, and the anonymous source was not reliable and could not support a reasonable suspicion of criminal activity to justify a traffic stop.
On April 10, 2006, the DMV’s hearing officer issued the ruling and found Officer Schimon had reasonable cause to conduct the traffic stop and appellant was lawfully arrested. The hearing officer addressed appellant’s attack upon the reliability of the anonymous individual who called the police department and later spoke to Officer Schimon at the restaurant.
“ … Based on the evidence, I found that there was sufficient probable cause for the Officer to investigate [appellant] for possible DUI and that a lawful arrest did occur. The Officer testified that he was on the look out for the driver in question and saw [appellant] driving. The Officer also stated that he stopped [appellant] for safety. Subsequently, during his investigation, he found [appellant] to be under the influence of alcohol and the arrest was lawful. The Breath Test result supports [appellant’s] intoxication.
“The Officer had reasonable cause to believe that [appellant] was driving while under the influence of alcohol based on the information he received from the informant. Regardless that the informant did not wish to be identified; based on the audio tape, he knew [appellant] and was concerned for his safety and that of other motorists enough to call the police. The Officer conducted a legitimate welfare check and the arrest was lawful under 40300.5 VC, even though the Officer did not specifically articulate this. However, he stopped [appellant] for ‘traffic safety.’ I find that the Officer would have been derelict in his duty and liable if he would not have stopped [appellant] and he later caused a traffic accident….”
The hearing officer found the charges against appellant were supported by a preponderance of the evidence, that Schimon had reasonable cause to believe appellant was driving while under the influence, he was placed under lawful arrest, and he was driving while he had .08 percent or more by weight of alcohol in his blood. The hearing officer lifted the stay and reimposed the suspension of appellant’s driver’s license, with the suspension effective April 19, 2006, and to remain in effect through April 18, 2007.
Administrative Mandamus
On May 8, 2006, appellant filed a petition for writ of administrative mandamus in the Superior Court of Kern County pursuant to Code of Civil Procedure section 1094.5. Appellant challenged the reliability of the anonymous individual who called the police department, and Officer Schimon’s claim that he received a dispatch about an individual passed out behind the wheel of a car. Appellant noted the tape-recording of the anonymous call did not contain any such information, and Schimon lacked any basis to conduct the traffic stop because he did not observe any traffic violations as the Mercedes Benz headed out of the parking lot.
On May 9, 2006, the court issued an alternative writ of mandate and order to show cause, and stayed the suspension of appellant’s license pending a hearing on his writ petition.
On July 24, 2006, respondent, the Director of the DMV, filed opposition to appellant’s petition, and argued the hearing evidence supported the suspension of appellant’s driving privileges, and Officer Schimon properly relied upon the anonymous person’s information that the driver of the Mercedes was intoxicated. Respondent noted the individual was not truly anonymous because he contacted Schimon at the scene and identified himself as the person who called the police department. Moreover, that person gave details about appellant’s condition, that he apparently arrived and passed out over the steering wheel, he was intoxicated, he was drinking alcohol inside the restaurant, and he intended to drive away in his car. Respondent argued these details rendered the informant reliable, and Schimon properly relied upon this person’s information when he conducted the traffic stop of the grey Mercedes.
On August 21, 2006, appellant filed a reply to the opposition, and again asserted the anonymous caller’s information was not reliable, and the officer lacked reasonable suspicion to conduct the traffic stop because he did not observe any conduct to lead him to believe appellant was intoxicated. Appellant also argued Officer Schimon did not offer truthful testimony because of discrepancies between his hearing testimony and his report about the incident. Appellant asserted there was no reason for the police department to dispatch any officer to the restaurant because the anonymous caller failed to provide any useful information that any criminal activity had or was about to occur.
The Court’s Hearing
On August 23, 2006, the court conducted the hearing on appellant’s petition for administrative mandamus. Appellant conceded the matter was controlled by People v. Wells (2006) 38 Cal.4th 1078 (Wells), which had just been decided in June 2006, and addressed the reasonableness of an officer’s reliance upon an anonymous tip to conduct a traffic stop. Appellant argued Wells was distinguishable from the instant case because Officer Schimon gave conflicting testimony as to the exact information he received in the dispatch—whether the driver was passed out in the Mercedes Benz, or simply that someone at the restaurant might have been drinking—both of which differed from the information provided by the anonymous caller to the police department. Appellant argued that the information provided by the anonymous informant at the scene—that someone was drinking inside the restaurant—was insufficient to support a traffic stop under Wells because it was not specific and Officer Schimon did not observe any inappropriate conduct as appellant left the restaurant, entered the car, and backed out of the parking space.
Respondent replied Officer Schimon’s hearing testimony was not inconsistent, and he explained the omissions from his report were because such information would have disclosed the identity of the individual at the restaurant, and that person requested to remain anonymous. Respondent argued that individual’s statements in the restaurant’s parking lot provided reasonable suspicion that appellant was intoxicated, and appellant entered his vehicle and attempted to drive away. Moreover, the source in this case was not an anonymous tipster because the individual contacted Officer Schimon in the restaurant’s parking lot, confirmed he called the police, and described appellant’s condition. The information in the original dispatch was also confirmed because Schimon found a grey Mercedes Benz parked in the handicapped space in front of the restaurant.
The Court’s Ruling
On August 28, 2006, the court denied appellant’s petition for writ of mandate. The court acknowledged that Officer Schimon might have performed a less intrusive means of checking on appellant’s welfare by directly contacting him to determine if he was intoxicated but he did not have the chance.
“… Unfortunately, there was no opportunity to take this course of action. Officer S[c]himon testified he was in the process of parking his motorcycle approximately a hundred and fifty feet away from the silver Mercedes when he observed [appellant] and an unidentified person getting into the silver Mercedes preparing to leave the area. The only reasonable course of action at that point was to remount his motorcycle, which he did, and intercept and stop [appellant’s] vehicle before he entered the public roadway.”
The court relied on Wells and found “a high degree of reliability of the tipster’s information.”
“… The vehicle type, color, location, and license plate number were all confirmed by the officer on his arrival at the location. The in-person contact with the tipster and reconfirmation of the information from the tipster regarding [appellant’s] consumption of alcohol adds to that reliability.
“Finally, the level of intrusion of the personal privacy and inconvenience to [appellant] in the traffic stop is further minimized by the fact that [appellant] immediately got out of the vehicle and voluntarily approached the officer when the stop was initiated.
“Thus, and considering all the circumstances of this case and the risk to [appellant] and the public which potentially could result from allowing him to proceed on his way clearly justified the minimal intrusion of a brief investigatory traffic stop that was initiated by Officer Simon [sic].”
On October 16, 2006, the judgment was filed. On October 27, 2006, the notice of entry of judgment was filed. On December 7, 2006, appellant filed a timely notice of appeal of the court’s denial of his petition for writ of administrative mandamus.
DISCUSSION
I.
THE STANDARD OF REVIEW
We begin with the well-settled standard of review in this case. “Under administrative per se laws, ‘when a person is arrested for driving under the influence and is determined to have a prohibited blood-alcohol level, the arresting officer or the DMV serves the person with a “notice of the order of suspension.” [Citations.] The notice informs the person that his or her driver’s license will be suspended [30] days from the date of service, states the reason and statutory grounds for the suspension, and explains the person’s right to seek an administrative hearing. [Citations.] If the arresting officer serves the notice, the officer also confiscates the person’s driver’s license and issues a [30-day] temporary license. [Citations.]’ [Citation.]” (Lake v. Reed (1997) 16 Cal.4th 448, 455, fns. omitted (Lake).)
“After either the arresting officer or the DMV serves a person with a ‘notice of an order of suspension or revocation of the person’s [driver’s license],’ the DMV automatically reviews the merits of the suspension or revocation. [Citation.] The standard of review is preponderance of the evidence [citation], and the department bears the burden of proof [citations]. For drivers 21 years of age and older, the sole issues are whether: ‘(A) ... the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section ... 23152[] or 23153. [¶] (B) ... the person was placed under arrest .... [and] [¶] (C) ... the person was driving ... [¶] [w]hen the person had 0.08 percent or more, by weight, of alcohol in his or her blood.’ [Citation.]” (Lake, supra, 16 Cal.4th at pp. 455-456, fn. omitted.)
“The DMV is required to make its determination prior to ‘the effective date of the suspension or revocation’ [citation], although the department may dispense with such automatic review if the driver requests a hearing [citation]. The determination of facts by the DMV in its automatic internal administrative review has no collateral estoppel effect in a subsequent criminal proceeding. [Citations.]” (Lake, supra, 16 Cal.4th at p. 456.)
“A driver served with a DMV suspension notice is entitled to a hearing on request. [Citations.] The administrative hearing is held before either the director of the DMV, a hearing board or, more usually, a department hearing officer [citation]. ‘The only issues at the hearing on an order of suspension pursuant to Section 13353.2 shall be those facts listed in paragraph (2) of subdivision (b) of Section 13557’ [citation], that is, whether the arresting officer had reasonable cause to believe the person was driving, the driver was arrested, and the person was driving with .08 percent BAC or higher.” (Lake, supra, 16 Cal.4th at p. 456.)
“If the hearing officer finds the evidence proves these three statutory prerequisites by a preponderance of the evidence, the driver’s license to operate a motor vehicle will, with exceptions not relevant here, be suspended for four months if the driver had a clean driving record [citation]. For persons with a prior drunk driving conviction (or a conviction for driving with a prohibited BAC) within the previous seven years, ‘the person’s privilege to operate a motor vehicle shall be suspended for one year.’ [Citation.]” (Lake, supra, 16 Cal.4th at p. 456.)
“In ruling on an application for a writ of mandate following an order of suspension or revocation, a trial court is required to determine, based on its independent judgment, ‘“whether the weight of the evidence supported the administrative decision.”’ [Citations.] Here . . . the trial court denied the writ. On appeal, we ‘need only review the record to determine whether the trial court’s findings are supported by substantial evidence.’ [Citation.] ‘“We must resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court’s decision. [Citations.] Where the evidence supports more than one inference, we may not substitute our deductions for the trial court’s. [Citation.] We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings. [Citation.]”’ [Citations.]” (Lake, supra, 16 Cal.4th at pp. 456-457.)
II.
REASONABLE SUSPICION AND ANONYMOUS TIPS
As in his administrative appeal and writ petition, appellant again contends Officer Schimon lacked reasonable cause to conduct the traffic stop of the Mercedes Benz because he only had information from an anonymous informant, that information was not specific, he did not observe appellant engage in any activity indicating he was intoxicated or driving unsafely prior to conducting the traffic stop, and thus the traffic stop was unlawful.
“[A]n officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.] The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case. [Citations.]” (Wells, supra, 38 Cal.4th at pp. 1082-1083.)
“Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.] But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances “in the proper exercise of the officer’s duties.” [Citation.]’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1083.)
A series of cases have addressed whether information from an anonymous source establishes reasonable suspicion. In Alabama v. White (1990) 496 U.S. 325 (White), the police received an anonymous tip that a woman was carrying cocaine in an attaché case and would be leaving an apartment building at a specific time, get into a car matching a specific description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped, searched and cocaine was found in an attaché case in her vehicle. (Id. at p. 327.) White held the tip alone did not justify the stop, but the tip coupled with observations of the defendant’s movements in accordance with the tipster’s predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Id. at pp. 330-332.)
“We think it also important that . . . ‘the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.’ [Citation.] The fact that the officers found a car precisely matching the caller’s description in front of the 235 building is an example of the former. Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. [Citation.] When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop. [¶] Although it is a close case, we conclude that under the totality of the circumstances the anonymous tip, as corroborated, exhibited sufficient indicia of reliability to justify the investigatory stop of respondent’s car.” (White, supra, 496 U.S. at p. 332.)
In Florida v. J.L. (2000) 529 U.S. 266 (J.L.), an anonymous caller reported that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime thereafter, officers arrived at the bus stop and observed three black males “‘just hanging out [there].’” (Id. at p. 268.) One of the three, the defendant, was wearing a plaid shirt. The officers did not see a firearm and the defendant made no threatening or otherwise unusual movements. One of the officers approached the defendant, frisked him, and discovered a gun. (Ibid.)
J.L. held the information received by the police was insufficient to justify the stop and frisk. According to the court, “[t]he tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court’s decision in that case. The anonymous call concerning [the defendant] provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” (J.L., supra, 529 U.S. at p. 271.) The court rejected the state’s argument that reliability could be based on the tipster’s description of the physical characteristics of the defendant, i.e., a black male wearing a plaid shirt at a bus stop. The court explained: “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. [Citation.]” (J.L., supra, 529 U.S. at p. 272.) Finally, the court rejected adoption of a firearm exception based on the danger presented. Such an exception, the court explained, “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.” (Ibid.)
In People v. Jordan (2004) 121 Cal.App.4th 544 (Jordan), the police received an anonymous telephone tip about a man in a park carrying a concealed handgun and threatening to shoot people. The man was described as Black, light-skinned, with a bald head, wearing a black jacket, white shirt, and red boots. The caller indicated the man was carrying the gun in his right jacket pocket. A police officer arrived at the park and observed the defendant, who matched the description, sitting on a park bench. The officer could not see a gun bulge in the defendant’s clothing and the defendant did not appear to be engaging in any illegal activity. After observing the defendant for a while, the officer directed him over and conducted a search. He discovered a handgun in the defendant’s jacket pocket. (Id. at pp. 548-551.)
Jordan held there was only one factor that distinguished this matter from J.L.--the fact that the anonymous tip was recorded. This factor detracted from any possibility that the call was an after-the-fact police fabrication. (Jordan, supra, 121 Cal.App.4th at p. 562.) However, the court concluded this factual distinction was insufficient to warrant a different result. (Ibid.) At the time of the stop, the police had received no information predicting the defendant’s activities, as in White, and no information, other than the informant’s bare assertion, that the defendant was engaged in criminal activity. (Id. at p. 559.)
In reaching its decision, Jordan did not consider the fact that the informant had told the 911 operator the defendant was threatening people with the gun. This information had not been relayed to the police who conducted the stop, and the People did not argue that such information should be imputed to the officers. (Jordan, supra, 121 Cal.App.4th at pp. 549-550, 560, fn. 8.) The court also did not consider whether the result would be different if the anonymous call could be traced if, for example, it had been made from a home phone. No information about the possibility of tracing had been presented at the suppression hearing. (Id. at pp. 561-562.)
In Lowry v. Gutierrez (2005) 129 Cal.App.4th 926 (Lowry), the police received an anonymous cell phone tip that a specific vehicle was being driven the wrong way on a city street and turned into oncoming traffic. An officer was dispatched to the area, located a vehicle which matched the caller’s description, did not observe any erratic driving, but conducted a traffic stop. The officer contacted the driver and smelled alcohol on his breath and clothes, his eyes were red and watery, and his speech was slow and deliberate. The driver admitted he had consumed two beers, failed a field sobriety test, and his blood-alcohol level was .10 percent. The driver was arrested, his license was suspended, and he challenged the suspension at an administrative hearing. The driver argued the officer lacked reasonable suspicion based upon an anonymous tip. The DMV upheld the suspension, but the trial court granted the driver’s petition for writ of mandate and found the officer lacked reasonable cause. (Id. at pp. 929-932.)
Lowry reversed the trial court’s order and held that an immediate investigatory story was appropriate under the exigent circumstances of the case. The court cited statistics from the California Highway Patrol which demonstrated the grave public safety hazard posed by drunken drivers. (Lowry, supra, 129 Cal.App.4th at pp. 940-942.) Lowry found the tip was reliable “because the caller gave the dispatcher the driver’s gender, a description of the vehicle, its license number and approximate location. This information was sufficient to allow the officer who spotted the vehicle five minutes later to make sure he was stopping the right vehicle.” (Id. at p. 941, fn. omitted.) Moreover, “the caller gave precise descriptions of the driver’s actions--wrong-way driving and making a left turn in front of oncoming traffic. The caller also named the streets on which these traffic violations occurred. This information demonstrated the caller had been an eyewitness to the accused’s reckless and dangerous driving.” (Ibid.)
In Wells, an anonymous caller reported a 1980’s-model blue van traveling northbound on Highway 99 north of Bakersfield and weaving all over the roadway. Two or three minutes after receiving the dispatch report, a California Highway Patrol officer spotted a blue van traveling northbound on Highway 99, activated his patrol car lights, and stopped the van to investigate whether the driver was impaired. The officer had seen nothing to indicate the motorist was intoxicated but, after conducting an investigation at the scene, arrested the motorist for driving under the influence. (Wells, supra, 38 Cal.4th at pp. 1081, 1083.)
Wells found the detention was lawful and observed that “a citizen’s tip may itself create a reasonable suspicion sufficient to justify a temporary vehicle stop or detention, especially if the circumstances are deemed exigent by reason of possible reckless driving or similar threats to public safety.” (Wells, supra, 38 Cal.4th at p. 1083.) Wells distinguished the situation from the facts in J.L., and noted that J.L. acknowledged the possibility that exigent circumstances, such as a report of someone carrying a bomb, “despite the inability to corroborate the informant’s reliability.” (Id. at p. 1084.) After balancing the public interest in safety and the individual’s right to personal security free from arbitrary interference by law enforcement officers, Wells determined the relative urgency presented by drunk or erratic drivers could justify an investigatory detention based on an anonymous tip despite the absence of corroborating evidence of illegal activity. A tip’s reliability need not depend exclusively on its ability to predict the suspect’s future behavior, as in White, or the officer’s ability to corroborate present illegal activity. Instead, the tip’s reliability depends upon an assessment of “the totality of the circumstances in a given case.” (Wells, supra, 38 Cal.4th at p. 1088; accord, U.S. v. Perkins (4th Cir. 2004) 363 F.3d 317, 325 [“A rigid rule demanding the presence of predictive information is thus unjustified by White and J. L., and it would be wholly inconsistent with the flexible nature of reasonable suspicion analysis”].)
Accordingly, Wells relied on the totality of the circumstances in distinguishing J.L. “[A] report of a possibly intoxicated highway driver, ‘weaving all over the roadway,’ poses a far more grave and immediate risk to the public than a report of mere passive gun possession. Police officers undoubtedly would be severely criticized for failing to stop and investigate a reported drunk driver if an accident subsequently occurred. ... [W]here a reasonable suspicion of criminal activity exists, ‘the public rightfully expects a police officer to inquire into such circumstances ....’ [Citation.]” (Wells, supra, 38 Cal.4th at p. 1087.)
Wells next found that “doubts regarding the tipster’s reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller. Instances of harassment presumably would be quite rare.” (Wells, supra, 38 Cal.4th at p. 1087.) Indeed, “the relatively precise and accurate description given by the tipster in the present case regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report, enhanced the reliability of the tip.” (Id. at p. 1088.) “The investigating officer’s inability to detect any erratic driving on defendant’s part is not significant. Motorists who see a patrol car may be able to exercise increased caution. Additionally, the officer in this case stopped defendant’s van immediately after spotting it.” (Ibid.) Based on that level of detail and the officer’s ability to corroborate it, the court inferred that the observation of reckless driving must have come from a passing motorist. (Ibid.) “Where else would it have come from?” (Ibid.) In light of the tip’s detailed and contemporaneous description, the officer’s ability promptly to corroborate its innocent details, and the danger posed by a motorist under the influence, Wells was “convinced that the officer’s traffic stop was justified by reasonable suspicion of criminal activity.” (Ibid.)
In People v. Dolly (2007) 40 Cal.4th 458 (Dolly), the police received an anonymous telephone call that a light-skinned African-American male had “‘just pulled a gun’” on the caller and mentioned a gang name. The caller said the man had a bandage over his left hand as if the hand had been broken and was sitting in the driver’s seat of a gray Nissan Maxima parked at a particular location near a recycling center. The tipster called again two minutes later and said he had just driven by the Nissan and determined it was black rather than gray. (Id. at p. 462.) At about the time of the second call, officers received a dispatch about a light-skinned, African-American male with a cast on his arm in a gray Nissan Maxima, in the location indicated by the informant, who had threatened a 911 caller with a gun. The officers arrived on the scene and saw a black Maxima with three people inside. The defendant was sitting in the driver’s seat, matched the description, and had a cast on his arm. The officers ordered the defendant out of the car and conducted a search. They found a loaded .38-caliber revolver under the car’s front passenger seat. (Dolly, supra, 40 Cal.4th at p. 462.)
Dolly held that, under the totality of the circumstances, the detention stop did not violate the defendant’s Fourth Amendment rights. Among those circumstances was the “grave and immediate risk” posed to the caller and anyone nearby, by the act of pointing a revolver at the caller. (Dolly, supra, 40 Cal.4th at p. 465.) “‘[A]llegations of the threatening use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action’ and ‘is materially distinguishable from the anonymous tip at issue in Florida v. J.L.,’ which involved only an allegation of a concealed weapon.” (Ibid.)
Dolly was also persuaded by the fact the anonymous tip involved a contemporaneous threat rather than past activity. (Dolly, supra, 40 Cal.4th at p. 467.) According to the court, “[t]he police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant “was reporting what he had observed moments ago,” not stale or second-hand information.’” (Id. at p. 468, quoting from U.S. v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, 1177.) The tipster also provided an accurate and detailed description of the perpetrator and his location, which was confirmed minutes later by the police. (Dolly, supra, 40 Cal.4th at p. 468.)
“‘[T]here are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.”’ [Citation.] As the high court has explained, however, the tip must be ‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’ [Citation.] In this case, the 911 call was a firsthand report of violent criminal conduct requiring an immediate response to protect public safety. The call was recorded, eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller’s sincerity. The report was fresh, detailed, and accurate, and its description of defendant and his location was corroborated by the police within minutes. Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver.” (Dolly, supra, 40 Cal.4th at pp. 470-471.)
Finally, Dolly noted the caller supplied a plausible explanation for wanting to remain anonymous because the defendant had uttered a gang name, he was worried that “‘I don’t have anyone to defend me from all this gang shit,’” and explained that “‘if they find out I’m snitching, they’re going to kill me around here.’” (Dolly, supra, 40 Cal.4th at p. 469.) “That the tipster ‘may be understandably reticent to give identifying information for fear of retaliation or danger’ reduces the significance of his anonymity in analyzing the reliability of his report. [Citation.]” (Ibid.; see also People v. Rivera (2007) 41 Cal.4th 304, 308 [police not required to corroborate anonymous tip before seeking consent to enter and search a residence; “[e]ven if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search”].)
As an initial matter, appellant complains that all of Officer Schimon’s information was provided by an individual who insisted on remaining anonymous, and argues that reasonable cause for an investigatory detention cannot be provided by anonymous informants. As explained in Wells, Dolly, and Lowry, however, it is not unreasonable for law enforcement officers to rely on anonymous tips depending on the nature and circumstances of the case. Wells held the relative urgency presented by drunk or erratic drivers could justify an investigatory detention, based on a contemporaneous anonymous tip, despite the absence of corroborating evidence of illegal activity. A tip’s reliability need not depend exclusively on its ability to predict the suspect’s future behavior, as in White, or the officer’s ability to corroborate present illegal activity. Instead, the tip’s reliability depends upon an assessment of “the totality of the circumstances in a given case.” (Wells, supra, 38 Cal.4th at p. 1088.)
In the instant case, the officer conducted a lawful traffic stop based on Dolly and Wells. First, the anonymous caller to the communications center provided specific details that appellant was drunk and about to drive away from the Pizzaville Restaurant. The caller identified appellant by name and gave the description, license plate, and parking location of appellant’s Mercedes Benz. The call was made at 3:11 p.m.; Officer Schimon responded to the dispatch at 3:18 p.m. Upon arriving at the restaurant, Officer Schimon found that exact vehicle parked in the exact location described by the caller. Officer Schimon was immediately contacted by an individual who identified himself as the anonymous caller, who again identified the driver by name, and provided further details about appellant—he was drinking alcohol in the restaurant, he was intoxicated, and he was about to drive away. Officer Schimon testified that as he paused to move his patrol motorcycle out of the parking stalls, appellant and another person emerged from the restaurant, appellant entered the driver’s side of the Mercedes, backed out of the parking space, and started to drive away. Schimon did not observe any traffic violations but immediately conducted the traffic stop based upon the information he already received—that appellant had been drinking alcohol, he was drunk, and he was determined to drive. Officer Schimon’s decision to conduct the traffic stop to check on the driver’s welfare was lawful under the exigent circumstances of this case
In contrast to Wells, we need not infer that the anonymous call was made by an eyewitness with personal knowledge, since that individual approached Officer Schimon, identified himself as the caller, and provided additional details about appellant’s alcohol consumption and intent to drive away. Moreover, the anonymous nature of the reporting individual in this case does not undermine the legality of the traffic stop. As in Dolly, the anonymous call to the police department was tape-recorded, “eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller’s sincerity.” (Dolly, supra, 40 Cal.4th at p. 471.) Also as in Dolly, “[t]he report was fresh, detailed, and accurate, and its description of [the suspect] and his location was corroborated by the police within minutes.” (Ibid.) “The police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant “was reporting what he had observed moments ago,” not stale or second-hand information.’” (Id. at p. 468.) Again as in Dolly, the tipster provided an accurate and detailed description of the driver and his location, which was confirmed minutes later by the police. (Ibid.)
As in Wells, the “relative urgency” of the situation presented by a drunk driver justified the traffic stop. (Wells, supra, 38 Cal.4th at p. 1088.) The anonymous caller was describing a contemporaneous threat of an intoxicated person about to drive away, rather than past activities. (Dolly, supra, 40 Cal.4th at p. 467.) Officer Schimon had already confirmed the information the anonymous caller gave the dispatcher about the car’s description and location. This individual appeared at the scene and gave Officer Schimon additional information—that appellant was still drinking alcohol and intent on driving. Since Schimon had already confirmed the initial information, it was reasonable for him to rely on this person’s additional information to assess the situation and determine whether totality of the circumstances justified an investigative detention.
Appellant notes a contradiction between Officer Schimon’s account of the dispatch and the actual tape-recording. In the transcript of the call to the police communications center, the anonymous caller stated that appellant was drinking in the restaurant, he had three prior DUIs, he was getting ready to drive, and the caller did not want him to drive at all. Officer Schimon testified he was dispatched “regarding a subject who was possibly driving under the influence and currently passed out behind the wheel of a grey Mercedes Benz parked in front of the business.” Appellant points to the disparities between the tape-recording of the call to the police, and Schimon’s description of the dispatch he received, and argues Schimon’s testimony was not credible. The entirety of the record, however, explains the reason for this inconsistency in Schimon’s testimony. Schimon testified he asked the individual in the parking lot where he had seen someone passed out behind the steering wheel, and this individual gave him a response. Schimon testified he did not include this exchange in his report because that individual “didn’t want to be identified and if I was to reflect that information that would identify him.”
Appellant makes much of the argument that Officer Schimon could have entered the restaurant and contacted him to check on his welfare and prevent him from getting into the car, instead of waiting for him to get in the car and actually drive it. As noted by the trial court, the circumstances necessarily ruled out the possibility of checking on appellant while he was still in the restaurant. Schimon testified that when he arrived at the restaurant, he parked his patrol motorcycle by the Mercedes but was blocking some parking stalls. As Schimon was moving his motorcycle, appellant and another person walked out of the restaurant, appellant got into the driver’s side, backed out of the parking space, and started to pull out of the parking lot. Given the exigencies, Schimon’s actions were reasonable under the circumstances.
As in Wells, based on the anonymous tip’s detailed and contemporaneous description, the officer’s ability promptly to corroborate its innocent details, and the danger posed by a motorist under the influence, we are convinced “that the officer’s traffic stop was justified by reasonable suspicion of criminal activity.” (Wells, supra, 38 Cal.4th at p. 1088.)
DISPOSITION
The judgment is affirmed.


