Monday, March 31, 2008

California DUI attorney case law update - Generic DUI and Per Se DUI

California DUI attorney case law update

California DUI and .08% BAC

A driver is acquitted of "per se DUI" -- the offense of driving with a blood-alcohol level greater than .08, brought under Veh. Code § 23152, subd. (b) -- but the jury hangs on the "generic DUI" count of driving under the influence of alcohol, brought under Veh. Code § 23152, subd. (a). He is then retried on the generic DUI charge, and the jury is instructed than having a BAC higher than .08 creates a "presumption" that an individual is DUI.

That, said the California Fourth District Court of Appeal Friday in People v. Smith, D049993, was error, because the prosecution should have been collaterally estopped on this point. The court includes a helpful discussion of the relationship between generic and per se DUI:

The Legislature has created two offenses to punish unsafe driving resulting from a driver's alcohol consumption: (1) driving while under the influence of alcohol (§ 23152, subd. (a) (generic DUI)), and (2) driving with a blood alcohol level of .08 or more (§ 23152, subd. (b) (per se DUI)). (See People v. Bransford (1994) 8 Cal.4th 885, 888.) The two offenses are related because they pertain to the same criminal event, but are distinct because they have different elements of proof—i.e., the generic DUI offense requires a showing of driving impairment but does not require a showing of any particular blood alcohol level, and the per se DUI offense requires a showing of a .08 or more alcohol level but does not require a showing of driving impairment. Although both punish the same act—unsafe driving caused by alcohol consumption—that act can be established by proving either impairment or a blood alcohol level of .08 or higher. The creation of an offense based on a .08 or greater blood alcohol level (without requiring proof of actual driving impairment) passes constitutional muster because scientific evidence shows driving impairment at this level of alcohol. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 267-268.) Concomitantly, because scientific evidence shows impairment at the .08 level, when a defendant is charged with generic DUI the Legislature has authorized a jury instruction setting forth a permissive presumption allowing the jury to infer the ultimate fact of driving under the influence from the basic fact of a .08 or more blood alcohol level.

The court notes:

Because collateral estoppel principles were not applied, instead of advising the jury of the limitation arising from the first jury's verdict, the second jury was told it could render a guilty verdict premised on the very finding rejected by the first jury: i.e., that Smith drove with a blood alcohol level of .08 or more. Indeed, to the extent the second jury based its verdict on a finding that the defendant drove with a .08 or more blood alcohol level, the first jury's acquittal was effectively negated. Given that per se and generic DUI concern the same criminal event, and that a finding establishing per se DUI supports an inference that can establish generic DUI, this case strongly implicates the core collateral estoppel concern of "protect[ing] a man who has been acquitted from having to 'run the gantlet' a second time." (Ashe, supra, 397 U.S. at p. 446.)

California DUI lawyers carefully read these California DUI cases.

Limited Miranda rights in California DUI case

San Diego DUI criminal defense attorney www.SanDiegoDrunkDrivingAttorney.net

California DUI lawyer info:

The admonition is usually voluntary in California DUI cases and not usually given, for the following reasons:

During the California drunk driving investigative stage, the California DUI officer has no obligation to advise one of the person of Miranda rights (to an attorney, to remain silent).

In California DUI cases, the California drunk driving officer asks all the questions before arresting (handcuffing), thereby avoiding the issue of having to advise. The person does not have to answer any questions but the person usually does.

Not until handcuffed is the need for the California Miranda Admonition triggered.

And by that time, the California DUI officer normally has all the answers to all the questions needed to arrest for California DUI - Driving under the influence of alcohol.

After that, the California DUI officer abstains from questioning during California DUI custody.

It is not like the California DUI officer takes the person downtown and puts them under a hot light: Did you commit a California DUI?

And in California DUI cases, the person has no right to speak to an attorney before deciding whether to take the required California DUI breath or blood test (it's called the "implied consent" law when one signs up for one's California license).

In sum, the California right to remain silent and the right to a California DUI attorney are substantially different in a California DUI case.

California DUI Attorney Caveat: Nonetheless, any interrogating statements made after taken into California DUI custody (e.g. in the police car: Were you drunk? Yes I was very drunk) may not be used against the person at a California DUI trial and are subject to suppression by a California DUI lawyer for failure to admonish.

New California DUI defense sheriff in town

San Diego California DUI / Drunk Driving / DWI criminal charges have always been on the rise.

It has been widely reported there has been aggressive California DMV & DUI criminal defense in San Diego, California.

Thanks to a famed and dedicated California DUI Drunk Driving Attorney Specialist, San Diego California DUI cases have been taken to task.

www.SanDiegoDrunkDrivingAttorney.net is the front runner in helping those accused of a San Diego California DUI and needing San Diego DMV assistance.

Sunday, March 30, 2008

Accident and DUI - www.sandiegodrunkdrivingattorney.net ?

Can you imagine being arrested of a San Diego DUI in California?

It is scary to think about it but a San Diego California DUI could happen to anyone if not being careful driving. But if the circumstances just happen just in a blink of an eye, and not only one's fault? That is the time one must wonder what will happen next.

What’s the next thing? Realize there are lots of people investigating the San Diego California DUI.

The San Diego California DUI police officers write the reports about the crime then pass the report onto investigating prosecutors and DMV, then the San Diego California DUI attorneys get retained to protect their www.sandiegodrunkdrivingattorney.net clients.

The San Diego California DUI prosecutor will decide to determine wether the criminal charges are a misdemeanor or felony. This kind of San Diego California DUI case will just easy to solve you can be wrong since the San Diego California DUI cops have to investigate it.

Get the help of San Diego California DUI Lawyer Rick Mueller at www.sandiegodrunkdrivingattorney.net so things will be resolved smoothly and win the San Diego California DUI case against you.

If you want to know more about San Diego California DUI Criminal Defense Rick Mueller, check this www.sandiegodrunkdrivingattorney.net website at www.sandiegodrunkdrivingattorney.net - a very informative www.sandiegodrunkdrivingattorney.net ebsite to learn from.

California DUI checkpoint & pedestrian safety news

California DUI attorney news

CHP targets California DUI - drunk driving, jaywalking, speeding from Tahoe City to Kings Beach, California DUI Law enforcement officers are cracking down on speeding and pedestrian violations in North Tahoe, California DUI attorneys recently learned.

A stretch of North Tahoe road that has seen several deadly collisions between pedestrians and vehicles will be the target of a year-long California DUI crackdown by local law enforcement, California DUI lawyers hear.

Drivers, bicyclists and pedestrians alike can expect additional California DUI enforcement along the Highway 28 stretch from Tahoe City through Kings Beach over the next year, especially when it comes to violations that tend to cause vehicle-to-pedestrian accidents, according to California DUI attorney sources.

The California Highway Patrol department in Truckee received the Pedestrian Corridor Safety Grant, funded by California's Office of Traffic Safety, to kick off an aggressive California DUI enforcement campaign along a 9-mile segment of Highway 28 from the Tahoe City wye to the Nevada state line.

Placer County deputies also received a separate portion of the California DUI grant and will be assisting CHP officers.

The California DUI grant program, which will reimburse the law enforcement agencies for hundreds of overtime hours spent enforcing pedestrian safety, begins next week on Tuesday, April 1 and will continue through September of 2009.

Speeding and California DUI drunk driving will be among the violations officers will be looking for.

California DUI Grant money will be used for numerous DUI checkpoints and pedestrian safety checkpoints throughout the year.

Neither a DUI checkpoint or pedestrian checkpoint is specifically planned for Incline, there will be extra patrols on Highway 28, looking for traffic violations.

Kings Beach alone has seen four serious accidents involving pedestrians and cars since 2004, with 2006 being an especially notable year, according to California DUI attorneys.

Meanwhile, a Friday night California DUI checkpoint by the Santa Clarita Valley Sheriff's Station led to arrests for three drivers allegedly driving under the influence and one arrest for a narcotics possession, according to California DUI lawyers.

The California DUI checkpoint was stationed eastbound on Valencia Boulevard, east of Creekside Road from 7 p.m. to 3 a.m.

According to the California DUI report, a total of 1,014 vehicles passed through the California DUI checkpoint. From that number, 916 vehicles were screened.

Eight vehicles were pulled off the line so that the drivers could receive further California DUI testing.

As a result, three drivers were arrested for reportedly California DUI - driving under the influence, California DUI lawyers understand.