HARRIS, Acting P.J.
WE CONCUR:



WISEMAN, J.



GOMES, J.

California DUI criminal defense lawyers continue to contest these issues on a case-by-case basis.

California DUI Breath Testing Attorney Defenses in California Drunk Driving Defense Lawyer Cases Part II

California DUI Breath Test Defenses for Criminal Lawyer San Diego California Pt. II:


Did the officer fail to follow proper San Diego DUI breath testing procedures, as taught in the California DUI Academy and as set forth in the training manual for San Diego DUI cases?

As your San Diego Drunk Driving Defense Attorney, the San Diego County DUI Law Center and San Diego DUI criminal defense lawyer Rick Mueller will look at the officer’s report if we are employed to find indications that support sobriety, are inconsistent with intoxication, or there is evidence that shows the officer did a poor investigation of alternative causes.

Was the officer properly trained in accordance with the standards of Title 17 of the California Code of Regulations, including but not limited to the requirement of being trained in the theory of the operation of the San Diego California breath test machine?

Your San Diego DWI Lawyer will want to know if there have been adequate and appropriate inspections of the San Diego DUI breath test machine by properly trained personnel in accordance to San Diego California DUI regulations.

Your DUI Attorney in San Diego will look for improper or inconsistent test results, and then determine if there were follow-up tests in that at least two results are within 0.02% of each other.

Your San Diego DUI Criminal Defense Lawyer may wonder if there is an abnormally high test result when you do not urinate for 3, 4 or more hours, because this is not physiologically possible.

If there is a rising blood alcohol level, there may be sufficient evidence to argue the actual BA at the time you were driving would have been lower than the time you in fact were tested, per the defense of your San Diego DUI - DMV Defense Lawyer.

If the officer obtains a BA reading below .08 and then waits to perform a second test in which he obtains a .08 and above reading, you may have a defense. Your DUI Attorney in San Diego will analyze for at least two consecutive similar San Diego DUI test results.

If the officer refused your request for a second, independent test and/or denied your request for a blood test, which is more reliable and deemed most accurate to obtain the BA, this may be a defense. Check with your San Diego DUI Criminal Defense Attorney.

Did the officer give you a chemical test admonition that cannot be understood through no fault of your own, as required by case law, including the case in which the San Diego DUI officer threatens potentially dire consequences?

Did the San Diego California DUI officer misstate the consequences regarding the suspension of your driving privileges?

Will your San Diego DUI Drunk Driving Defense Attorney figure out if the chemical test was obtained over 3 hours after driving ended? Under Vehicle Code section 23152, there is a rebuttable presumption one’s BA level was at or over the limit at the time of driving only if the test is within 3 hours.

If the officer makes an illegal, warrantless stop or arrests our client without probable cause, a good San Diego DUI DWI Attorney will contend it was an unlawful arrest in order to suppress the evidence and void the San Diego California DUI charge.

If the officer moves away from the location of the arrest, is subsequently fired, commits a crime and is indicted, retires or dies before the case goes to trial, we will use that to obtain a dismissal of your San Diego California DUI case.

Your San Diego criminal defense lawyer may discover whether the test room was contaminated, whether there was interference from a cell phone, an officer's radio, or someone smoking in or near the machine or a recently painted room, a shared power supply with a heater or other appliance because any one of these events may potentially cause an artificially high BAC reading in your San Diego DUI case.

Were the San Diego DUI Field Sobriety Tests were performed on a partial hill or slope, or at a bad location with heavy traffic?

Was there a curved road at the location of the arrest, as that can also affect your alleged bad driving, a possible defense to unlawful movement in lane, etc.?

Don't ram a California DUI cop when you are drunk driving

criminal defense California DUI lawyer news


A California DUI man was charged with drunk driving Tuesday after running his car into a police officer who was arresting another DUI suspect - and then driving off to his home a block away.

Asked why he left the scene, Dorix Omar Hernandez said he thought he hit the officer just "a little bit,".

The incident allegedly occurred at 2:25 a.m. Saturday on Novato Street, where Officer Chris Duncan had just arrested a suspected California drunk driver. As Duncan was leaning in the doorway of his patrol car, talking to the suspect in the back seat, Hernandez drove up from the opposite direction, swerved across the street and struck Duncan's open door. The door slammed shut, wedging Duncan between the car's door and its frame. Hernandez, 30, kept driving to his apartment on Fairfax Street, where he was arrested by another officer who saw the collision.

He was arraigned Tuesday on charges of felony drunk driving /califonia DUI.

60% decrease in California DUI breath test gadget claimed by chewing tablet

California DUI criminal defense lawyer breakthrough:
http://www.sandiegoduihelp.com/duiblog
http://www.vmxhealth.net/

Don't get caught with your pants down!

The Alcohol Breathalyzer is definitely not in your favor and can cost you everything from your job, freedom, thousands of dollars or all of the above.

Beat the odds! Prevent a tiny and unreliable machine to determine your fate.

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

DRUNK OR NOT?

100% MONEY BACK
GUARANTEE IF NOT SATISFIED

Chew one tablet per hour during consumption of alcohol for best results to eliminate odor and decrease breathalyzer read out by up to 60% .


Our product is guaranteed to reduce the alcohol level on any breathalyzer test by up to 60%. If you are are put into a situation where you have to drive after consuming alcohol you have to prepare for what you will do if by chance you are pulled over and tested.

2 testimonials:

I recently got pulled over while leaving a restaurant. I had three glasses of wine with dinner which shouldn't be a big problem. A friend of mine a year or so ago got a DUI and all he had to drink was a couple of beers. This concerned me.

That night I was asked to take a breath test and nothing showed on the reading. That same friend that got the DUI gave me some samples he bought from this site. I didn't think it would really work and it didn't taste good at all. I do not want to guess what the breath test reading would have been without the gum my friend gave me. I hear too many stories about people who had one or two drinks and blow high readings anyway. Those machines are not accurate at all and can ruin your life. The DUI gum is definitely worth a try.


&

Drinking and driving is definitely not something I do regularly but I'm only human. Last month I went to a birthday party and had a little too much fun. (if you know what I mean).

Everybody was drunk and when I tried calling a cab they said two hour wait. I lived 10 minutes away and had waited an hour before my last drink. I have gotten two DUI's already. I get one more and its a felony charge. The last two cost me over $20,000 with layer fees and fines. I'm not saying that its ok to drive drunk but if I have few drinks and get pulled over II don't need a stupid breathalyzer readout to determine my fate if I know I'm not drunk. Police were all over the place driving home and a cop sitting on my street with the lights off snuck up behind me. They knew my history after they ran my plates and automatically asked me to do a breath test. I was scared but had been using the DUI gum a friend gave me before I left the party. I didn't think it'd work and swore I was going to jail. I blew a legal reading and the cop let me go.

I called my friend next day and asked them for the site to buy more gum. I have DUIX in my purse and in my car. Never know what situations you will be put in.

http://www.vmxhealth.net/

California dui criminal defense attorneys and others find this very interesting. http://www.sandiegoduihelp.com/duiblog/2007/11/breathalyzer-drug-claims-60-decrease-in.html

California DUI patrols stepped up for weekend

California DUI criminal defense lawyer news - California drunk driving attorney

November 15, 2007
California DUI patrols in California cities

Deputies will be looking for California DUI / California drunk driving / California intoxicated drivers in Lake Forest, Rancho Santa Margarita and Mission Viejo and other parts of California.

The Orange County Sheriff's Department will be cracking down and on the lookout for California DUI, California drunk driving, and California intoxicated drivers in three South County cities Friday night.

Deputies will be patrolling Rancho Santa Margarita, Lake Forest and Mission Viejo Friday night. Deputies will be targeting areas that have a high incident rate of California DUI arrests and collisions.

California drunk driving criminal defense lawyers who specialize in California DUI cases will be ready to assist.

Lindsay Lohan does 1 1/2 hours on DUI sentence facility

LINDSAY Lohan turned herself in to prison yesterday following driving offences and served her whole sentence - all of an hour and a half of it.

Lohan attended the Lynwood correctional facility to serve jail time stemming from her August conviction for two California DUI cases.

Lohan walked into the Lynwood correctional facility at 10.30 a.m. accompanied by her California criminal defense attorney, Blair Burke.

Lynwood is the same facility where Paris Hilton served her DUI sentence in June. Lohan was sentenced to at least 24 hours in prison, but she didn’t even make it to a cell. She was kept in a holding area and released less than an hour and a half later, at 11.54 a.m., just before lunch was due to be served at the facility.

The jail source says that Lohan was "extremely co-operative and professional." This 84-minute lockdown has fulfilled the jail time part of her California DUI conviction, but she will still be required to complete community service.

Police looking at DUI for critically injured California driver

California drunk driving - DUI may be factor in California crash

A California man critically injured in Sunday’s car crash on Newport Boulevard that sent several people to the hospital may have been drunk driving or California DUI, police suggested Monday.

Joseph Dorando, 43, suffered apparently life-threatening injuries when the hood of his 1997 Jaguar convertible ripped through the front windshield as a result of the crash. Paramedics took him to Western Medical Center in Santa Ana California where he remained in critical condition Monday.

“At this point witnesses are pointing toward the Jaguar and DUI appears to be a factor,” Sgt. Tom Fischbacher claims.

The Jaguar crashed into a minivan just before 4 p.m. Sunday in the southbound lanes of Newport Boulevard just before the Hospital Road traffic signal in California.

Three other people, including a 4-year-old, were purportedly hurt when the van rolled. None of the other injuries were apparently life-threatening.

Providing alcohol before fatal DUI crash gets man busted

California DUI criminal defense lawyer news & Drunk Driving defense attorney info:

A 21-year-old California man was arrested Monday for allegedly providing the alcohol a 19-year-old woman drank before she was involved in a fatal California DUI collision in Pleasanton.

Police said that Paul Stonebarger knowingly supplied alcohol to minors attending a small all-night party in Pleasanton on Oct. 19. After leaving the party the morning of Oct. 20, Katie McKewon and Laurel Williams, both 19-year-old Pleasanton residents, were involved in a California DUI collision on Foothill Road near Highland Oaks Drive.

McKewon was driving southbound on Foothill Road at about 10 a.m. when she allegedly crashed her Ford Mustang into a Mercedes SUV in a northbound lane.

Williams died in the crash and McKewon was taken to Eden Medical Center where she was treated for severe head trauma. The driver of the Mercedes, 70-year-old Nancy Bressem, was also seriously injured in the collision.

According to police, lab results showed that McKewon's blood alcohol level was three times the California legal limit for drivers 21 years of age and older. McKewon was arrested Nov. 7 on charges of vehicular manslaughter while intoxicated and California DUI - felony drunk driving.