Saturday, March 29, 2008

Gold Medal Winter in '68 Olympics pleads to California DUI

California DUI attorney news

San Luis Obispo, California. Bill Toomey, 69, competed in the 1968 Summer Olympics in Mexico City and won gold in the decathlon. Toomey entered the spotlight the past week by entering a plea of no contest to California DUI - Driving Under the Influence.

The California DUI court will sentence Toomey on April 22, but he is expected to receive the following California DUI punishment:

2 days of California DUI jail
3 years California DUI probation
$1,726.00 of California DUI fines
attend California DUI alcohol class
pay California DUI restitution

Toomey crashed his Mercedes into parked cars on May 24, 2007. His blood alcohol level was 0.04 which is under California’s DUI legal limit of 0.08. However, Toomey’s California DUI blood results also yielded evidence of pain killers and a sleeping aide. Alcohol, sleep medication and pain killers do not mix well, and can impair your ability to drive, California DUI lawyers warn.

Who will be one of Sambora's California DUI Attorneys?

California DUI lawyers are wondering about rock n roll this weekend.

Earlier in the week, Richie Sambora was pulled over for driving erratically and suspicion of DUI. But was he actually over the legal limit? That question is under dispute now.

After being arrested in Laguna Beach, California, he volunteerly submitted to having a blood alcohol test. The results from this should be known in about a week from now. It is now coming out that several witnesses are stating that he really didn’t drink very much, and it is unlikely that his blood alcohol content will register above the legal limit in California, which is .08.

As this is certainly good news for Sambora, there is plenty of bad news on the way. It is being reported that his ex-wife Heather Locklear is going to try and gain more child custody of Ava as a result of this situation.

As to Richie’s DUI defense, he must find a top California DUI attorney asap.

In the last five years, Irvine California DUI Attorney Vincent Tucci has personally tried over 85 DUI jury trials with 60 of those jury trials having a successful outcome for the client in all Southern California courts with an emphasis in Los Angeles County and Orange County. California DUI Attorney Vincent Tucci has represented citizens against the DMV in excess of 1000 times.

California DUI Attorney Vincent Tucci is student certified in Standardized Field Sobriety Tests in accordance with the standards of the National Highway Traffic Safety Administration. California DUI Attorney Vincent Tucci has also been certified in the administration, calibration & maintenance of the Intoximeter Alco-Sensor IV Preliminary Alcohol Screening Device - the breath test device you may or may not have taken at the scene of your arrest. Currently, California DUI Attorney Vincent Tucci is the President of the California DUI Lawyers Association - a statewide organization of attorneys representing individuals accused of DUI. California DUI Attorney Vincent Tucci is the co-chair of the DUI Committee for the California Attorneys for Criminal Justice and sits as a Board of Governor member.

Sara's Law would deport illegal immigrants who are convicted of California DUI

California DUI attorney news.


According to California DUI attorneys, Sara Cole, the Los Gatos mother who was seriously injured in September by a California DUI drunk driver, told a California DUI Superior Court judge Friday she does not think the man who ran her over is an evil man. But, Cole said, "I'm happy he's come to justice."

Lucio Rodriguez, 27, of San Jose, was sentenced to five years in state prison for a California DUI, with credit for days already served, according to California DUI attorneys.

Earlier this year Rodriguez pleaded guilty to felony California DUI drunken driving, causing great bodily injury, felony hit and run and driving with a suspended license, according to California DUI attorneys. Rodriguez had a blood alcohol level of .16, twice the legal limit, when he slammed into Cole, crushing her legs as she was standing near the back of her sport-utility vehicle, according to California DUI attorneys.

The California DUI accident happened at Baggerly Field off of Blossom Hill Road in Los Gatos, according to California DUI attorneys.

Cole, who uses a wheelchair, continues to undergo physical therapy three times a week, California DUI lawyers report.

Cole acknowledged that the accident has changed Rodriguez's family, too. He is married and has a young son, California DUI lawyers report.

Rodriguez is an illegal immigrant who was convicted of a misdemeanor DUI in March 2007, California DUI lawyers report.

"I think the U.S. is a great country," Cole said. "But I think Mr. Rodriguez abused his place in it. He abused that privilege."

Cole's ex-husband, Bill Cole, is lining up support for California DUI AB 1882, known as "Sara's Law," that would deport illegal immigrants who are convicted of California DUI - driving under the influence. The state Assembly Public Safety Committee will hold a hearing on the California DUI bill Tuesday, California DUI lawyers report.