Stonebarger, a former Cal State University, Chico student who currently lives in Chico, is not being charged as a co-defendant of McKewon or as an accessory to her California DUI or drunk driving-related charges.

He was booked at Santa Rita Jail Monday for "providing the alcohol that led to the tragedy," according to police. If convicted, he faces up to a year in county jail and a "substantial fine."

Hollywood Star's DUI vehicle bid at $110,000

California Drunk Driving Criminal Defense Lawyer news

California DUI criminal defense attorneys

The car that Lindsay Lohan was driving when she hit a tree while arrested for a California DUI / California drunk driving has appeared on eBay - with a starting bid price of $110,000.

The white Mercedes Benz SL had just 6,200 miles on the clock when Lohan had the accident in Beverly Hills. Lohan owned the 2005-model car until earlier this year, when it was sold to a private dealer.

The registration plate is also unchanged from when the actress had the accident. "We purchased this car with minor damage in the left front corner from California about 60 days ago," the owner said.

California cops get $ 1/2 million to make DUI arrests

California DUI criminal defense attorneys - California drunk driving lawyers news

The Napa Police Department is doing its part to get California drunk driving / DUI drivers off the road.

The department recently received a $451,432, two-year grant from the state Office of Traffic Safety, which it will use to crack down on California drunk driving motorists.

The grant will pay the officer’s salary for one and half years. The cost of new motorcycle, which fully equipped, runs about $30,000, according to Napa Police Sgt. Tom Pieper, who is in charge of the traffic unit.

A big chunk of the grant will be used to nail California drunk driving / DUI offenders and those who drive with a suspended or revoked drivers license.

“Resources will be directed at enforcement efforts which have proven to be effective in reducing the number of collisions, injuries and deaths. This department will actively pursue the California drunk driving / DUI offenders and those driving on suspended or revoked license,” Napa Police Chief Rich Melton said.

Money from the grant will be used to pay overtime for officers to conduct DUI checkpoints. Officers will also be assigned to roving, random California drunk driving - DUI saturation teams. They will concentrate their efforts in areas with a high number of collisions involving California drunk driving / DUI drivers.

The city has also purchased five digital driver’s speed feedback signs. The digital signs, which will be posted around town, will flash the driver’s speed if they are exceeding the posted speed limit.

Those California drunk driving arrestees appearing in California DUI court on suspended or revoked license citations who are ordered not to drive best heed the judge’s words.

As part of an effort to keep those California drunk driving offenders from getting behind the wheel anytime soon, an officer will monitor those California drunk driving violators when they leave California drunk driving court. If they get into a car and drive away, the officer will stop their vehicle, arrest the driver and impound the car for up to 30 days.

In addition to the cost of the new citation and more court fees, the California drunk driving offender will have to pay to retrieve their vehicle from the storage yard. “In most cases that’s not cheap. Impound fees can run up to $1,500.

California DUI Breath Testing Attorney Defenses in California Drunk Driving Defense Lawyer Case

DUI California Defense Attorney - Possible Drunk Driving Lawyer Breath Test Defenses

Any California DUI / Drunk Driving officer who arrests you for a California DUI / Drunk Driving charge has to continuously observe you for 15 straight minutes just before you provide your California DUI / Drunk Driving breath sample. [California Code of Regulations, Title 17; Manriquez v. Gourley]

Inform your San Diego California DUI / Drunk Driving DUI Criminal Defense Attorney if you were left alone or out of the sight of the California DUI / Drunk Driving officer at anytime prior to taking the California DUI / Drunk Driving test, including being placed in a holding room/cell, using the toilet or making a phone call.

Did the California DUI / Drunk Driving officer include any of the transportation time as part of the required 15 minute observation period?

Your DUI Attorney for your San Diego, California DUI / Drunk Driving may inquire if you had trouble holding down food or liquid, had a slight burp or regurgitation of gas, and/or began to vomit during the 15 minute observation period before the California DUI / Drunk Driving test.

If you belched, burped or had a slight regurgitation of gas during the 15 minute observation period before taking the California DUI / Drunk Driving breath sample, you could have a falsely elevated breath test reading.

Some San Diego California DUI / Drunk Driving / DWI defense cases involve a breath test that is unreliable, inaccurate or inappropriate.

Your San Diego DUI / Drunk Driving Defense Criminal Defense Lawyer may want to know if you have a medical condition, such as diabetes or is hypoglycemic because these individuals that consume alcohol can also produce a high acetone level which the body converts into isopropyl alcohol.

Your DUI Attorney from San Diego California may inquire if you have a dental problem, such as gum disease/gingivitis/pockets around roots, dentures or bridgework. These conditions reportedly may trap mouth alcohol and contaminate the results of a California DUI / Drunk Driving breath test.

Your California DUI / Drunk Driving / DMV Defense Attorney may want to know if you were diagnosed with a hiatal hernia, reflux disease or an intestinal problem.

Your San Diego California DUI / DMV Defense Lawyer should be informed if you have a respiratory problem, such as asthma, bronchitis, emphysema or chronic obstructive pulmonary disease.

Did you, immediately preceding your San Diego DUI detention, use Breath Drops or mouth spray that contained alcohol?

Did you consume Nyquil, Vicks Formula 44 or other brand cough medicine, or in the event you used a lip balm, or possibly toothache drops, any of which may include alcohol?

Were there other substances that may have been ingested shortly before the California Drunk Driving breath test that may interfere with and/or produce incompetent California DUI test results, including products such as Skoal brand snuff?

Were your actions, behavior or conduct are inconsistent with and do not match your California DUI / Drunk Driving breath test results?

Were you on the Atkins high protein diet? Your California DUI / Drunk Driving Criminal Attorney may be able to present an argument that such an individual can trigger an auto-generated alcohol production when they introduce carbohydrates to their body, thereby converting ketones into isopropyl alcohol.

Was there any recent exposure to toxic substances, volatile fumes, including lacquer substances, gasoline, paint, dry cleaning fluids or even brand 409 housecleaner, because they can produce a chemical interference with, and therefore, cause an elevated California DUI / Drunk Driving breath test result?

If you were in an automobile accident and the air bag inflated, was there exposure to the propellant and/or lung and airway irritation causing fluid build-up from the caustic gas propellant, aka the Tyndall Effect?

Is it possible you had an elevated breath temperature at the time the California Drunk Driving test was performed as a result of high fever, having recently used a sauna or hot tub, detained in the back of the patrol car in summer, or standing in the hot sun, dancing, running, heavy exercising, or if a woman who was having a menstrual cycle?

Did you have a blowing pattern irregularity at the time of the California DUI breath test that can produce artificially high water vapor and thereby cause the California Drunk Driving test to be unreliable, e.g. as in the case you may have been crying?

San Diego California DUI / DMV Help

Your San Diego California DUI / DMV hearing for a possible license suspension is like a shorter trial without a jury, but with much different San Diego California DMV rules, San Diego California DMV laws and San Diego California DMV procedures.

Your San Diego California DUI / DMV hearing is presided over by a California Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego California DUI / DMV lawyer, and admit or not admit either party's evidence.

The San Diego California Driver Safety Officer offers evidence in the form of documents and/or witnesses. The California Driver Safety Officer offers the San Diego California drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the very important San Diego California DUI officer's sworn statement.

Your San Diego California DUI / DMV attorney will typically not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear as you have no fifth amendment rights.

Your San Diego California DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing. A San Diego California DMV / DMV suspension can be set aside or sustained. If the San Diego California DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento California and/or to the San Diego Superior court by filing a San Diego California DMV petition for writ of mandamus.

Your San Diego California DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego California DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension.

Because of the peculiar nature of San Diego California DUI / DMV hearings and the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego California Drunk Driving criminal proceedings, San Diego County public defenders are unavailable.

Your San Diego California Drunk Driving / DMV attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego California DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline is up. So time is of the essence!

For more information or to contact a California Drunk Driving / DUI / DMV Attorney who can help:

San Diego DUI Lawyer

San Diego DUI

California DUI Attorney

San Diego DUI Help

California DUI Help

DUI prior can be used against someone for 10 years even though 7 years at plea

DUI attorney criminal defense lawyer - drunk driving law info

Filed 11/8/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

JASON MICHAEL FORRESTER,

Defendant and Appellant.
2d Crim. No. B198662
(Super. Ct. No. M385438A)

(San Luis Obispo County)


In People v. Sweet (1989) 207 Cal.App.3d 78 (Sweet), defendant pled guilty to driving under the influence of alcohol (DUI). At the time of his plea, a defendant convicted of a subsequent DUI offense within five years receives increased punishment. After Sweet's plea, the Legislature amended the statute to extend the five years to seven years. Sweet reoffended more than five but less than seven years later. In Sweet, we held that the statute may constitutionally be applied to prior DUI convictions entered when five years was the maximum period in which prior convictions could be used for increased sentence. (Id. at p. 83.)

Jason Michael Forrester is in a similar predicament. The statute was again amended to extend the seven years to ten years. (Veh. Code, §§ 23540 & 23546.)1 Faced with the seemingly insuperable Sweet precedent, Forrester asks us to reexamine our holding in light of Stogner v. California (2003) 539 U.S. 607. We have, and conclude nothing has changed. Forrester's enhanced sentence does not violate ex post facto or due process principles. We affirm the judgment.

Factual and Procedural Background

Forrester suffered two DUI convictions, one in 1997 and another in 2001. In 1997, sections 23540 and 23546 provided that DUI-related convictions increase punishment for subsequent DUI convictions occurring within seven years. Effective January 1, 2005, the California Legislature amended these statutes to extend the period to 10 years.2

In March 2006, Forrester was again charged with DUI offenses. (§§ 23152, subd. (a) & 23152, subd. (b).) The People alleged his two prior convictions to enhance his sentence.

Forrester moved to strike his prior 1997 conviction. He argues, as did defendant Sweet, that to enhance his sentence with this prior conviction violates the ex post facto clause. The trial court denied the motion and Forrester pled no contest to a violation of section 23152, subdivision (b), and admitted the two prior convictions. He was sentenced to confinement in county jail. The trial court stayed execution of his sentence pending appeal and granted him a certificate of probable cause.

The Appellate Division of the Superior Court affirmed. It concluded that use of the 1997 prior conviction to enhance Forrester's sentence does not violate ex post facto principles. We granted Forrester's request to transfer the case here for resolution of the constitutional issues.

Ex Post Facto Clause and Due Process

Forrester acknowledges our analysis in Sweet and other precedent. Ex post facto laws (1) criminalize formerly innocent actions after their commission; (2) aggravate a crime after its commission; (3) increase the punishment associated with the crime after its commission; or (4) alter the legal rules of evidence required to convict the offender. (Miller v. Florida (1987) 482 U.S. 423, 429; Sweet, supra, 207 Cal.App.3d at p. 82.) "Statutes enacting punishment for a defendant convicted of violating section 23152 with prior convictions do not have the effect of being ex post facto laws. [Citations.] It is the law in effect at the time of commission of the offense which controls. [Citations.]" (Sweet, at p. 82.)

In 2006, when Forrester committed the current DUI offense, the law provided that an individual with prior section 23103.5 convictions within the last 10 years would be subject to enhanced punishment if convicted of violating section 23152, subdivision (a). (§§ 23540, 23546 & 23550.) "There is no constitutional bar preventing application of the statute to later offenses solely because the prior conviction which serves as a basis for enhancement was committed before the habitual offender statute was enacted." (Sweet, supra, 207 Cal.App.3d at p. 83.) The crime Forrester is punished for is not the prior conviction, "but the subsequent offense of which the prior conviction constitutes only one element. [Citation.]" (Ibid.)

Courts have routinely rejected ex post facto challenges to statutes that increase penalties for recidivism. Courts reason that the sentence imposed upon a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime, which is aggravated because of its repetitive nature. (See, e.g., Gryger v. Burke (1948) 334 U.S. 728, 732; People v. Snook (1997) 16 Cal.4th 1210, 1221; People v. Eribarne (2004) 124 Cal.App.4th 1463, 1469 [three strikes law]; People v. Wohl (1991) 226 Cal.App.3d 270, 273 [rejecting ex post facto contention where DUI conviction is elevated to felony on fourth conviction].). Additionally, it is well established that even expungement of a conviction will not eliminate all consequences associated with that conviction. (People v. Jacob (1985) 174 Cal.App.3d 1166, 1173.)

Forrester argues that Sweet is no longer good law because Stogner v. California, supra, 539 U.S. 607, compels a different result. In Stogner, the State of California attempted to revive the statute of limitations for the crime of child molestation after the original statute of limitations had expired. The United States Supreme Court held that California was barred from doing so because the new statute of limitations attached criminal liability "'. . . where the party was not, by law, liable to any punishment.'" (Id. at p. 613.)

The Appellate Division correctly noted the difference between reviving a prosecution in its entirety after the statute of limitations has run, and enhancing the sentence in a new criminal prosecution stemming from new criminal conduct. Here Forrester's prosecution stems from a law that became effective more than one year before the date of his arrest, and one that apprised him of the possible consequences of a new violation. Unlike Stogner, Forrester has not been charged with a crime for which the statute of limitations has run. He has not been deprived of a "vested defense" because the statute extending the maximum period of prior offenses was enacted before the current offense. (See Sweet, supra, 207 Cal.App.3d at pp. 82, 86.)

Violation of Forrester's 1997 Plea Agreement and Estoppel

Forrester next contends that the plea agreement he signed in 1997 is a contract in which the district attorney promised he would receive an enhanced sentence only for DUI offenses committed within seven years. He relies on language in the plea form stating that the court and counsel advised him of the elements of the offense, the possible defenses, and the direct consequences of his plea, including the minimum and maximum sentences listed on a chart appearing on the second page of the plea form. A chart lists the penalties for DUI convictions effective January 1, 1994, depending upon the number of prior DUI offenses committed within the previous seven years. The chart simply provides information concerning the relevant law at that time. No language in the plea agreement, nor any evidence supports the contention that Forrester relied on the information in the chart in entering his plea. Nor would such reliance have been reasonable.

For these reasons, there is no merit to Forrester's contention the state is estopped from using his 1997 conviction. (See Hair v. State of California (1991) 2 Cal.App.4th 321, 328-329.)

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.


Stephen B. Sefton, Judge

Superior Court County of San Luis Obispo

______________________________

Law Offices of Tony Marlow, Anthony J. Marlow and Midori Hill Feldman, for Defendant and Appellant.

Gerald T. Shea, District Attorney, Kathleen Philpot Secrest, Deputy District Attorney, County of San Luis Obispo, for Plaintiff and Respondent.



1 All statutory references are to the Vehicle Code.



2 Section 23540 currently provides in part: "If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than ($390) nor more than ($1000)." Section 23546 provides for additional punishment if a person has two prior qualifying convictions (e.g., "wet reckless" driving convictions).

Tinted Windows ok in California - how to avoid DUI if tinted windows

CALIFORNIA dui criminal defense attorney information

For many in the California Highway Patrol, the most common question people ask CHP these days in Lake County is: "Can I have tinted windows?"

The answer is generally no, unless you follow particular rules:

"If I can't see in to the car, then they get a ticket," CHP say. "The rule is you can't have anything that obstructs the view in the front. So whether it's a tinted window, or a cracked windshield or a fuzzy dice, if it's something that distracts you or obscures the view, you can get a ticket for it."

CHP says they is "bombarded" by people calling and walking into the CHP office with questions about window tint. He said the most common questions are "how dark can I have my windows tinted? Or, "the guy at the window tint place said I could have tint as long as you can see through it."

The only legal tinted windows allowed are the windows to the rear of the driver's seat, provided there are two outside rear-view mirrors. The front windshield and drivers and front passenger's windows cannot be tinted. The only exception is a narrow UV band at the top of the windshield.

The California Vehicle Code states: "No person shall drive a motor vehicle with any object or material placed, displayed, installed, affixed, or applied in or upon a vehicle which obstructs or reduces the driver's clear view through the windshield or side windows."

Another section of the Vehicle Code states: "No person shall place, install, affix, or apply any transparent material upon the windshield, or side windows of any motor vehicle when the material alters the color or reduces the light transmittance of the windshield or side windows."

"The basic answer is, if it's not a clear UV protectant then it's not legal," CHP Officer Garcia says. But the issue of legality is commonly skirted at the shop when someone asks to get their car windows tinted.

"It's similar to the cable descramblers you see for sale in certain classified ads. It's not illegal to posses, but it's illegal to use. The same goes for all the miscellaneous parts you can buy to supe up your car. They would be OK for a race track to use, just not on the roadway," CHP say. "The tint places should be doing the right thing and telling them it's not legal before they put it on, but then they would lose sales."

Properly tinted windows is something California DUI criminal defense lawyers hope their clients take care of, ahead of time.

San Diego California DUI criminal lawyer can help

California DUI criminal defense lawyer

San Diego California DUI Criminal Defense Attorney Rick Mueller is a successful, aggressive San Diego California DUI / DMV / Drunk Driving defense lawyer with a statewide reputation for successfully representing many of his clients charged with DUI / Drunk Driving in Southern California.

San Diego California Drunk Driving Defense Lawyer Rick Mueller lectures extensively in the area of defending people accused of DUI / DMV / Drunk Driving.

San Diego California DUI Criminal Defense Lawyer Rick Mueller has been a criminal defense attorney since 1983. He is on top of the latest cases, scientific literature, legal treatises and articles on the subject of San Diego California DUI / DMV / Drunk Driving defense.

San Diego California Drunk Driving Criminal Defense Attorney Rick Mueller is ready to fight your San Diego California DUI case with extensive research, preparation and investigation in each DUI / DMV / Drunk Driving case.

If you have been arrested for San Diego California DUI / Drunk Driving, please fill out the Free Evaluation form at

California DUI Attorney

San Diego California's San Diego County DUI Law Center

The San Diego County DUI Law Center's DUI criminal lawyer Rick Mueller is a California DUI Attorney Specialist.

Their California DUI lawyer website -

California DUI Attorney

- features helpful, extensive San Diego California DUI information for San Diego California arrestees and San Diego California DUI defense attorneys.

This San Diego California DUI criminal defense lawyer, located in San Diego San Diego California California, represents San Diego California drunk driving related offenses.

The San Diego County DUI Law Center is a Professional Corporation. Its San Diego California DUI attorney website is a valuable resource for California DUI law. Its San Diego California DUI lawyer website features new, useful information.

The San Diego County DUI Law Center provides a free online evaluation.

San Diego California DUI Lawyer Rick Mueller is a premier San Diego California DUI - drunk driving defense attorney who vigorously defends persons accused of San Diego California DUI or Drunk Driving. As your San Diego California DUI & DMV attorney, he will represent your San Diego California case in criminal court & at the San Diego California DMV Office of Driver Safety Administrative Per Se Hearing to save your driving privilege.

San Diego California DUI defense attorney Rick Mueller handles all San Diego California DUI / alcohol-related cases including:

First Offense San Diego California DUI
Second Offense San Diego California DUI
Third Offense San Diego California DUI
Fourth & Subsequent San Diego California DUI
Felony San Diego California DUI
Minor Underage 21 San Diego California DUI (zero tolerance .01% / .05% BAC )
San Diego California Driving Under the Influence of Drugs
Chemical Test Refusal San Diego California DUI Cases
San Diego California DUI Cases With Accidents

Contact the San Diego County DUI Law Center for a free San Diego California DUI Attorney Evaluation today.

California DUI Attorney

Differences between a California criminal attorney and a California DUI lawyer

What is the difference between a California criminal defense lawyer and a California DUI defense attorney?

Would you go to a urologist if you felt chest pains, even though the doctor received general training in ailments of the chest? Probably not. You would go to a cardiologist.

Many people in California facing serious criminal charges simply do not realize that like doctors, lawyers have different "specialties" and have specialized training and experience in those areas of the law.

Many attorneys handle criminal defense cases only for the excitement and novelty of the case and use civil cases, such as divorce, business transactions and wills, as the main source of their income. This criminal defense practice may be satisfactory if you are fighting a traffic ticket, but is not adequate if you are fighting for your freedom or your driving privilege!

Understand that California drunk driving - driving under the influence (DUI), unlike sex crimes and other criminal charges, are complex legal matters rooted in very detailed scientific DUI research and specialized Drunk Driving documentation which is not readily known by all California criminal defense attorneys.

A true California DUI lawyer should have the necessary California drunk driving defense attorney experience and California DUI attorney specialist qualifications.

A California DUI criminal defense attorney should attend and teach California DUI and drunk driving seminars on a regular basis, so he or she can keep up to date on all of the current issues in the California DUI / DWI / drunk driving specialized area of law.

A California DUI criminal defense lawyer is much different than a California criminal defense attorney.

Felony California DUI & Hit & Run criminal attorney news

San Diego Criminal Attorney DUI California defense lawyer news

California DUI news

Felony DUI charges were filed Wednesday against a Lake Elsinore man accused of a California DUI - drunk driving and causing the death of another motorist, then fleeing the crash scene in his brother-in-law's vehicle.

Isaac Flores-Palacios, 32, is charged with hit-and-run with death, California DUI with bodily injury, California DUI with injury, being an unlicensed driver and failure to show evidence of insurance.

Javier Delfino-Hernandez, 29, of Homeland, was charged with being an accessory in a felony, for allegedly helping his brother-in-law flee the scene of the crash that killed 66-year-old Ben Hernandez last Sunday afternoon.

Police were called about 4 p.m. Sunday to Lakeshore Drive and Avenue 6, where Hernandez was ejected from his 1986 pickup truck when it collided with a 1998 Ford Ranger, alleges Lake Elsinore police Sgt. Ron Heim.

Witnesses told investigators that the driver of the Ranger had run off and was picked up a short distance away by another motorist.

Delfino-Hernandez, who was on probation for driving under the influence, has a warrant out for his arrest in connection with a deportation order.

Risky Business star busted for California DUI

Rebecca De Mornay, who is probably best known for her role in "Risky Business," was arrested for California DUI - drunk driving.

According to the Beverly Hills Police who confirmed the news on Tuesday, the 48-year-old actress, who was driving alone, was taken into custody the night before Halloween after she was pulled over for an unknown traffic violation.

The officers allegedly "immediately detected an odor of an alcoholic beverage," Beverly Hills Police Department and administered a series of California DUI field sobriety tests.

Since she made a name for herself more than twenty years ago in "Risky Business" playing alongside Tom Cruise, De Mornay appeared in films such as "The Hand That Rocks the Cradle," "Backdraft," "Lords of Dogtown" and "Wedding Crashers." Most recently she made an appearance in HBO’s short-lived "John from Cincinnati.”

She can next be seen in Bruce Sweeney’s "American Venus," where De Mornay plays a deeply disturbed mother, who can’t let go of her daughter who’s pursuing her dream of becoming an Olympic athlete.

She was very cooperative during the California DUI arrest.

De Mornay, whose blood-alcohol level allegedly registered at 0.09 percent, slightly above the legal 0.08 limit, was later booked for California DUI and released at around 1 a.m. after posting $5,000 bail. Her California DUI court date is pending.

Her California DUI criminal defense attorney will be protecting her rights.

Actress Kirstern Storms pleads no contest to driving with .08% BAC (California DUI news)

San Diego Criminal Attorney - dui lawyer defense news

LOS ANGELES California DUI news: "Kim Possible" actress Kirsten Storms pleaded no contest on Wednesday to a California DUI - drunk driving charge and will enter an Alcoholics Anonymous program.

Storms voices the snippy cheerleader Bonnie Rockwaller on the Disney animated series. She also plays Maxie Jones on ABC's "General Hospital" and was Belle Black on NBC's "Days of Our Lives" from 1999 to 2004.

Storms, 23, was not in court but entered the plea through her attorney to one count of driving with a blood-alcohol level of .08 or more — right at the legal limit for driving in California.

A "no contest" plea is a plea-bargain deal in which the defendent does not admit guilt but agrees to pay the penalty for a crime.

A Superior Court commissioner ordered her to attend a dozen AA meetings and complete a 90-day alcohol program, city attorney's spokesman Frank Mateljan said. She also must pay $1,643 in fines and penalties and was placed on three years of probation.

"This is standard for first-time offenders," Mateljan said.

Storms was arrested Sept. 7 in the San Fernando Valley after California Highway Patrol officers said they saw a lighted cigarette tossed from her blue Mercedes-Benz on the Hollywood Freeway.

Officers noticed "the odor of an alcoholic beverage" coming from the car and Storms was arrested after failing sobriety tests, a CHP 202 report maintains.

Strike priors in California DUI or face lots of prison

California DUI criminal defense lawyer

Filed 11/6/07 P. v. Chavez CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

v.

ANTONIO GONZALEZ CHAVEZ

Defendant and Appellant.
F051052
(Super. Ct. No. F06901601-5)

O P I N I O N


THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Kent W. Hamlin, Judge.

Monica Lynch, 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, Louis M. Vargas and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

A jury convicted appellant Antonio Gonzalez Chavez of felony driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 1); in a separate proceeding, the court found true allegations that appellant had suffered three prior convictions of driving while having a blood alcohol content level of .08 percent or more (Veh. Code, § 23152, subd. (b)), within the meaning of Vehicle Code section 23550; and appellant pled guilty to driving at a time his driving privilege had been revoked or suspended for driving while under the influence of alcohol (Veh. Code, § 14601.2, subd. (a); count 3), a misdemeanor. The court imposed the three-year upper term on count 1. The court also found appellant to be in violation of probation in a separate case, and imposed a concurrent term in that case.

On appeal, appellant contends he was denied his “rights to trial by jury and proof beyond a reasonable doubt” under the United States Constitution because the trial court imposed the upper term on count 1 based on its own findings of certain aggravating factors. The People argue appellant has forfeited this claim because he did not raise it at sentencing, and that in any event, appellant’s challenge to the imposition of the upper term is without merit. We will affirm.

BACKGROUND

The court sentenced appellant on August 21, 2006. The court found no circumstances in mitigation and found the following as circumstances in aggravation: appellant had been convicted of other crimes for which consecutive sentences could have been imposed, he had suffered numerous prior convictions, “perhaps, not of increasing seriousness, but of consistent seriousness”; he had served a prior prison term; he was on probation when the instant offense was committed; and his prior performance on parole or probation has been unsatisfactory. There is no dispute, and we conclude, that each of these factors is supported by the record.

DISCUSSION

The Law

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), the United States Supreme Court held, “Other 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.) The high court reaffirmed this rule in Blakely v. Washington (2004) 542 U.S. 296, 301 [124 S.Ct. 2531, 2536] (Blakely).

In 2005, in People v. Black (2005) 35 Cal.4th 1238 (Black I), the California Supreme Court held that the imposition of upper terms under the version of California’s Determinate Sentence Law (DSL) then in effect2 did not constitute an increase in the penalty for a crime beyond the statutory maximum, and therefore “the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence ... does not implicate a defendant’s Sixth Amendment right to a jury trial.” (Id. at p. 1244.)

Subsequently, in January 2007, the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) considered whether the DSL violates the constitutional principles set forth in Apprendi and Blakely. Concluding that Black I was wrongly decided, the high court held: “Under California’s DSL, an upper term sentence may imposed only when the trial judge finds an aggravating circumstance. [Citation.] … [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, ... the middle term prescribed in California’s statutes, not the upper term, is the relevant statutory maximum. [Citation.] (‘[T]he “statutory maximum” ... is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ (emphasis in original)). Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, [citation], the DSL violates [the] … bright-line rule [announced in Apprendi and reaffirmed in Blakely]: Except for 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.’ [Citation.]” (Cunningham, supra, 127 S.Ct. at p. 868.)

In July 2007, the California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), held that the exception to the jury trial requirement recognized in Apprendi, Blakely, and Cunningham for the “fact of a prior conviction” (Black II, supra, 41 Cal.4th at p. 818) applies not only to the fact that a conviction occurred, but also to determinations that a defendant has suffered numerous prior convictions of increasing seriousness (id. at pp. 819-820).

The Black II court also held the existence of even one aggravating factor, properly found in accordance with Cunningham and its antecedents, is sufficient to make a defendant constitutionally eligible for an upper term sentence. (Black II, supra, 41 Cal.4th at p. 813.) In such a case, the court may then rely upon other factors not determined in accordance with Cunningham, in its exercise of sentencing discretion. (Ibid.) The imposition of an upper term under those circumstances does not violate the defendant’s constitutional right to trial by jury. (Id. at p. 816.)

In People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), decided the same day as Black II, our Supreme Court held that the trial court, in imposing an upper term based on aggravating factors that were based on the facts of the underlying crime, none of which were admitted by the defendant or found true by the jury, violated the defendant’s Sixth Amendment right to trial by jury. (Sandoval, supra, 41 Cal.4th at pp. 837-838.) The court also held the error was not harmless. (Id. at p. 843.) Finally, the court rejected the People’s argument that the defendant’s challenge to his sentence was forfeited by the defendant’s failure to object at sentencing, because the defendant was sentenced after the decision in Black I, which was binding on trial courts, and therefore a request for a jury trial would have been futile. (Sandoval, at p. 837, fn. 4.)

Forfeiture

As indicated above, appellant was sentenced in 2006, after the decision in Black I and before the Supreme Court’s decision in Cunningham. Therefore, notwithstanding appellant’s failure to object, his challenge to the imposition of the upper term is properly before us. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)

The Merits

As also indicated above, the trial court in the instant case imposed the upper term on count 1 based on, inter alia, its finding that appellant had suffered numerous prior convictions of “consistent,” if not increasing, seriousness. Thus, the court based its upper term decision, in part, on at least one factor falling within the prior conviction exception. (Black II, supra, 41 Cal.4th at pp. 819-820.) And because one aggravating factor was established in accordance with constitutional requirements, the imposition of the upper term did not violate appellant’s right under the United States Constitution to trial by jury. (Id. at p. 813.)3

DISPOSITION

The judgment is affirmed.



* Before Levy, Acting P.J., Dawson, J., Kane, J.,



2 The Legislature has amended the DSL. (Stats. 2007, ch. 3, § 2, eff. Mar. 30, 2007.) All references to the DSL are to that statute as it read prior to this amendment.



3 We offer no opinion as to whether any of the other circumstances in aggravation found by the court fall outside the prior conviction exception to the Apprendi/Blakely/Cunningham rule.

License plate must entirely unobstructed

Important California DUI criminal defense lawyer case

People v. White (2001) 93 CA4th 1022; 113 CR2d 584:

The defendant was pulled over because the trailer hitch ball on his vehicle was blocking the license plate.

After stopping the defendant's truck for the license plate violation, the officer cited him for a California Drunk Driving - DUI and driving on a suspended license.

The California DUI trial court granted the defendant's motion to suppress the evidence relating to the other charges as it interpreted VC §5201 to be limited to dirt and grime obscuring a license plate. Thus, the stop was not lawful.

The appellate court determined that the "clearly visible" requirement of §5201 meant that the view of the license plate be entirely unobstructed.

As the defendant's license plate was partially obstructed from view by a trailer hitch ball violated §5201, the police officer had lawful means to detain the vehicle and the defendant.

The trial court's grant of the motion to suppress was reversed.

Free strategy evaluation for California drunk driving criminal lawyer

California DUI criminal attorney help:

A free Evaluation at http://www.SanDiegoDUI.com/survey.html for your best San Diego DUI defense attorney strategy and to vigorously protect your important driving privilege.

DUI Checkpoint California San Diego Criminal Attorney news

CLAREMONT, California DUI attorney news

A California drunk driving and driver's license checkpoint will take place at undisclosed location in the city this weekend.

The California DUI checkpoint will take place at 6 p.m. Friday and end at 2 a.m. Saturday, according to a Claremont Police Department news release.

Motorists will be stopped to see if they are California DUI / drunk driving / under the influence of alcohol or drugs, have a seat belt on and possess a valid driver's license.

The National Highway Traffic Safety Administration through a California Office of Traffic Safety grant funds the program.

Glatman - California DUI blood test report case good law

Lapse of memory a factor in document executed after act
(e.g. California DUI alcohol report dated after actual analysis)