Friday, March 28, 2008

California DUI case - San diego dui appeal

California DUI attorney news


Filed 3/5/08; pub. order 3/28/08 (see end of opn.)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

CRAIG SMITH,

Defendant and Appellant.
D049993
(Super. Ct. No. SCD195342)


APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Reversed.

This appeal concerns two trials arising from Craig Smith's conduct of driving with alcohol in his system. Smith was arrested shortly after his vehicle was rear-ended by another vehicle. Approximately one hour after the accident, Smith's blood alcohol level was .17. Smith claimed this elevated level was the result of his drinking alcohol immediately after the accident. In the first trial, the jury acquitted Smith of driving with a blood alcohol level of .08 or more (Veh. Code,1 § 23152, subd. (b), hereafter sometimes referred to as "per se DUI"), but could not reach a verdict as to whether he drove under the influence of alcohol (§ 23152, subd. (a), hereafter sometimes referred to as "generic DUI"). At the second trial, the jury convicted Smith of driving under the influence of alcohol.

Challenging this conviction on appeal, Smith argues that at the second trial the court violated collateral estoppel principles by: (1) admitting the evidence that he had a postaccident .17 blood alcohol level; (2) instructing the jury that a .08 or more blood alcohol level creates a permissive presumption of driving under the influence; and (3) failing to instruct the jury that it should presume he did not drive with a blood alcohol level of .08 or more. We reject Smith's argument that the .17 blood alcohol evidence was inadmissible. However, we conclude that based on the interrelationship between the generic and per se DUI offenses, collateral estoppel principles were violated when the second jury was permitted to consider the issue of whether Smith drove with a .08 or more blood alcohol level. Moreover, we agree with Smith that the jury should not have been instructed regarding the permissive presumption arising from a .08 or more alcohol level and should have been instructed to presume his blood alcohol level was less than .08 while driving. We conclude the error requires reversal.

FACTUAL AND PROCEDURAL BACKGROUND

On December 1, 2005, Smith's vehicle was rear-ended by another vehicle. Smith smelled of alcohol, had bloodshot, watery eyes, and performed poorly on field sobriety tests. He was arrested and taken to the police station, where a test performed approximately one hour after the accident showed a blood alcohol level of .17.

Smith was charged with violating sections 23152, subdivision (a) (driving while under the influence of alcohol) and 23152, subdivision (b) (driving with a blood alcohol level of .08 or greater). At trial, Smith called witnesses who testified that he had about two or three drinks at a bar; he was involved in an altercation with bar patron Alephonsion Deng; Deng followed Smith after Smith drove away from the bar; and shortly thereafter Deng rear-ended Smith's vehicle. Smith did not dispute that he had a .17 blood alcohol level some time after the accident, but explained this elevated level by testifying that after the accident he was distressed and in response he drank brandy that he had in his vehicle. On cross-examination, the prosecution's expert acknowledged that a person's blood alcohol level could rise to .17 one hour after rapidly consuming 12 ounces of brandy. A coffee cup containing alcohol was found in Smith's vehicle, and a liquid that appeared to be alcohol was spilled on the front passenger seat.

In February 2006, a jury found Smith not guilty of the section 23152, subdivision (b) (per se DUI) offense, but could not reach a verdict on the section 23152, subdivision (a) (generic DUI) offense. The court declared a mistrial on the generic DUI count.

In April 2006, retrial commenced on the generic DUI offense. Smith moved to limit the issues presented to the second jury. Based on the first jury's verdict acquitting him of driving with a blood alcohol level of .08 or more, he argued that under collateral estoppel principles the second jury should not be allowed to consider whether he was driving with a blood alcohol level of .08 or more. He requested that the court exclude evidence related to the .08 issue, including the evidence that his blood alcohol level was .17 after the accident. Alternatively, he requested that the court (1) give the second jury a limiting instruction based on the first jury's acquittal, and (2) refrain from instructing the second jury regarding the permissive presumption of driving impairment arising from a blood alcohol level of .08 or more.

The trial court denied Smith's motions, ruling that the .08 issue could be considered by the second jury; the second jury should not be told about the first jury's acquittal on the .08 count; the .17 blood alcohol test results were admissible; and the second jury would be instructed regarding the permissive presumption arising from a .08 or more blood alcohol level. Accordingly, at the second trial the prosecution presented its case with no restrictions arising from the first jury's acquittal, and the jury was instructed that it could infer that Smith drove under the influence of alcohol if it found the prosecution proved he had a blood alcohol level of .08 or greater. (See § 23610; Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 2110.) The second jury convicted Smith of generic DUI under section 23152, subdivision (a).