Filed 9/12/07
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL PEDRO QUITIQUIT,
Defendant and Appellant.
D050385
(Super. Ct. No. E040315)
APPEAL from a judgment of the Superior Court of Riverside County, James S.
Hawkins, Judge. Reversed.
Catherine White 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, Ronald A. Jakob and David
Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
The critical issue on this appeal is whether the trial court erred in admitting
evidence of a declarant's statements to her doctor and a police officer that the defendant
had caused her neck injury seven weeks earlier, pursuant to the "physical injury"
2
exception to the hearsay rule for statements made "at or near" the time of the injury.
(Evid. Code, § 1370, subd. (a)(3).) (All further statutory references are to the Evidence
Code except as otherwise noted.) We conclude that the statements were not made at or
near the time of the injury and that the statements to the officer were not made under
circumstances indicating their trustworthiness and thus none of the statements qualified
for admission pursuant to section 1370. We reverse the judgment on this basis without
reaching (1) the alternative issue of whether the admission of the declarant's statements to
the police officer also violated the defendant's confrontation rights as described in
Crawford v. Washington (2004) 541 U.S. 36 (Crawford), (2) the related issue of whether
the defendant is precluded from asserting his confrontation rights pursuant to the
forfeiture by wrongdoing doctrine (see People v. Giles (2007) 40 Cal.4th 833, 840-854),
and (3) the defendant's contention that the court's imposition of an upper term sentence
violated his constitutional rights to a jury trial under Cunningham v. California (2007)
549 U.S. __ (127 S.Ct. 856).
FACTUAL SUMMARY
In early 2002, the defendant, Michael Pedro Quitiquit, and his wife of 15 years,
Martina Villanueva, were separated, although Quitiquit periodically stayed with
Villanueva in her mobile home in Indio. (All further designated dates are in 2002 except
as otherwise noted.) Villanueva's son, Anthony Jara (then age 31), and three of the
couple's children, Martin (age 22), Lorraine Julie (age 17; referred to by the parties, and
herein, as Julie), and Tina (age 16), lived with Villanueva at that time.
3
Late in the evening of March 6, while Villanueva and Quitiquit were in her
bedroom, they got into an argument. A week later, Villanueva went to the doctor,
complaining of various symptoms, including numbness in her right cheek, ear pain, and
weakness and numbness on the left side of her body, which she said she had been
experiencing for one to two weeks; she was ultimately diagnosed with, and prescribed
antibiotics for, an ear infection.
Villanueva experienced increasing numbness, as well as additional symptoms,
over the next week and again consulted with her doctor. Villanueva told the attending
nurse practitioner that she had "no known injury to [her] neck," although an X-ray of her
cervical (upper) spine taken the next day revealed that she had a degenerative condition
in the back of her neck that could have been caused by "prior injuries . . . or arthritis."
Because of increasing physical difficulties, Villanueva stopped working as a shoe
department manager at the end of March and went back to see her doctor again in early
April. During a visit on April 6, Villanueva indicated that she had been experiencing
physical problems for three to four weeks. An MRI of Villanueva's head and cervical
spine showed that she had degenerative disk disease, a small disk herniation that could
have been caused by an injury and swelling in her upper spine.
On April 14, after an argument between Quitiquit and Julie relating to Villanueva's
deteriorating condition, Julie and two of her sisters took Villanueva to the hospital.
Villanueva was treated in the emergency room and then admitted to the hospital by
Internist Richard Kyaw. An MRI and X-ray of her spine showed "extensive signal
alteration" of her cervical and thoracic spine, possibly as a result of traumatic injury,
4
although she reported that she had no "prior history of . . . trauma." She was prescribed
high-dose steroids to reduce the inflammation of her spinal cord.
On April 24, after having been at the hospital for approximately nine days,
Villanueva reported for the first time that Quitiquit had twisted her neck. Hospital staff
promptly notified the police of Villanueva's accusations and the next day, Indio Police
Officer Jeremy Hellawell telephoned Villanueva to investigate her statements. During
the call, Villanueva told him that during an argument on March 6, her husband
approached her as she laid on her bed, grabbed her head with both hands (one under her
chin and the other behind her head) and pulled her off of the bed while twisting her neck.
Based on the nature of Villanueva's statements, Indio Police Officer Hellawell
went with a second officer to the hospital to interview Villanueva in person. Although
Villanueva was sleepy and "a little bit out of it," she reiterated what she had told Officer
Hallowell on the phone and described the symptoms she had experienced since the
incident. Villanueva made clear, however, that she was not interested in pressing charges
against Quitiquit for the abuse.
The officers also interviewed Julie, who was at the hospital visiting Villanueva.
She appeared to be very angry after hearing Villanueva's statements and told Officer
Hellawell that although she had not seen anything on the night of the incident, she had
heard her mom yell out her father's name during the argument. After completing the
interview with Julie, Officer Hellawell issued an all-points report calling for Quitiquit's
arrest.
5
Villanueva was discharged from the hospital on April 25 (the same day that
Officer Hellawell interviewed her) despite the fact that there had been no improvement in
her condition. The hospital doctors were unable to reach a consensus as to the cause of
Villanueva's problems and no official specific diagnosis was made, although the general
diagnosis was that she had symptoms from an acute cervical spine injury or condition,
accompanied by an infection.
Villanueva's physical problems continued to worsen and by July 2, she had
permanent partial paralysis of her arms and legs. Although Villanueva had some range of
movement, she could not walk on her own; in addition, she had lost the ability to control
her bladder and bowels and was suffering from neuropathic pain, all as a result of an
incomplete spinal cord injury in her cervical (upper) spine. Villanueva underwent neck
surgery in September to permit a biopsy of her spinal cord and had "significant recovery"
of her left arm strength and regained some mobility as a result of rehabilitation efforts,
although her partial paralysis, loss of control of her bladder and bowels, and pain
remained; she was also receiving treatment for depression.
The police arrested Quitiquit on a charge of inflicting violence on Villanueva.
However, after being rehospitalized, Villanueva died in late December. Forensic
pathologist, Mark Scott McCormick, performed an autopsy of her body; his review
revealed that Villanueva had numerous complications as a result of quadriplegia,
including chronic inflammation of her abdomen, pneumonia, a sacral decubitus ulcer (a
breakdown of the skin at the tailbone), swelling of her brain and a blood infection, as well
as an area of degeneration in her spinal cord.
6
The prosecution filed a new felony complaint against Quitiquit for murder as well
as spousal abuse. Prior to trial on the charges, Quitiquit moved in limine to exclude
evidence of Villanueva's statements to Dr. Kyaw and Officer Hellawell on the basis that
the statements were hearsay and that their admission would violate his Sixth Amendment
confrontation clause rights under Crawford, supra, 541 U.S. 36. The prosecutor
countered that all the statements were admissible under the section 1370 exception to the
hearsay rule and that the admission of Villanueva's statements to Officer Hellawell would
not violate Quitiquit's confrontation clause rights because those statements were made at
a pre-investigation stage and were thus not testimonial in accordance with Crawford.
After extensive argument, the trial court agreed that the statements were admissible and
denied Quitiquit's motion in limine.
At trial, the prosecution's theory was that Quitiquit caused Villanueva's death by
violently twisting her neck during the March 6 argument. In support of this theory, the
prosecutor introduced the evidence of Villanueva's statements to Dr. Kyaw and Officer
Hellawell, as well as testimony by Anthony and Julie about the March 6 argument.
Anthony testified that as he was falling asleep, he heard Quitiquit getting angry and
his mother respond by saying something like "Go ahead. Do it." He then heard Quitiquit
"grunting" and Villanueva "gasp" for air and say "stop" in a frightened tone of voice.
Anthony called out to Villanueva to see if she was all right and Villanueva responded in a
normal tone of voice that she was "fine." Anthony heard his stepfather leave shortly
thereafter. Although Anthony did not see his mother the next morning, when he returned
7
to the house a few days later, he saw Villanueva rubbing her neck as if she was in pain.
Villanueva explained away the pain by telling him that she had "slept wrong."
Julie testified that, although her father was not home when she went to bed on
March 6, she later awoke when she heard her mother crying and yelling out his name.
Despite her earlier statements to Officer Hellawell that she did not see anything that
happened during the argument that night, Julie testified that she went to check on
Villanueva and saw Quitiquit standing over her mother, who was lying on her bed. She
testified that Quitiquit angrily told her to go back to bed and she complied and that she
heard her father leave the home 10 to 15 minutes later. Julie testified that the next
morning, she noticed Villanueva putting warm rags on her neck and walking with a limp.
The prosecution called Dr. McCormick to testify as to the results of the autopsy
and his conclusion that Villanueva died from complications of quadriplegia (most
particularly sepsis) resulting from direct trauma to her neck, vascular trauma in that area
or both. Prosecution expert Dr. Lorne Label testified as to his understanding that
Villanueva's head was "pulled, hyperextended back and twisted, and then [she was]
thrown to the ground . . . in a very violent manner" and that Villanueva's reported
symptoms and the autopsy results were consistent with such an injury. He opined that
those forces, rather than other causes, resulted in injury to Villanueva's cervical spinal
cord and that that injury caused her ultimate quadriplegia and death.
Quitiquit's defense had two components. First, the defense focused on discrediting
Villanueva's statements to Officer Hellawell, as well as the testimony of Anthony and
Julie. Second, the defense challenged the prosecution's evidence of causation.
8
In this regard, Quitiquit elicited evidence that Villanueva had been in two auto
accidents, one in 1997 and another in April 1999, that caused her back pain and neck
pain, respectively. Quitiquit also introduced evidence that Villanueva experienced
physical problems, including problems with her neck, and sought medical treatment for
blood in her urine, side pains while breathing, constipation and hemorrhoids, in 2001.
Quitiquit's daughter Corina testified that Villanueva told her in late June or July of 2002
that the doctors believed a tumor was the cause of her problems.
During defense counsel's cross-examination of Dr. McCormick, the forensic
pathologist admitted that the syrinx (a fluid-filled hole) he found on Villanueva's spine
could have resulted from a whiplash injury (such as from a car accident) but not
manifested any symptoms until a long time afterward. Defense counsel also crossexamined
Dr. McCormick regarding the fact that Villanueva's body had mistakenly been
embalmed before the autopsy was performed, thus limiting the nature of the review that
could be conducted, and questioned him about some conditions with which Villanueva
had previously been diagnosed, but that Dr. McCormick had not noted during his
examination of her body.
Finally, the defense introduced expert testimony from neuroradiologist Brian
Herman, who opined that the likelihood of a trauma causing Villanueva's quadriplegia
was "very, very low" and that her symptoms more likely resulted from a tumor or an
infectious process. Dr. Herman testified that a twisting of Villanueva's neck in the
manner described by Officer Hellawell would have resulted in damage to the bones,
muscles and ligaments surrounding her spinal cord, which Villanueva did not exhibit, and
9
would have resulted in immediate quadriplegia, rather than the progressive type that she
experienced.
The jury acquitted Quitiquit of second degree murder, but convicted him of
voluntary manslaughter and inflicting great bodily injury on a spouse. The trial court
imposed the upper term of 11 years on the voluntary manslaughter count and the upper
term of 4 years, concurrent, on the spousal abuse count, but stayed the latter term
pursuant to Penal Code section 654. Quitiquit filed a notice of appeal from the resulting
judgment in the Court of Appeal, Fourth Appellate District, Division Two; after the filing
of Quitiquit's opening brief, the matter was transferred to this court by order dated
February 16, 2007.
DISCUSSION
1. Admission of Villanueva's Statements
Section 1370, subdivision (a), provides:
"Evidence of a statement by a declarant is not made inadmissible by
the hearsay rule if all of the following conditions are met:
"(1) The statement purports to narrate, describe, or explain the
infliction or threat of physical injury upon the declarant.
"(2) The declarant is unavailable as a witness pursuant to Section
240.
"(3) The statement was made at or near the time of the infliction or
threat of physical injury. Evidence of statements made more than
five years before the filing of the current action or proceeding shall
be inadmissible under this section.
"(4) The statement was made under circumstances that would
indicate its trustworthiness.
10
"(5) The statement was made in writing, was electronically
recorded, or made to a physician, nurse, paramedic, or to a law
enforcement official."
Quitiquit contends in part that the court erred in admitting the evidence of Villanueva's
April 24 and 25 statements under section 1370 because those statements were not made
"at or near the time" of the physical injury or under circumstances indicating their
trustworthiness. (§ 1370, subd. (a)(3), (4).) We review the trial court's determination that
the foundational requirements for admissibility have been met under an abuse of
discretion standard. (People v. Martinez (2000) 22 Cal.4th 106, 120, 126.)
A. The "At or Near" Requirement
Although no reported California decision has addressed the scope of section
1370's "at or near" requirement, our role in interpreting the statutory language is clear; we
must determine the legislative intent by focusing on the statutory terms, giving the words
"their usual and ordinary meaning." (Daun v. USAA Cas. Ins. Co. (2005) 125
Cal.App.4th 599, 605.) Where statutory language is unambiguous, no further
interpretation is necessary or appropriate. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973,
977-978; Daun, supra, 125 Cal.App.4th at p. 605 ["it is our role to ascertain the meaning
of the words used, not to insert what has been omitted or otherwise rewrite the law to
conform to an intention that has not been expressed"].)
The Attorney General contends that the scope of "at or near" requirement of
section 1370, subdivision (a)(3), is defined by reference to the second sentence of that
provision, which specifies that "[e]vidence of statements made more than five years
before the filing of the current action or proceeding shall be inadmissible under this
11
section." (Italics added.) He contends that the latter sentence evidences a legislative
intent to take statements made within five years of the filing of the action outside of the
hearsay rule. However, this argument is belied by the statutory language itself, which
relates to the amount of time from the time the statements are made and the time an
action arising out of the injuries is filed. (§ 1370, subd. (a)(3).) It has no bearing on the
scope of the "at or near" requirement, which relates to the amount of time between the
threat or infliction of the injury and the declarant's statements to the testifying witness.
The plain meaning of the phrase "at or near" denotes a time close to the infliction
of the injury -- which in most circumstances will be within hours or days, rather than
weeks or months. (See Glatman v. Valverde (2006) 146 Cal.App.4th 700, 704 [forensic
report of a driver's blood alcohol level, prepared a week after his blood was tested, was
not made "at or near" the time of the blood test as required for the admissibility of a
public record under § 1280].) By imposing this requirement in addition to requiring that
there be other indicia of the statements' trustworthiness (§ 1370, subd. (a)(3), (a)(4)), the
Legislature evinced its intent to limit the section 1370 hearsay exception to those
statements made close in time to the infliction of the injury, to provide some assurance
that the statements would relate to facts fresh in the declarant's mind and reduce the risk
that the statements resulted from the declarant's prevarication or coaching by third
parties. (See People v. Kons (2003) 108 Cal.App.4th 514, 522-523; see also People v.
Martinez, supra, 22 Cal.4th at p. 128.)
Such an interpretation is supported by legislative history materials underlying
section 1370. Earlier versions of the proposed legislation did not include the "at or near"
12
requirement, but instead provided that the infliction or threat of harm could not be
"remote," under the circumstances, from when the statement was made. (Sen. Amend. to
Assem. Bill No. 2068 (1995-1996 Reg. Sess.) June 24, 1996, § 1.) However, after the
Litigation Section of the California State Bar objected that the proposed bill's failure to
require a "temporal connection" between the unavailable witness's statement and the
event to which it related (i.e., the infliction of the threat or injury) might facilitate the
fabrication of statements to support a particular litigant's position (for example, in divorce
cases) (Barry Rosenbaum, State Bar Litigation Section, Legislative Com., mem. to Larry
Doyle, Director, Office of Governmental Affairs re Assem. Bill No. 2068 (1995-1996
Reg. Sess.) May 28, 1996, p. 3), the bill was amended to include the "at or near"
language, as proposed by the Litigation Section so that there would be "a short time
frame" between the making of the statement and the event to which it related. (Sen.
Amend. to Assem. Bill No. 2068 (1995-1996 Reg. Sess.) June 24, 1996, § 1; see also
Sen. Com. on Criminal Procedure Analysis of Assem. Bill No. 2068 (1995-1996 Reg.
Sess.) as amended June 17, 1996.)
Although a trial court retains broad discretion to determine whether a particular
statement was "at or near" the infliction of the injury for the purposes of section 1370,
subdivision (a)(3), we conclude that absent special circumstances, a statement about a
physical injury made almost two months after its infliction does not satisfy the statutory
time limit. Here, Villanueva started seeing doctors within a week after her purported
injury and had numerous opportunities, as well as a motivation, to give her medical
providers about accurate information about circumstances that may have caused her
13
injuries. Villanueva specifically denied that she had suffered any trauma to her neck until
almost two months after the incident, a time period during which she would have had an
opportunity to contrive a story or be coached by her children, at least one of whom was
quite angry at Quitiquit, to do so. Under these circumstances, we conclude that section
1370's requirement that the statement be made "at or near" the time of the event is not
satisfied.
B. The Trustworthiness Requirement
With respect to Villanueva's statements to Officer Hellawell, we also agree with
Quitiquit's contention that the prosecution failed to provide a sufficient foundation to
show the statements were made under circumstances showing they were trustworthy.
(§ 1370, subd. (a)(4).)
"Circumstances relevant to the issue of trustworthiness include, but
are not limited to, the following:
"(1) Whether the statement was made in contemplation of pending
or anticipated litigation in which the declarant was interested.
"(2) Whether the declarant has a bias or motive for fabricating the
statement, and the extent of any bias or motive.
"(3) Whether the statement is corroborated by evidence other than
statements that are admissible only pursuant to this section." (§ 1370,
subd. (b).)
The Attorney General contends that Villanueva's initial refusal to prosecute
Quitiquit establishes that her statements were not made in contemplation of litigation, but
instead for the purpose of making a paper trail so that she could get a protective order
against him, and that she did not have any bias or motive for fabricating the statements.
14
However, there are several problems with this argument. First, there is no evidence in the
record to establish that Villanueva's motivation for the disclosure was to obtain a
protective order. Second, such a motivation would in any event establish that the
statements were made in contemplation of litigation in which Villanueva would have
been the applicant seeking relief. Finally, there is no basis for believing that her
statements were accurate or that she had no motive to lie. (See People v. Pantoja (2004)
122 Cal.App.4th 1, 13 [a person seeking a restraining order has an interest in the outcome
and thus has a "potential bias[] and a motive to stretch the truth"].)
Further, Villanueva's specific statements to Officer Hellawell were not
substantiated by other admissible evidence. Other than Villanueva's general statement to
Dr. Kyaw that her husband had twisted her neck, there was no corroboration for the
version of the events she described to Officer Hellawell, a violent, deliberate and
intentional act in which Quitiquit grabbed her under her chin, twisted her neck and threw
her from her bed onto the floor. Julie testified that she heard her parents arguing and then
saw her father standing over her mother. Anthony testified that during the argument, he
heard Quitiquit grunt and Villanueva gasp for air. Neither witness testified to hearing or
seeing anything that would corroborate that Quitiquit violently threw Villanueva to the
floor by grabbing and twisting her neck, despite the uncontroverted evidence that the
mobile home had thin doors through which sound easily traveled.
Additionally, Villanueva spent substantial time with her children while in the
hospital, providing an opportunity for them to contrive a story to explain Villanueva's
medical condition. This opportunity to reflect and deliberate on the events rendered the
15
accuracy of Villanueva's belatedly disclosed description of events to be inherently
suspect (see People v. Kons, supra, 108 Cal.App.4th at p. 524 [noting the fact that the
victim was "visiting with friends [at the hospital], who may or may not have been able to
coach him about his statement" was a factor in establishing the victim's statement to
police officers was not trustworthy]), particularly in light of her earlier denials that she
had suffered any trauma.
An equally significant factor relating to the trustworthiness of Villanueva's
statements to Officer Hellawell was the uncontroverted evidence that she was partially
"incoherent" and was in a "sleep state" at the time she made the statements. Although
Officer Hellawell said he believed Villanueva understood what she was saying, there is
substantial question whether a person who is making statements in a "sleep state" is able
to accurately recall events from seven weeks earlier or is accurately able to communicate
her recollection of those events. Given her medicated condition and the fact that she had
suffered substantial pain for the previous six weeks, there is a risk that Villanueva's
recollection of the events was influenced by the serious symptoms she was suffering at
the time she made the statements.
The evidence at trial thus did not establish that Villanueva's statements to Officer
Hellawell were trustworthy so as to permit admission of the statements under section
1370. Absent the opportunity for cross-examination to test the veracity of Villanueva's
statements, the jury was presented with a graphic description of Quitiquit's conduct that
he could not fairly challenge at trial.
16
C. Conclusion
The prosecution failed to show that Villanueva's statements to Dr. Kyaw and Officer
Hellawell were made "at or near" the infliction of the injury to which the statements related
or that the statements to Officer Hellawell were made under circumstances showing the
statements were trustworthy. Thus, the court erred in admitting the statements under section
1370.
2. Prejudice
The admission of hearsay statements erroneously admitted under section 1370
constitutes reversible error "if it is 'reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.'" (People v. Pantoja,
supra, 122 Cal.App.4th at p. 13, quoting People v. Watson (1956) 46 Cal.2d 818, 836.) In
his opening brief, Quitiquit argued that the admission of Villanueva's statements to Officer
Hellawell and to Dr. Kyaw were prejudicial, a claim that the Attorney General has made
no attempt to dispute despite having been granted an opportunity to file a supplemental
response relating to that issue. On our review of the entire record, we agree the error was
prejudicial under the Watson standard.
The centerpiece of the prosecution's theory in the case was that Quitiquit was
guilty of murder and/or manslaughter because of the violent manner in which he
committed the crime, a theory that was almost entirely dependent on the admission of
Villanueva's statements to Officer Hellawell concerning Quitiquit's conduct on March 6.
At the outset of her closing argument, the prosecutor stated that Quitiquit had "sealed
[Villanueva's] fate by pulling her off the bed, twisting her neck in a jerking motion, and
17
[throwing] her down to the floor." The prosecutor quoted or paraphrased Villanueva's
statements to Officer Hellawell at least eight more times during the remainder of her
argument, emphasizing that those statements established Quitiquit's malice (a necessary
element of the murder charge) or conscious disregard of the danger to Villanueva's life
(an element of the lesser included offense of voluntary manslaughter).
Further, the record establishes that the evidence of Villanueva's statements to Officer
Hellawell were important to the jury's decision-making. Shortly after deliberations began,
the jury asked to see Officer Hellawell's written report of his interview with Villanueva.
After the court denied the request because the report was "not in evidence," the jury asked to
have Officer Hellawell's testimony re-read, strongly suggesting that the inadmissible
evidence was a factor in their decision to convict Quitiquit. (See Scott v. County of Los
Angeles (1994) 27 Cal.App.4th 125, 152 [jury's requested rereading of erroneous jury
instruction is a relevant factor in assessing prejudice].)
Because the error in admitting Villanueva's hearsay statements to Officer
Hellawell and Dr. Kyaw went to the heart of the prosecutor's case against Quitiquit, it
was prejudicial as to both counts of which he was convicted. Accordingly, we must
reverse the judgment of conviction on the basis of that error.
18
DISPOSITION
The judgment is reversed.
CERTIFIED FOR PUBLICATION
McINTYRE J.
I CONCUR:
O'ROURKE, J.
1
HALLER, J., Concurring.
The majority concludes Villanueva's statements to Dr. Kyaw and Officer
Hellawell were inadmissible hearsay. For the reasons explained below, I respectfully
disagree with the majority's analysis on this issue. However, I concur in the result
because the admission of Villanueva's statements to Officer Hellawell constituted
prejudicial error on another ground. As the Attorney General admits, Villanueva's
statements to Officer Hellawell were testimonial. (See Davis v. Washington (2006) 547
U.S. __, __ [126 S.Ct. 2266, 2273-2274]; People v. Cage (2007) 40 Cal.4th 965, 975-
984.) Thus, the admission of the statements violated Quitiquit's constitutional
confrontation clause rights.1 (See Crawford v. Washington (2004) 541 U.S. 36, 42-69.)
The error was prejudicial because Villanueva's statements to Officer Hellawell were the
linchpin of the prosecutor's theory against Quitiquit.
My disagreement with the majority's hearsay analysis rests on my view that the
trial court did not abuse its discretion in concluding Villanueva's statements satisfied the
"at or near" requirement of Evidence Code section 1370, subdivision (a)(3).2 Under this
subdivision, the court must find "[t]he statement was made at or near the time of the
1 In a supplemental brief, the Attorney General asserts for the first time that
Quitiquit waived the confrontation clause violation based on the forfeiture by
wrongdoing doctrine. (See People v. Giles (2007) 40 Cal.4th 833, 840-855.) However, I
am unconvinced the issue can be decided as a matter of law on the record before us.
Unlike Giles, the evidence as to whether Quitiquit's actions were the cause of
Villanueva's death was hotly disputed.
2 All further statutory references are to the Evidence Code.
2
infliction or threat of physical injury." (§ 1370, subd. (a)(3).) The dictionary defines the
word "near" to mean "close" or "not far distant in time, place, or degree." (Webster's
11th Collegiate Dict. (2006) p. 828.) This definition reflects what would be the common
understanding of the word "near." But it is unhelpful because the determination of what
is "near," "close," or "not far distant" is necessarily relative. (See Sublett v. City of
Tulsa (Okla. 1965) 405 P.2d 185, 202 [the word "near" is "a term of relative signification
without positive or precise meaning and locates nothing with any degree of precision"].)
Whether an event is "near" to another event necessarily depends on the perspective of the
observer and the reason or purpose for measuring the time.
This concept of "near" as a flexible measurement of time is reflected in the
California Supreme Court's analysis of the similarly worded "at or near" requirement in
the public records exception to the hearsay rule. (§ 1280, subd. (b)3; People v. Martinez
(2000) 22 Cal.4th 106, 126-128.) In Martinez, the trial court relied on this exception to
admit a computer generated printout of the defendant's criminal history (known as a
CLETS document) for purposes of proving the criminal history, despite that there may
have been a 30- to 90-day delay in recording the relevant information. (People v.
Martinez, supra, at pp. 126-127; id. at pp. 140-141 (dis. opn. of Werdegar, J.).) The
3 Section 1280 provides: "Evidence of a writing made as a record of an act,
condition, or event is not made inadmissible by the hearsay rule when offered . . . to
prove the act, condition, or event if all of the following applies: [¶] (a) The writing was
made by and within the scope of duty of a public employee. [¶] (b) The writing was
made at or near the time of the act, condition, or event. [¶] (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness." (Italics added.)
3
California Supreme Court held the trial court did not abuse its broad discretion in
determining this evidence satisfied the statutory "at or near" element. (Id. at p. 126.) In
so concluding, the Martinez court emphasized that the "at or near" statutory phrase " 'is
not to be judged . . . by arbitrary or artificial time limits, measured by hours or days or
even weeks.' [Citation.] Rather, 'account must be taken of practical considerations,'
including 'the nature of the information recorded' and 'the immutable reliability of the
sources from which [the information was] drawn.' [Citation.] 'Whether an entry made
subsequent to the transaction has been made within a sufficient time to render it within
the [hearsay] exception depends upon whether the time span between the transaction and
the entry was so great as to suggest a danger of inaccuracy by lapse of memory.' (2
McCormick on Evidence (4th ed. 1992) § 289, p. 273, fn. omitted.)" (People v. Martinez,
supra, 22 Cal.4th at p. 128; see also Glatman v. Valverde (2006) 146 Cal.App.4th 700,
703-706 [applying a " 'lapse of memory' " test to section 1280's "at or near" requirement].)
After reviewing section 1370's statutory language and framework and its
legislative history, I am satisfied the Legislature intended to provide the same broad
discretion to a trial court in determining whether a statement was made at or near the time
of the infliction of the injury, and that a lapse-of-memory test is the appropriate guide to
applying the statutory requirement. In enacting section 1370, the Legislature sought to
broaden the circumstances under which hearsay may be admitted at a criminal trial to
ensure a jury will hear the truth about past physical abuse when the victim is no longer
4
available to testify.4 (Concurrence in Sen. Amends., Assem. Bill No. 2068 (1995-1996
Reg. Sess.) as amended Aug. 8, 1996, p. 2.) Although the Legislature imposed limits on
the admissibility of this evidence to protect criminal defendants against false accusations,
the Legislature sought to provide the trial court with substantial discretion to admit
hearsay statements if the court is assured the statements are trustworthy and reliable.
(Ibid.)
Given this legislative intent and the use of the relative term "near," the Legislature
did not impose strict artificial time limits on the admissibility of a hearsay statement
under section 1370, subdivision (a)(3). Rather, the Legislature intended to provide a trial
court discretion to admit a statement if it was made when the incident was fresh in the
victim's mind and not so long after the incident to put into question the statement's
trustworthiness and reliability. This approach is consistent with the view of a leading
commentator on California Evidence law. (1 Jefferson, Cal. Evidence Benchbook (3d ed.
1998) § 18.57, p. 280 [stating that under section 1370 a statement "made within 3 months
of the injury . . . should qualify as being made near the time of injury"].)
Under these principles, there was a substantial evidentiary basis for the trial court
to find Villanueva's statements were made sufficiently "near" the time of the event to
satisfy the statutory requirement. First, the facts supported that the event was still fresh
4 The legislation was enacted as a specific reaction to the trial court's rulings in the
O.J. Simpson trial that excluded certain hearsay statements contained in the victim's
diary. (Concurrence in Sen. Amends., Assem. Bill No. 2068 (1995-1996 Reg. Sess.) as
amended Aug. 8, 1996, p. 2.)
5
in Villanueva's mind. Although the claimed injury occurred seven weeks earlier, the
statement was about a violent traumatic event (rather than a collateral detail) that was not
likely to be forgotten by the injured person.
These circumstances distinguish this case from Glatman v. Valverde, supra, 146
Cal.App.4th 700, upon which the majority relies. (Maj. opn. at p. 11.) In Glatman,
forensic analysts recorded the suspect's blood alcohol level one week after the blood
sample was drawn and analyzed. In concluding the recording was not "at or near" the
event, the Glatman court applied Martinez's lapse-of-memory test and determined there
was no reasonable basis to conclude that the laboratory employees could accurately
memorize and then recall the specific numerical test result one week later. (Glatman,
supra, at pp. 704-705.) This case is materially different. Villanueva was relating a
violent injury that was inflicted on her and for which she remained hospitalized. The trial
court had ample basis to conclude that—unlike a laboratory worker who could not
reasonably "retain all the test results in his or her head"—there was no danger that
Villanueva could not accurately recall this specific incident of violent conduct by her
husband. (Ibid.)
Further, it has long been recognized that a patient's statement to his or her doctor
about the patient's injuries is inherently likely to be true. Although Villanueva's prior
denials are relevant in determining the reliability of her later statements, the trial court
had a reasonable basis to conclude that under the circumstances the prior denials did not
preclude a finding that the statements were timely made. The prosecution presented
evidence that Quitiquit did not want Villanueva to disclose his abusive acts, and
6
presented evidence from which it could be inferred that Villanueva was afraid of her
husband. The trial court had a reasonable basis to find this fear adequately explained
why Villanueva initially refused to disclose the assault to medical personnel or the police.
Additionally, the fact that Villanueva waited to disclose Quitiquit's conduct until
the day before her hospital discharge is consistent with the surrounding circumstances. If
Villanueva believed her physical condition would improve while in the hospital, she
could have believed there was no reason to disclose the neck trauma. However, on the
day before the hospital intended to discharge her, she had not improved and had
continuing debilitating symptoms. At that point, it was reasonable for her to finally
understand that it was necessary to tell the truth to her doctor to obtain proper medical
treatment and to document the issue with the police.
With respect to the majority's concern that Villanueva had time to deliberate on
her statements, the Legislature did not require that a statement under section 1370 be
made "spontaneously while the declarant was under the stress of excitement" of the
event. (§ 1240.) Thus, unlike statements admitted under the spontaneous statement
hearsay exception of section 1240, the Legislature necessarily intended that the section
1370 exception would apply even if the declarant had some time to reflect on his or her
statement. Although the extent of the opportunity for deliberation and reflection is an
important factor in the trustworthiness analysis (§ 1370, subd. (a)(4)), it does not in and
of itself render the hearsay exception inapplicable under the statutory timeliness
requirement (§ 1370, subd. (a)(3)).
7
As with other hearsay exceptions, "[a] trial court has broad discretion in
determining whether a party has established [the statutory] foundational requirements.
[Citation.]" (People v. Martinez, supra, 22 Cal.4th at p. 120.) The determination of what
is " ' "at or near . . ." ' . . . 'is a matter of degree and calls for the exercise of reasonable
judgment on the part of the trial judge.' [Citation.]" (Id. at p. 128, fn. 7, citing 1
Jefferson, Cal. Evidence Benchbook, supra, § 4.8, pp. 114-115.) "A reviewing court may
overturn the trial court's exercise of discretion ' "only upon a clear showing of abuse." '
[Citations.]" (Id. at p. 120.) On the record before us, the trial court did not abuse its
discretion in finding the statements were sufficiently timely to satisfy section 1370,
subdivision (a)(3).
HALLER, Acting P. J.

California Driving part of DUI satisfied even though passenger could have been driving

Prison for California DUI - Driving under the influence of alcohol case

Criminal Defense attorney for California - San Diego Drunk Driving Lawyer news

Filed 11/5/07

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,
Plaintiff and Respondent,

v.

FRANK REYNALDO MARTINEZ,

Defendant and Appellant.
2d Crim. No. B193624
(Super. Ct. No. 2006012792)

(Ventura County)


Frank Reynaldo Martinez appeals his conviction by jury of driving under the influence with a prior felony DUI conviction (Veh. Code, §§ 23550.5, 23152, subd. (a), count 1), driving with a blood alcohol content of 0.08 or more with a prior felony DUI conviction (id., §§ 23550.5, 23152, subd. (b), count 2), two counts of driving under the influence with three or more prior DUI convictions (id., § 23550, counts 3 & 4), and his conviction by court trial of driving on a suspended license (id., § 14601.2, subd. (b), count 5)). The trial court found true allegations in counts 1 through 4 that Martinez had served a prior prison term. (Pen. Code, § 667.5, subd. (b).)1

The court sentenced Martinez to four years in state prison consisting of a three-year sentence for count 1 plus a consecutive one-year term for the prior prison term; concurrent four-year terms for counts 2 through 4, and a concurrent 365-day term for count 5, to be served in any penal institution.

Martinez contends that the prosecution did not establish the corpus delicti of the crime of driving under the influence, that the trial court had a sua sponte duty to instruct the jury on a lesser included offense of attempted driving under the influence, that his sentences on counts 2 through 5 should have been stayed pursuant to section 654 because they arose from one act of driving, and that imposition of the upper term sentences violated his constitutional right to a jury trial. We modify the judgment to stay the sentences for counts 2 through 4, but otherwise affirm.

FACTS AND PROCEDURAL BACKGROUND

California Highway Patrol Officers Adam Woods and Paul Varner saw a silver BMW parked facing the wrong way on Crescent Way at 1:35 in the morning on April 5, 2006. The car's engine was running and the lights were on. Brenda Montes was sitting in the front passenger seat, wearing a seatbelt. She told the officers that Martinez had driven the car to that position about five minutes earlier, and that he was inside AAA Auto Detail Repair, his workplace. The AAA Auto building was on the same side of the street and just slightly west of the BMW. Montes did not testify at trial, and the trial court instructed the jury that they could consider her statement only for its effect on the officers' state of mind, and not for the truth of the matter asserted.

Officer Woods testified that as he approached AAA Auto, Martinez came out of the building. Martinez told Officer Woods that he had driven the car to its present location. The parties stipulated that Martinez was under the influence of alcohol at the time he allegedly drove the vehicle, and that immediately after his arrest, when tested by the California Highway Patrol, his blood alcohol content was 0.14. The officers saw only Martinez and Montes in the vicinity, and there was no other car parked in front of AAA Auto. Officer Varner entered the AAA building and looked around, but saw no one else inside.

Martinez's cousin, Santos Alas, testified at trial that he was the person that parked the BMW in front of AAA Auto on April 5, 2006. Alas testified that he parked it in front of AAA Auto in order to illuminate another car that he intended to jump start. Alas testified that after he parked the BMW, he left in another car to get gasoline. He left at about 11:00 or 11:30 p.m. When he left, only Martinez and Montes remained at AAA Auto.

At the time of arrest, Martinez's drivers license was suspended, he was on parole, and he had numerous other prior convictions for driving under the influence. Martinez waived jury trial on count 5, driving on a suspended license, and on the prior conviction elements of counts 1 through 4. The jury found Martinez guilty of counts 1 through 4. The trial court found him guilty of count 5 and found true the prior conviction elements of counts 1 through 4 and the prior prison term allegations.

Corpus Delicti

Martinez contends that the prosecution did not present sufficient proof of the corpus delicti independent of Martinez's extrajudicial statements. We disagree. The corpus delicti of the crime was established by evidence that an automobile was parked facing the wrong way with its engine running and its headlights on, and evidence that there were only two people in the vicinity, one of whom was in the passenger seat with her seatbelt buckled, and one of whom was intoxicated.

The corpus delicti of a crime must be established independently from the extrajudicial statements of the defendant. (People v. Alvarez (2002) 27 Cal.4th 1161, 1169.) The purpose of the rule is to assure that a defendant has not confessed to a crime that did not occur. (People v. Jones (1998) 17 Cal.4th 279, 301.) A slight or prima facie showing is sufficient to establish the corpus delicti. (People v. Scott (1999) 76 Cal.App.4th 411, 416.) The corpus delicti of the offense of driving under the influence consists of proof that the automobile was being driven by some person who was under the influence of alcohol. (People v. Bowen (1992) 11 Cal.App.4th 102, 106.) Here, an inference that the car was driven is supported by its running engine and lighted headlights. An inference that the driver was under the influence is supported by the stipulation that Martinez was under the influence and the fact that the only other person in the vicinity was sitting in the passenger seat with her seatbelt on. Alas was eliminated as a driver because he left the area at 11:00 or 11:30 p.m., hours before the officers arrived.

"[W]hen it is established by competent evidence that no one in the reasonable vicinity except the suspect acknowledges having been the driver of the car and the suspect has some demonstrable connection with the vehicle, it then becomes a reasonable inference from circumstantial evidence that the suspect was, in fact, the driver." (People v. Moreno (1987) 188 Cal.App.3d 1179, 1189.) In Moreno, a conviction of driving under the influence was reversed based on ineffective assistance of counsel because the corpus delicti was not established and defense counsel did not object to admission of the defendant's extrajudicial statement. In Moreno, the defendant was not in the vehicle when officers arrived, and there were a number of other people in the vicinity who could have been the driver. There was no evidence in Moreno to eliminate the other people as drivers, or to suggest they were passengers. No one was seated in the car. In our case, there was evidence eliminating the only other person in the vicinity as a driver. Montes was seated in the passenger seat, wearing a seatbelt. This supported a reasonable inference that she did not drive.

Martinez points out that there are other reasonable inferences that could be drawn. For example, Montes may have started the car and then moved to the passenger seat. However, the independent proof of the corpus delicti "is sufficient if it permits an inference of criminal conduct, even if a noncriminal explanation is also plausible." (People v. Alvarez, supra, 27 Cal.4th 1161, 1171.) The inference need not be the only inference or even the most compelling inference. (People v. Jones, supra, 17 Cal.4th 279, 301-302.)

Lesser Included Offense

Martinez contends that the court had a sua sponte duty to instruct on a lesser included offense of attempted driving under the influence. A trial court must instruct on a lesser included offense if substantial evidence exists indicating that the defendant is guilty only of the lesser offense. (People v. Manriquez (2005) 37 Cal.4th 547, 584.) In deciding whether the evidence is "substantial," the court considers the "bare legal sufficiency [of the evidence], not its weight." (People v. Breverman (1998) 19 Cal.4th 142, 177.)

Martinez argues that he may have been on his way to drive the car when the officers arrived, in which case the jury could find that he only attempted to drive while under the influence. No evidence was presented at trial that Martinez was on his way to drive the car when the officers arrived. Speculation is not sufficient to require an instruction on a lesser included offense. (People v. Wilson (1992) 3 Cal.4th 926, 941.) We do not reach the question whether the crime of attempted driving under the influence is a lesser included offense to driving under the influence.

Section 654

The trial court issued concurrent sentences on counts 2 through 5. The sentences on counts 2 through 4 must be stayed pursuant to section 654. The sentence on count 5 remains.

Section 654 prohibits multiple punishments for a single act, even though the act constitutes more than one crime. (People v. Solis (2001) 90 Cal.App.4th 1002, 1021.) Section 654 applies if the crimes are part of a single, indivisible transaction. We review the trial court's factual determination that multiple convictions are part of an indivisible transaction under the substantial evidence test. (People v. Martin (2005) 133 Cal.App.4th 776, 781.)

Counts 2 through 4, related to driving under the influence, arose from a single act. The evidence presented at trial was sufficient only to establish that Martinez drove the vehicle once while intoxicated, when he parked the car. Counts 2 through 4 must be stayed pursuant to section 654.

Martinez argues that his conviction for driving on a suspended license also arose from parking the car, and should therefore be stayed. However, multiple convictions for driving under the influence and driving on a suspended license are not precluded by section 654. (In re Hayes (1969) 70 Cal.2d 604, 611.) Martinez is not being penalized twice for one act, he "is being penalized once for his act of driving with an invalid license and once for his independent act of driving while intoxicated." (Id. at p. 607.) Count 5 should not be stayed.

Upper Term

Imposition of the upper term did not violate Martinez's Sixth Amendment right to a jury trial because at least one aggravating circumstance was established by his record of prior convictions. (People v. Black (2007) 41 Cal.4th 799, 816.) Numerous or increasingly serious prior adult convictions warrant imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(2).) Martinez was on parole when he committed the charged offense, and he had numerous prior convictions for driving under the influence. Therefore, Martinez's constitutional right to a jury trial was not violated by the trial court's imposition of the upper term sentences.

We modify the judgment to reflect a stay of sentence pursuant to section 654 regarding counts 2 through 4. The trial court shall amend the abstract of judgment accordingly and forward the amended abstract to the Department of Corrections. We otherwise affirm.

CERTIFIED FOR PUBLICATION.

COFFEE, J.