Smith appeals from this conviction, essentially reiterating the assertions he made at trial. He contends that based on collateral estoppel principles the .17 blood alcohol evidence should not have been admitted at the second trial. Alternatively, he contends the second jury should not have been instructed regarding the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level, and the second jury should have been instructed to presume he did not drive with a .08 or more blood alcohol level.

To evaluate his contentions, we first summarize general collateral estoppel principles, and then apply these principles to the particular circumstances of this case.

DISCUSSION

I. Collateral Estoppel Principles

The double jeopardy clause of the Fifth Amendment of the United States Constitution prohibits trying a defendant more than once for the same offense. (People v. Santamaria (1994) 8 Cal.4th 903, 910 (Santamaria).) Collateral estoppel is a component of the double jeopardy protection, prohibiting relitigation of factual issues when certain requirements are met. (Id. at p. 912, fn. 3; Ashe v. Swenson (1970) 397 U.S. 436, 445 (Ashe).) The doctrine provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Ashe, supra, at p. 443.) When applying the principle in criminal cases, the United States and California Supreme Courts have emphasized that "collateral estoppel . . . is not to be applied with [a] hypertechnical and archaic approach . . . but with realism and rationality. . . . The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' " (Id. at p. 444; accord Santamaria, supra, 8 Cal.4th at pp. 920, 926.)

Generally, collateral estoppel applies " 'if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.' " (Santamaria, supra, 8 Cal.4th at p. 916.) Additionally, "the issue to be precluded must be 'an issue of ultimate fact . . . .' " (Ibid.) To satisfy the "ultimate fact" requirement, the issue must pertain to a fact that the prosecution must prove beyond a reasonable doubt in the second trial. (Dowling v. United States (1990) 493 U.S. 342, 348-349 (Dowling); Santamaria, supra, 8 Cal.4th at p. 922; People v. Catlin (2001) 26 Cal.4th 81, 124 (Catlin); see United States v. Wells (8th Cir. 2004) 347 F.3d 280, 285 ["A fact previously determined in a criminal case is not an 'ultimate fact' unless it was necessarily determined by the jury against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict"].)

A review of several United States and California Supreme Court decisions reveals that application of the collateral estoppel rule is heavily dependent on the factual and legal context of the particular case. In Ashe, supra, 397 U.S. 436, the defendant was charged with a robbery involving a group of people playing poker. The defendant was tried for the robbery of one of the victims, and found not guilty. (Id. at pp. 438-439.) Thereafter, the defendant was tried for the robbery of another of the poker players, and found guilty. (Id. at pp. 439-440.) The Ashe court concluded the second prosecution violated collateral estoppel. The court reasoned the only issue in dispute at the first trial was whether the defendant had been one of the robbers; the first jury had determined he was not one of the robbers; and accordingly under the principle of collateral estoppel the state could not "constitutionally hale him before a new jury to litigate that issue again." (Id. at p. 446.)

In Dowling, supra, 493 U.S. 342, the defendant was charged with robbery, and the prosecution sought to introduce evidence of an uncharged attempted robbery offense of which the defendant had been acquitted. The uncharged offense evidence was offered to prove identity based on the testimony of the uncharged offense victim identifying the defendant as the man who entered her house and revealing common features with the charged offense. (Id. at pp. 345-346.) The trial court admitted the uncharged offense evidence, instructing the jury that the defendant had been acquitted of the uncharged crime and emphasizing the limited purpose for the admission of the uncharged crime evidence. (Ibid.) On review, the United States Supreme Court found no collateral estoppel bar to the admission of the uncharged crimes evidence. The court reasoned that, unlike the situation in Ashe, the defendant's "prior acquittal did not determine an ultimate issue in the present case." (Id. at p. 348.) The Dowling court observed that in Ashe, the "acquittal in the first trial foreclosed the second trial because, in the circumstances of that case, the acquittal verdict could only have meant that the jury was unable to conclude beyond a reasonable doubt that the defendant was one of the bandits. A second prosecution was impermissible because, to have convicted the defendant in the second trial, the second jury had to have reached a directly contrary conclusion." (Id. at pp. 347-348.) In contrast, in Dowling, the prosecution in the current robbery case did not need to prove the defendant's commission of the uncharged crime beyond a reasonable doubt but only needed to present sufficient evidence from which a jury could reasonably find the defendant committed the uncharged offense. (Id. at pp. 348-349.) Alternatively, the Dowling court found the defendant had not shown that the jury at the uncharged offense trial necessarily decided he was not the man who entered the victim's home, because the record suggested that he had conceded his presence at her home but claimed it was not for purposes of robbery. (Id. at pp. 350-352.)