California DUI Blood Test Report Must Be at or near Time of Analysis

Attorneys DUI California Lawyers Criminal Defense Drunk Driving case

Certified for publication 1/10/07

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRENT ALLEN GLATMAN,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
et al.,
Defendants and Appellants.
G036880
(Super. Ct. No. 05CC10862)
O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Derek W.
Hunt, Judge. Affirmed.
Law Offices of Ronald A. Jackson and Ronald A. Jackson for Respondent.
Bill Lockyer, Attorney General, Jacob A. Applesmith, Assistant Attorney
General, Elizabeth Hong and Celine M. Cooper, Deputy Attorneys General, for
Appellants.
2
The Department of Motor Vehicles (DMV), George Valverde, DMV
director, and R. Sammartino, a DMV hearing officer (collectively, appellants), appeal
after a superior court judge issued a writ commanding the DMV to set aside its
suspension of Brent Allen Glatman’s driver’s license. Appellants contend the court erred
by finding the results of Glatman’s blood test were not timely recorded, as required by
Evidence Code section 1280, subdivision (b). 1 We affirm.
FACTS
On July 24, 2005, Officer J. Baggs stopped Glatman for speeding on
Pacific Coast Highway and observed Glatman exhibited “red watery eyes, slurred speech,
unsteady gait, [and] a strong odor of an alcoholic beverage.” Glatman stated “he had
consumed 4-5 bottles of beer.” He failed several field sobriety tests administered by
Baggs and was arrested by Baggs pursuant to Vehicle Code section 23152, subdivision
(a) (driving under the influence of alcohol). Glatman surrendered his driver’s license to
Baggs and was notified he could request a hearing to challenge the suspension of his
license.
A forensic alcohol examination report (the Forensic Report) prepared by
the Sheriff-Coroner Department’s Forensic Science Services on August 1, 2005, reflected
the following: At 12:30 a.m. on July 25, one hour after Glatman’s arrest, his blood was
drawn for a blood-alcohol concentration (BAC) test. That same day a forensic analyst at
1 All statutory references are to the Evidence Code unless otherwise stated.
Section 1280 provides: “Evidence of a writing made as a record of an act, condition, or
event is not made inadmissible by the hearsay rule when offered in any civil or criminal
proceeding to prove the act, condition, or event if all of the following applies: (a) The
writing was made by and within the scope of duty of a public employee. (b) The writing
was made at or near the time of the act, condition, or event. (c) The sources of
information and method and time of preparation were such as to indicate its
trustworthiness.”
3
the sheriff-coroner’s department analyzed the blood sample and determined Glatman’s
BAC was 0.137. The next day another sheriff-coroner’s forensic analyst analyzed the
sample and determined Glatman’s BAC was 0.135. The two analysts certified these test
results by their signatures dated August 1, 2005, on the Forensic Report, one week after
Glatman’s blood was drawn.
In September 2005, at an administrative per se hearing held before a DMV
hearing officer, Glatman’s counsel objected to the admission into evidence of the
Forensic Report on hearsay and other grounds. Under section 1280’s hearsay exception
for records made by public employees, the Forensic Report was admissible if, among
other requirements, “[t]he writing was made at or near the time of the act, condition, or
event,” as required by subdivision (b) of that section. Glatman’s counsel argued, inter
alia, that suspension of Glatman’s license was unjustified because his BAC tests were not
recorded at or near the time of the blood analysis. The hearing officer suspended
Glatman’s license for one year, finding, inter alia, the certification of the blood test
results was timely.
Glatman petitioned the superior court for a writ of mandate. At the hearing
on the petition, the DMV relied on two reports to establish Glatman’s BAC was greater
than the statutory requisite of .08 percent for driving under the influence of alcohol: (1)
the Forensic Report; and (2) the field sobriety test report of breath tests (preliminary
alcohol screen tests) administered by Officer Baggs showing Glatman’s BAC was 0.132
and 0.122. The court stated the Forensic Report was untimely and the field sobriety test
report might be inadmissible. The court directed the parties to further brief the issue.
After considering the supplemental briefing, the court granted the petition and issued the
writ commanding the DMV to set aside its suspension of Glatman’s license.
4
DISCUSSION
The Court did not Err in Finding the Forensic Report was Untimely
Appellants contend the court erred in concluding Glatman’s blood test
results were not recorded at or near the time of the analysis of his blood sample. They
assert the analysts entered the test results into a computer database soon after completing
each analysis, and argue the “preparation of the [Forensic Report] on August
1, 2005 . . . was simply the retrieval of the recorded information from the computer
database.” Appellants further contend that section 664 “establishes a presumption that
[Glatman’s] blood alcohol test result was recorded in compliance with official duties.”
We review for abuse of discretion the court’s ruling the Forensic Report did
not meet the timeliness requirement of section 1280, subdivision (b). “A trial court has
broad discretion in determining whether a party has established [the] foundational
requirements [of section 1280]. [Citation.] Its ruling on admissibility ‘implies whatever
finding of fact is prerequisite thereto; a separate or formal finding is, with exceptions not
applicable here, unnecessary. [Citation.]’ [Citation.] A reviewing court may overturn
the trial court’s exercise of discretion ‘“only upon a clear showing of abuse.”’” 2 (People
v. Martinez (2000) 22 Cal.4th 106, 119-120 (Martinez).)
Applying this standard of review, we conclude the court did not abuse its
discretion in finding the Forensic Report, prepared “a week later,” was not made “‘at or
[near] the time of the event.’”3 Although appellants assert the analysts promptly entered
2 When ruling on a writ petition challenging an order suspending a driver’s
license, a trial court exercises its independent judgment. (Lake v. Reed (1997) 16 Cal.4th
448, 457.) Generally, an appellate court reviews the trial court’s findings for substantial
evidence. (Ibid.) Here, however, appellants challenge the court’s section 1280 ruling;
the abuse of discretion standard of review therefore applies.
3 The court acknowledged Glatman’s reliance on our opinion in Downer v.
Zolin (1995) 34 Cal.App.4th 578 (Downer), where we stated in a footnote that “a report
prepared nearly a week after the forensic tests were completed does not fall within the
statutory requirement that the report be prepared ‘at or near the time’ of the reported
5
the test results into a computer database, the record contains no support for this assertion.
The computer printout in the clerk’s transcript is dated September 6, 2005, one month
after the date of the Forensic Report. The printout contains no reference to the date on
which the test results were entered into the computer database. Indeed the printout does
not even contain both test results but rather a single, rounded-off result. The record is
also silent as to the recordation procedures followed by the sheriff-coroner’s department.
In short, there is no evidence that Glatman’s test results were recorded in a computer
database (or anywhere else) prior to August 1.
Appellants quote our Supreme Court’s observation in Martinez, supra, 22
Cal.App.4th 106, “that the timeliness requirement ‘is not to be judged . . . by arbitrary or
artificial time limits, measured by hours or days or even weeks.’” (Id. at p. 128.) But the
Martinez court also stated: “‘Whether an entry made subsequent to the transaction has
been made within a sufficient time to render it within the [hearsay] exception depends
upon whether the time span between the transaction and the entry was so great as to
suggest a danger of inaccuracy by lapse of memory.’” (Ibid, italics added.) The
Martinez court held the DMV’s “entry into CLETS [California Law Enforcement
Telecommunications System] of criminal information it receives does not depend on
memory, but simply involves a transfer of information from one form of storage — the
disposition reports — to another — the CLETS database. Under these circumstances, the
Department’s statutory recording duties are sufficiently specific to support the trial
court’s discretionary determination that the CLETS printout met the timeliness
requirement of the official records exception.” (Ibid.)
In contrast, the instant case presents a “danger of inaccuracy by lapse of
memory.” (Martinez, supra, 22 Cal.4th at p. 128.) Appellants concede that, if the
analysts relied on memory, “even a lapse of one day could cast serious doubt about
whether such recordation was made sufficiently ‘at or near’ the time of testing to be
event.” (Id. at p. 582.) The court noted, however, that the Downer statement was dictum
and Downer “was later disapproved by our Supreme Court in other respects.”
6
deemed trustworthy.” But appellants argue that, given the number of tests an analyst
performs each day, it is unreasonable to infer the analyst would try to retain all the test
results in his or her head. The only reasonable inference, according to appellants, is that
“labs have policies and procedures in place to ensure the timely recordation of such
results by analysts.” But an inference may be drawn only if the “proposed conclusion is a
reasonable, logical, and nonspeculative deduction from the facts proved.” (S. C.
Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 539, fn. 12.) Here, the
record is silent as to the department’s recordation policies and procedures, any automatic
recording capability of the testing equipment used, and the average number of tests
performed by an analyst each day.
Appellants rely on Komizu v. Gourley (2002) 103 Cal.App.4th 1001, where
an appellate court upheld a trial court’s finding that an alcohol analysis report was
reliable because “the wording of the report reflected a postponement, not in the recording
of the analysis, but merely in the typing of ‘a journal-type entry.’” (Id. at p. 1007.) Thus,
Komizu involved a transfer of data from one form of recordation to another (as in
Martinez, supra, 22 Cal.4th 106.). Here, in contrast, the Forensic Report’s wording sheds
no light on whether the test results were first recorded on a date earlier than August 1.
And while appellants point out the Forensic Report was prepared only five
working days after the date of Glatman’s arrest, memory is subject to erosion with every
day that passes, whether working or nonworking.
Alternatively, appellants contend section 664 creates a presumption the
analysts timely recorded the test results. Section 664 provides: “It is presumed that
official duty has been regularly performed.” Appellants argue that regulations
promulgated under Health and Safety Code section 100700 (governing laboratories
performing forensic alcohol analysis tests by or for law enforcement agencies) impose an
official duty on forensic analysts to properly record test results. But while those
regulations require laboratories to maintain records, they specify no deadlines or time
7
periods or timeliness requirements governing such recordation. In Yordamlis v. Zolin
(1992) 11 Cal.App.4th 655, the Court of Appeal rejected “the DMV’s attempt to rely on
the presumption that an ‘official duty has been regularly performed . . .’ (. . . § 664) to
establish that [motorist] gave the blood sample within three hours of driving.” (Id. at
p. 661.) The Yordamlis court found “nothing in the language of [Vehicle Code section
21357] that ‘imposes any particular time requirement that can be assumed to have been
met pursuant to the presumption codified by . . . section 664.’”4 (Id. at p. 661.)
Appellants rely on Davenport v. Department of Motor Vehicles (1992) 6
Cal.App.4th 133 (Davenport), where an appellate court recognized a section 664
presumption. (Davenport, at p. 139.) In Davenport, the licensee objected at the
administrative hearing to the admission of the arresting officer’s sworn statement on the
grounds “the document failed to establish that the breath test given to him was given in a
correct manner, that the machine used for the test was operating properly, or that the
officer who administered the test was properly trained.” (Id. at p. 138.) The hearing
officer sustained the order of suspension; the trial court denied the licensee’s petition to
set aside the order. (Id. at pp. 138-139.) The Court of Appeal affirmed the trial court’s
denial of the petition, and recognized a presumption under section 664 that chemical tests
“were administered in compliance with statutory and regulatory requirements.”
(Davenport, at p. 139.) Critical to the Davenport decision, however, were the existence
of a statute and regulations promulgated thereunder which imposed an official duty on
law enforcement officers “to perform blood-alcohol analyses by methods devised to
assure reliability.” (Id. at p. 141.) In another significant distinction from the instant case,
Davenport involved subdivision (c) of section 1280, which mandates that “sources of
information and method and time of preparation” of writings be trustworthy, not the
timeliness requirement of subdivision (b) of section 1280. (Id. at pp. 142-143.)
4 Nor does Vehicle Code section 23612’s mandate that blood test results be
sent to the DMV within 15 calendar days of the date of arrest have any bearing on
whether analysis results were timely recorded.
8
Finally, appellants argue the summary nature of administrative per se
hearings militate against requiring forensic analysts to testify. But there are other ways
of evidencing the prompt recordation of test results, short of analysts testifying — for
example, preparing a laboratory report soon after completing a test, or at least providing
evidence the analysts’ results were truly entered into the computer database immediately
and only printed out later.
The court did not abuse its discretion in finding the Forensic Report was
not prepared at or near the time of the recorded event, as required under section 1280,
subdivision (b). 5
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O’LEARY, J.
5 We need not address appellants’ further contention the court erred in
concluding the evidence did not support a finding Glatman drove with a BAC of at least
0.08 percent, because that contention is predicated on Appellants’ assumption the test
results in the Forensic Report were admissible.
Filed 1/10/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
BRENT ALLEN GLATMAN,
Plaintiff and Respondent,
v.
GEORGE VALVERDE, as Director, etc.,
et al.,
Defendants and Appellants.
G036880
(Super. Ct. No. 05CC10862)
O R D E R
Respondent has requested that our opinion, filed on December 12, 2006, be
certified for publication. It appears that our opinion meets the standards set forth in
California Rules of Court, rule 8.1105(c). The request is GRANTED. The opinion is
ordered published in the Official Reports.
IKOLA, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
O’LEARY, J.

Lawyers California DUI Criminal Defense Attorneys for San Diego

Drunk Driving California DUI criminal defense San Diego attorneys

San Diego County DUI Law Center's criminal practice is limited exclusively to San Diego California DUI / Drunk Driving / DWI defense. We provide discreet, professional representation for our clients who are accused of San Diego California DUI or Drunk Driving.

San Diego California DUI / Drunk Driving criminal defense lawyer Rick Mueller is a skilled trial attorney and negotiator who understands how to investigate, prepare, and present your San Diego California DUI / Drunk Driving criminal & DMV defense.

San Diego California DUI criminal defense attorney Rick Mueller always looks out for your best interests and uses his knowledge, experience and reputation to get the best resolutions one can obtain.

Free San Diego California DUI / Drunk Driving / DMV Consultation:

Fill out our consultation form for a free initial evaluation.

California DUI Attorney

If you have a matter that has a deadline and requires an urgent response, call immediately at 1-800-THE-LAW-DUI.

Repercussions:

When faced with a San Diego California DUI / DWI, you face serious repercussions. Depending on the severity and the number of offenses, you could lose your license, spend time in jail, face thousands of dollars in fines, and, if convicted, the offense goes on your permanent record.

Don't leave your future to chance. Select a San Diego California DUI / Drunk Driving criminal defense attorney who will fight for you. San Diego California DUI / Drunk Driving criminal defense lawyer Rick Mueller will work for dismissal or reduction of your San Diego California DUI charge. Don't let this San Diego California DUI / Drunk Driving arrest record affect your job or your future; contact rick@sandiegodui.com immediately to discuss how to handle your San Diego California DUI - Drunk Driving case.

Take Immediate Action:

You have 10 days from the date of arrest to request a hearing on your driver's license. Failure to do so may result in suspension of your license and fees. It is important that you hire San Diego California DUI / Drunk Driving legal representation for this hearing to challenge the license suspension. A San Diego California DUI / DMV defense lawyer can question the evidence, advise, and support your San Diego California Drunk Driving case.

California DUI over for star actor-comedian Tracy Morgan

Attorneys DUI San Diego Lawyers Drunk Driving California news

TRACY MORGAN COMPLETES PROBATION FOR CALIFORNIA DUI: Star actor had SCRAM anklet removed early due to medical issues.

November 1, 2007

An undisclosed medical problem caused actor-comedian Tracy Morgan to have his alcohol monitoring anklet removed before completing probation for California DUI.

According to TMZ.com, the actor's California criminal defense attorney Blair Berk appeared in a Los Angeles court to inform the judge that Morgan's "probation terms have been fulfilled."

Before making his decision, however, the judge read several letters submitted by medical doctors, and a letter from the SCRAM company verifying a medical issue that led Morgan to remove the device early. Five photos were entered into evidence showing proof of the unidentified medical problem.

Morgan has been apparently & voluntarily been going to a daily blood/breath test and has been attending AA meetings.

Police may enter your house to execute misdemeanor bench warrant

Lawyers San Diego DUI Attorneys San Diego California drunk driving news

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ü No. 06-30645 Plaintiff-Appellee,
v. ý D.C. No. CR-04-00262-WFN
KENNETH DALE GOOCH, OPINION Defendant-Appellant. þ
Appeal from the United States District Court
for the Eastern District of Washington
William F. Nielsen, District Judge, Presiding
Argued and Submitted
September 28, 2007—Seattle, Washington
Filed November 1, 2007
Before: Betty B. Fletcher and Ronald M. Gould,
Circuit Judges, and Stephen G. Larson,* District Judge.
Opinion by Judge B. Fletcher
*The Honorable Stephen G. Larson, United States District Judge for the
Central District of California, sitting by designation.
14463
COUNSEL
Bryan P. Whitaker, Attorney at Law, Spokane, Washington,
for the defendant-appellant.
Jared C. Kimball, Assistant United States Attorney, Spokane,
Washington, for the plaintiff-appellee.
OPINION
B. FLETCHER, Circuit Judge:
Defendant-Appellant Kenneth Dale Gooch appeals his conviction
and sentence for felon in possession of a firearm under
18 U.S.C. § 922(g)(1). Gooch’s appeal focuses primarily on
the district court’s denial of his motion to suppress. He con-
UNITED STATES v. GOOCH 14465
tends that the initial entry into his residence, an entry that led
to the issuance of a search warrant where evidence supporting
Gooch’s conviction was obtained, exceeded the bounds of the
Fourth Amendment because that entry was made to execute
a misdemeanor bench warrant for failure to appear in court.
Consistent with the decisions of other federal courts to consider
the issue, we hold that police possessing a valid bench
warrant for the arrest of a person who has failed to appear
may enter that person’s residence to the extent necessary to
execute the warrant. We also reject as meritless Gooch’s arguments
related to trial and sentencing errors and AFFIRM.
BACKGROUND
On March 20, 2004, Officer Alan Edwards of the Spokane
Police Department approached a car stopped in the road.
Michael A. Conn, whom Edwards knew from a prior arrest
resided at 3010 N. Regal Street in Spokane, was in the passenger
seat. While Officer Edwards was running a warrant
check, Conn jumped out of the car and fled in the direction
of the Regal Street residence. Edwards pursued Conn on foot;
he did not see Conn enter the Regal Street residence but heard
a commotion at the back door, the home’s only useable
entrance. While Edwards waited for backup to arrive, he
received radio confirmation that there was an outstanding
misdemeanor warrant for Conn’s arrest. Edwards had no specific
information regarding the warrant other than it was
related to a misdemeanor charge, and that the warrant bore the
Regal Street residence as Conn’s address. Based on records
the government placed in the record on appeal, it appears the
arrest warrant was a bench warrant issued for Conn’s failure
to appear at a hearing to revoke his probation.
Once backup arrived, Edwards and another officer entered
the residence without consent. The officers immediately went
to Conn’s bedroom, but he was not there. They continued to
search the rest of the Regal Street residence, including a bedroom
rented by Gooch. During the course of their search for
14466 UNITED STATES v. GOOCH
Conn the officers saw, in both Conn and Gooch’s bedrooms,
several residue coated spoons and other paraphernalia suggesting
heroin use. Conn was not found or arrested during the
search; it was later discovered that he had hidden in the attic.
Based on his observations during the attempt to arrest Conn,
Edwards prepared an affidavit for a search warrant for the
Regal Street residence.
The search warrant for the Regal Street residence issued
and was executed on March 28, 2004. When officers entered
Gooch’s bedroom during the execution of the warrant, he was
lying asleep on his bed. The officers announced their presence,
told Gooch to lie on his stomach, and ordered him to
keep his hands visible. Gooch initially complied, but as the
officers approached he moved his hands towards pillows at
the head of the bed. The officers drew their weapons and
ordered Gooch to stop moving. Once Gooch was handcuffed,
the officers discovered three loaded firearms underneath the
pillows on Gooch’s bed.
Gooch moved to suppress on the grounds that the arrest
warrant did not permit the March 20 entry into the Regal
Street residence, and that without that entry the police would
not have had any basis to seek the subsequent search warrant
that led to Gooch’s arrest. The district court, relying on Payton
v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d
639 (1980), concluded that the officers had the limited authority
to enter the Regal Street residence in order to effectuate
the arrest warrant and denied the motion. Although in the district
court Gooch only challenged the manner in which the
arrest warrant was executed, on appeal he also argues that the
warrant was legally defective because it was simply a bench
warrant issued without a proper finding of probable cause.
ANALYSIS
I.
A district court’s denial of a motion to suppress is reviewed
de novo. United States v. Meek, 366 F.3d 705, 711 (9th Cir.
UNITED STATES v. GOOCH 14467
2004). The district court’s factual findings underlying the
decision are reviewed for clear error. United States v. Bynum,
362 F.3d 574, 578 (9th Cir. 2004). “Where no findings of fact
were made or requested, this court will uphold a trial court’s
denial of a motion to suppress if there was a reasonable view
to support it.” United States v. Becker, 23 F.3d 1537, 1539
(9th Cir. 1994).
II.
Although there is a presumption of invalidity attaching to
warrantless entry of a residence, “for Fourth Amendment purposes,
an arrest warrant founded on probable cause implicitly
carries with it the limited authority to enter a dwelling in
which the suspect lives when there is reason to believe the
suspect is within.” Payton, 445 U.S. at 603. See also Steagald
v. United States, 451 U.S. 204, 214 n.7, 101 S. Ct. 1642, 68
L. Ed. 2d 38 (1981) (“Because an arrest warrant authorizes
the police to deprive a person of liberty, it necessarily also
authorizes a limited invasion of that person’s privacy interest
when it is necessary to arrest him in his home.”).
[1] The Ninth Circuit has not previously had occasion to
decide whether a misdemeanor bench warrant for failure to
appear—as opposed to a felony arrest warrant—is sufficient
to permit entry into a residence under Payton. The Second
Circuit, however, in United States v. Spencer persuasively
reasoned that the Court’s decision in Payton permits entry
into a residence to effectuate a valid arrest warrant, regardless
of the precise nature of the underlying warrant. 684 F.2d 220,
223 (2d Cir. 1982), cert. denied, 459 U.S. 1109 (1983).
Rejecting an argument identical to the one that Gooch makes
here—that a misdemeanor bench warrant not premised on a
formal finding of probable cause does not lie within Payton’s
reach—the Second Circuit explained:
The decision of the New York City Criminal Court
Judge to issue a bench warrant constituted a finding
14468 UNITED STATES v. GOOCH
made by a neutral magistrate that [the defendant] had
failed to appear in a pending criminal matter. We
recognize that its issuance did not amount to a judicial
finding of probable cause to Farrest in the traditional
sense . . . . Nonetheless, the police, armed with
the warrant, had authority to find and seize [the
defendant] anywhere they could find him for his failure
to appear in court. Thus, the presence of the
police in the defendant’s room was pursuant to a
direction made by a neutral magistrate. Defendant’s
rights under the Fourth Amendment require no more.
684 F.2d at 223 (citing Payton, 445 U.S. at 582 n.17, 586
n.24); see also id. at 223-24 (“[T]he courts, in striving to safeguard
a suspect’s Fourth Amendment rights when he is
arrested at home, emphasized the necessity that a warrant be
issued by a neutral magistrate. . . . In determining reasonableness,
the nature of the underlying offense is of no moment.”).1
[2] We find the reasoning of Spencer persuasive, and affirm
the district court’s denial of Gooch’s motion to suppress. We
hold that a valid arrest warrant issued by a neutral magistrate
judge, including a properly issued bench warrant for failure to
appear, carries with it the limited authority to enter a residence
in order to effectuate the arrest as provided for under
Payton.2 The Fourth Amendment presumption against war-
1The holding in Spencer, permitting entry into a residence based on a
misdemeanor arrest warrant or a bench warrant for failure to appear, has
been followed in similar cases with near uniformity by the federal courts.
See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 689 (6th Cir.
2006); United States v. Clayton, 210 F.3d 841, 843-44 (8th Cir. 2000);
Cogswell v. County of Suffolk Deputy Sheriff’s Dept., 375 F. Supp. 2d 182,
187-88 (E.D.N.Y. 2005); United States v. Ray, 199 F. Supp. 2d 1104,
1112-13 (D. Kan. 2002); Smith v. Tolley, 960 F. Supp. 977, 991-92 (E.D.
Va. 1997); Heine v. Connelly, 644 F. Supp. 1508, 1514-15 (D. Del. 1986).
2In order to enter a residence to execute an arrest warrant the police
must still have probable cause to believe the suspect is within the residence.
United States v. Gorman, 314 F.3d 1105, 1110-11 (9th Cir. 2002).
UNITED STATES v. GOOCH 14469
rantless entries into the home is designed to protect privacy
interests against uncabined police discretion. Payton, 445
U.S. at 586 (“[W]e have long adhered to the view that the
warrant procedure minimizes the danger of needless intrusions
[into the home].”). Those interests are sufficiently safeguarded
when an entry is premised on the execution of a valid
arrest warrant issued by a judge or magistrate, regardless of
whether that warrant is for a felony, a misdemeanor, or simply
a bench warrant for failure to appear. Here, the police held a
valid warrant for Conn’s arrest, a warrant that bore the confirmed
address of the residence police entered after following
Conn. The entry and subsequent search for Conn were reasonable
and permissible under Payton and the Fourth Amendment.
[3] In so holding, we note that our decision in United States
v. Albrektsen, 151 F.3d 951 (9th Cir. 1998) is not to the contrary.3
In Albrektsen, we held that police were not permitted to pass
beyond the doorway and enter a suspect’s hotel room in order
to execute a misdemeanor arrest warrant. 151 F.3d at 954.
The outcome in Albrektsen, however, was based on the fact
that entry into the arrestee’s room was unnecessary because
the police had already apprehended him in the doorway, and
so our decision there did not turn on the nature of the underlying
warrant. Id. Here, the officers were not able to arrest Conn
at the threshold of his residence, or even in his bedroom,
because Conn fled into the residence and successfully hid in
3Gooch’s reliance on the Washington Court of Appeals decision in State
v. Parks, is also misplaced. 148 P. 3d. 1098 (Wash. Ct. App. 2006). Parks
does not address whether particular forms of warrants provide sufficient
authority for entry into a residence under Payton. Rather, Parks held that
a warrant issued for the defendant’s arrest pursuant to Washington criminal
rule CrRLJ 2.5 based on his failure to appear at trial, was insufficient
where there had never been a prior finding of probable cause to arrest the
defendant at any time in the proceedings. Id. at 1102. Parks is inapplicable
here, where the bench warrant for Conn’s arrest was made for failure to
comply with the terms of probation after a finding of guilty for the underlying
offense.
14470 UNITED STATES v. GOOCH
the attic. Hence, Albrektsen does not place restrictions on
entry based on the character of the warrant at issue, and its
limitations on the scope of entry are likewise not implicated
in this case. Id. at 954 n.5 (“[T]his area of the law is very fact
specific. If, for example, Albrektsen had retreated from the
threshold, [the police] could have followed him in.”). The district
court’s decision to deny Gooch’s motion to suppress was
not in error and we therefore affirm.
III.
[4] Gooch’s remaining arguments related to claimed errors
at trial are without merit and are easily resolved. Gooch complains
that he was entitled to a “mere presence” jury instruction.
No “mere presence” instruction was necessary here. The
jury was properly instructed on all of the elements of the
charged offense, and the government’s case for possession
rested on more than Gooch’s presence in the room with the
firearms. United States v. Negrete-Gonzales, 966 F.2d 1277,
1282 (9th Cir. 1992). Similarly, Gooch’s argument that the
court improperly responded to a question from the jury seeking
clarification of the definition of the term “possession” in
the jury instructions is also baseless. The district court issued
a carefully limited clarification of the instruction that provided
the jury with lay terms synonymous with the words in
the existing instruction. This clarifying response to the jury’s
question “neither directed the verdict, constituted judicial
fact-finding, nor exceeded the scope of the question in a prejudicial
way.” United States v. Verduzco, 373 F.3d 1022, 1032
(9th Cir. 2004). The district court’s response to the jury’s
question was not an abuse of discretion. Id. at 1030 n.3.
[5] Gooch also complains of prosecutorial misconduct in
the form of “vouching” for government witnesses and other
improper statements during closing. The government suggested
in closing that certain government witnesses testified
consistently with other government witnesses. These statements,
which referred only to evidence in the record that
UNITED STATES v. GOOCH 14471
allowed the jury to independently assess the witnesses’ credibility,
did not constitute vouching. United States v. Necoechea,
986 F.2d 1273, 1279-80 (9th Cir. 1993). Likewise, the
prosecution’s statement in closing that the jury could consider,
“[Gooch’s] conduct, his demeanor on the stand, his
believability on the stand, and the weight of the evidence
brought by the witnesses that have been called,” falls well
short of prosecutorial misconduct. Gooch took the stand and
testified on his own behalf; the prosecution’s fairly innocuous
statement regarding his demeanor was not improper. United
States v. Schuler, 813 F.2d 978, 981 n.3 (9th Cir. 1987)
(“When a defendant chooses to testify, a jury must necessarily
consider the credibility of the defendant. In this circumstance,
courtroom demeanor has been allowed as one factor to be
taken into consideration.”).
[6] Finally, the district court did not err in imposing
Gooch’s sentence. Gooch’s two prior state court convictions
(for second degree burglary and third degree assault) were
correctly assessed for purposes of determining the severity of
Gooch’s sentence pursuant to the Armed Career Criminals
Act, 18 U.S.C. § 924(e) (2006). The district court properly
relied on the “modified categorical” approach to determine
the effect of those convictions on Gooch’s sentence. United
States v. Piccolo, 441 F.3d 1084, 1088 n.7 (9th Cir. 2006).
Finally, Gooch was not entitled to a separate jury trial to
determine the applicability of his prior convictions to his sentence
in this case. United States v. Smith, 390 F.3d 661, 666
(9th Cir. 2004).
CONCLUSION
The district court properly denied Gooch’s motion to suppress.
The misdemeanor bench warrant for Conn’s arrest gave
police the necessary authority to enter the Regal Street residence
and execute that warrant. Gooch’s conviction and sentence
are AFFIRMED.
14472 UNITED STATES v. GOOCH

DUI driver's duty to proceed through green light in California

attorneys drunk driving lawyers DUI California criminal defense news

Filed 10/31/07 P. v. Pickens CA5

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN MCGARY PICKENS,

Defendant and Appellant.

F0051708

(Super. Ct. No. MF007563A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Clarence Westra, Jr., Judge.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Apellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Connie Broussard Proctor, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-


Appellant appeals from a final judgment of conviction entered after he pled no contest to charges of violation of Health and Safety Code section 11350, subdivision (a) (possession of a controlled substance) and violation of Vehicle Code section 23152, subdivision (a) (driving under the influence). Appellant’s motion to suppress evidence pursuant to Penal Code section 1538.5 was denied prior to his entry of the no contest plea. Appellant contends his motion to suppress was improperly denied.
FACTS
Deputy Sheriff Richard Garrett was on patrol when he stopped at a red traffic signal in the southbound left turn lane on Sierra Highway at its intersection with Rosamond Boulevard. There was a car stopped at the red light in the right turn lane to his right. He observed a woman on the northeast corner of the intersection clapping and dancing. The woman walked into the intersection in the crosswalk while the crosswalk sign displayed an upraised hand flashing. The southbound traffic light turned green when she was three or four feet inside the intersection; she walked in front of Deputy Garrett’s car and when she was at the passenger side of the vehicle to Deputy Garrett’s right, Deputy Garrett yelled to her to get out of the roadway. The woman told him she was going to get inside, then she got into the car that was stopped to Deputy Garrett’s right. The vehicle to his right remained stopped at the light for approximately 20 to 25 seconds after the light turned green; five seconds after the woman got into the car, it made a right turn onto Rosamond Boulevard.
Deputy Garrett followed the vehicle to stop the driver for a violation of Vehicle Code section 21451, subdivision (a) (requiring a driver to proceed on a green light), and the woman for a violation of Vehicle Code section 21456, subdivision (b) (prohibiting pedestrians from starting to cross a roadway when an upraised hand signal is flashing or steady). Deputy Garrett made a traffic stop of the vehicle and contacted the driver, appellant. When he made contact, Deputy Garrett noticed appellant’s “glossiness colored eyes,” constricted pupils and continuous, jittery movement. He later arrested appellant.
DISCUSSION
In ruling on a motion to suppress, the trial court must (1) find the historical facts, (2) select the rule of law, and (3) apply the law to the facts in order to determine whether the law as applied has been violated. (People v. Ayala (2000) 24 Cal.4th 243, 279.) The appellate court reviews the factual inquiry under the deferential substantial-evidence standard. (Ibid.) The ruling on how the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. (Ibid.) Appellate review “is confined to the correctness or incorrectness of the trial court's ruling, not the reasons for its ruling.” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)
An officer may stop and detain a person if the circumstances known or apparent to the officer “include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C. (1978) 21 Cal.3d 888, 893.) An “officer may, consistent with the Fourth Amendment, briefly detain a vehicle if the objective facts indicate that the vehicle has violated a traffic law.” (People v. White (2001) 93 Cal.App.4th 1022, 1025.) Deputy Garrett stopped appellant’s vehicle in part for a violation of Vehicle Code section 21451.
“A driver facing a circular green signal shall proceed straight through or turn right or left or make a U-turn unless a sign prohibits a U-turn. Any driver, including one turning, shall yield the right-of-way to other traffic and to pedestrians lawfully within the intersection or an adjacent crosswalk.” (Veh. Code § 21451, subd. (a).)
Appellant contends that there was no violation of the statute to justify the deputy’s traffic stop, because appellant had to wait for the pedestrian, who was already in the intersection, to finish crossing the street before he could proceed on the green light.
In People v. Hahn (1950) 98 Cal.App.2d Supp. 841, the court interpreted the predecessor of section 21451, former Vehicle Code section 476. The court observed:
“[T]he requirement of the statute is not that vehicular traffic shall continue to remain motionless until those lawfully in the intersection or an adjacent crosswalk have passed by, but only that it shall yield the right of way to them…. ‘[W]hen a pedestrian crossing a roadway in a crosswalk is so far from the path of an approaching automobile and proceeding in such a manner that no interference between them is reasonably to be expected, the driver of the automobile need not wait for it to develop.’ Applying these words to the possibilities of the question under consideration, we are mindful that not infrequently a pedestrian, lawfully in the crosswalk because he entered it while the signal indicated ‘Go’ [citation], is but a relatively short distance from his point of entrance, and so far distant from the waiting motor vehicle that the latter can proceed to make use of that portion of the highway lying within the crosswalk without interfering with the right of the pedestrian to use it when he reaches it. The duty placed upon the driver is not so expressed that he is required to wait until the crosswalk is clear; his duty is to wait only if necessary to avoid interference with the pedestrian.” (People v. Hahn, supra, 98 Cal.App.2d at p. Supp. 843.)
The evidence indicated the woman stepped off the sidewalk and began to cross the street when the light facing southbound traffic was still red. The southbound light turned green when she was three to four feet inside the intersection. There was one northbound traffic lane; southbound, there was one through lane, a left turn lane, and a right turn lane. Appellant’s vehicle was in the southbound right lane. Thus, the pedestrian had to cross the northbound lane and two southbound lanes before she crossed in front of appellant’s vehicle. Appellant was not required to wait for the pedestrian to finish crossing the street, if he could make his right turn without interfering with her use of the crosswalk.
There were sufficient objective facts indicating appellant’s vehicle had violated a traffic law to justify a stop of appellant’s vehicle. During a detention for a minor traffic violation, “[t]he officer may require the driver to identify himself [and] produce his driver's license and the registration certificate for the vehicle, and he may interrogate with respect to the violation or violations which he has observed.” (People v. Grace (1973) 32 Cal.App.3d 447, 452.) In the course of Deputy Garrett’s inquiries during the detention, he observed appellant’s physical appearance and suspected he was under the influence of a controlled substance, which led to appellant’s arrest.
Additionally, “when there is articulable and reasonable suspicion that a … vehicle or an occupant [of it is] subject to seizure for violation of law, the vehicle may be stopped and the driver detained in order to check his or her driver's license and the vehicle's registration. (People v. Saunders (2006) 38 Cal.4th 1129, 1135.) Deputy Garrett also testified he stopped the vehicle to contact the pedestrian based on a violation of Vehicle Code section 21456. He testified that the pedestrian entered the intersection while facing a flashing upraised hand signal.
“Whenever a pedestrian control signal showing the words ‘WALK’ or ‘WAIT’ or ‘DONT WALK’ or other approved symbol is in place, the signal shall indicate as follows: [¶ ] … [¶ ]
“(b) Flashing or steady ‘DONT WALK’ or ‘WAIT’ or approved ‘Upraised Hand’ symbol. No pedestrian shall start to cross the roadway in the direction of the signal, but any pedestrian who has partially completed crossing shall proceed to a sidewalk or safety zone or otherwise leave the roadway while the ‘WAIT’ or ‘DONT WALK’ or approved ‘Upraised Hand’ symbol is showing.” (Veh. Code § 21456, subd. (b).)
At the hearing, appellant’s counsel conceded that, if the pedestrian entered the crosswalk against the light, she would be in violation of this Vehicle Code section. He argued the pedestrian’s violation was a mere pretext for the stop, because Deputy Garrett could have stopped her before she got into the car, if he had wanted to issue a citation for that violation. The trial court correctly concluded the pedestrian’s violation justified the stop of appellant’s vehicle after the pedestrian entered the vehicle. Pretext does not invalidate a detention; the officer’s subjective motivation in effecting the stop is irrelevant. (Whren v. United States (1996) 517 U.S. 806, 811-816; People v. White (2001) 93 Cal.App.4th 1022, 1025.)
The objective facts known to Deputy Garrett indicated the pedestrian had violated a traffic law. It was not unreasonable for him to wait for her to reach a place of safety before attempting to stop and cite her for the violation. Instead of proceeding to the curb, the pedestrian got in appellant’s car, which then drove on. Deputy Garrett had sufficient justification for stopping the vehicle based on that violation, as well as the green light violation by appellant’s vehicle. The deputy contacted the driver of the vehicle, and observed the physical signs that led him to believe appellant was under the influence of a controlled substance. The trial court properly denied the motion to suppress.
DISPOSITION
The judgment is affirmed.

Felony DUI Plea Bargain that worked in California

DUI lawyers California drunk driving attorneys criminal defense news

Filed 10/31/07 P. v. Quinones CA4/2


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,

v.

MIGUEL ANGEL QUINONES,

Defendant and Appellant.
E042965
(Super.Ct.No. FVI025586)

OPINION


APPEAL from the Superior Court of San Bernardino County. Harold T. Wilson, Jr., Judge. Affirmed.

Neil Auwarter, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

I

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Miguel Angel Quinones was charged by felony complaint with first degree burglary under Penal Code section 459 (count 1), driving under the influence of alcohol or drugs under Vehicle Code section 23152, subdivision (a) (count 2), driving with greater than 0.08 percent blood alcohol under Vehicle Code section 23152, subdivision (b) (count 3), misdemeanor hit and run under Vehicle Code section 20002, subdivision (a) (count 4), forgery of a vehicle registration under Vehicle Code section 4463, subdivision (a) (count 5), being a felon in possession of ammunition under Penal Code section 12316, subdivision (b)(1) (count 6), receiving stolen property under Penal Code section 496, subdivision (a) (count 7), misdemeanor possession of burglar’s tools under Penal Code section 466 (count 8), resisting an executive officer under Penal Code section 69 (count 9), and making criminal threats under Penal Code section 422 (count 10). The complaint also alleged a prior felony strike under Penal Code section 667, subdivisions (b) through (i), and a prior prison term under section 667.5, subdivision (b).

Pursuant to a written plea agreement, defendant pleaded guilty to counts 2 and 9, and to second degree burglary, a lesser included offense to count 1. Defendant also admitted the prior felony strike allegation. The plea agreement provided a stipulated sentence of four years. Defendant agreed to immediate sentencing. The court imposed the agreed term of four years, comprised of 32 months for count 1 (the low term, doubled), plus 16 months for count 9 (one-third the middle term, doubled). Presentence custody credits totaling 186 days were granted. On the misdemeanor count 2, the court imposed jail custody equal to time served. The remaining counts of the complaint were dismissed on the motion of the prosecution.

Defendant filed a timely notice of appeal challenging the sentence or other matters occurring after the plea.

II

ANALYSIS

After defendant appealed, and upon his request, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 setting forth a statement of the case, a summary of the facts, and potential arguable issues and requesting this court to undertake a review of the entire record.

We offered defendant an opportunity to file a personal supplemental brief; he has not done so.

We have now concluded our independent review of the record and find no arguable issues.




III

DISPOSITION

The judgment is affirmed.

Felony DUI Plea Bargain that worked in California

DUI lawyers California drunk driving criminal defense attorneys