Following Dowling, the California Supreme Court rendered two decisions that included the concept that an issue did not pertain to an "ultimate fact" barred by collateral estoppel unless it needed to be proven by the prosecution at the second trial to establish the charged offense. (Santamaria, supra, 8 Cal.4th 903; Catlin, supra, 26 Cal.4th 81.) In Santamaria, the first jury convicted the defendant of murder and robbery, but found not true a personal knife use enhancement. (Santamaria, supra, 8 Cal.4th at p. 909.) The principal witness against the defendant was a man who was with the defendant at the time of the murder and who pleaded guilty to being an accessory to the murder; this witness testified that he saw the defendant stab the victim. (Id. at pp. 908-909.) After the judgment was reversed on appeal for trial error, the defendant was again charged with the same offenses, but without the weapon enhancement allegation. (Ibid.) At the second trial, the trial court ruled that the defendant could not be retried on the theory that he personally used the knife during the killing. (Ibid.) Because the evidence showed the cause of death was the knife wound, the prosecution stated it could not proceed with the case in light of the court's ruling; accordingly, the trial court dismissed the case. (Id. at pp. 909-910.)

On review, the California Supreme Court considered whether collateral estoppel should be applied to "mandate that after a judgment is reversed on appeal, the original jury's finding on a sentencing enhancing allegation affects retrial of a murder charge, even though the same jury convicted defendant of that murder. . . ." (Santamaria, supra, 8 Cal.4th at p. 908.) Noting that collateral estoppel should be applied in a practical, realistic fashion, the Santamaria court found collateral estoppel did not bar the knife use theory from the second trial because (1) the defendant could have been culpable for murder either as a direct perpetrator or an aider and abettor, and the first jury may have rendered the not true finding on the weapon enhancement merely because it was not certain whether the defendant or the admitted accessory had used the knife, and (2) the defendant's personal knife use was not an ultimate issue that had to be proven beyond a reasonable doubt in the second prosecution for murder. (Id. at pp. 918-922, 926.)

In Catlin, the defendant was charged with two murders, and evidence of a third uncharged murder was admitted to show identity and common plan based on the common features shared in all three murders. (Catlin, supra, 26 Cal.4th at pp. 98, 103-104, 120-121.) At the trial for the two charged murders, the defendant asserted that collateral estoppel required exclusion of evidence that he had received life insurance proceeds after the death of the uncharged murder victim, because at the trial on the uncharged murder the court had found not true the special circumstance allegation that he committed the murder for financial gain. (Id. at p. 123.)

On review, the California Supreme Court found that the trial court properly denied the defendant's motion to exclude the financial gain evidence associated with the uncharged offense. The Catlin court reasoned that the issue of whether the defendant murdered the uncharged murder victim for financial gain "was not an issue of ultimate fact to be determined in the present proceeding" because the defendant was not currently on trial for the murder of the uncharged murder victim, and "the prosecution was not required to establish [the financial gain circumstance alleged in the uncharged offense] beyond a reasonable doubt or, indeed, to prove it at all." (Catlin, supra, 26 Cal.4th at pp. 124-125.) The court in Catlin also rejected the defendant's argument that it was inherently unfair to admit the financial gain evidence associated with the uncharged offense because he was in effect being retried on this issue. (Id. at p. 126.) The court stated the financial gain evidence was being admitted to establish facts regarding the currently charged murders, not to relitigate the defendant's responsibility for the uncharged murder for financial gain. (Id. at p. 127.)

II. Application of Collateral Estoppel in the Context of Per Se and Generic DUI Offenses

A.

Our task is to determine whether the collateral estoppel rule should be applied in a particular case with " 'with an eye to all the circumstances of the proceedings,' " and with realism, rationality, and practicality. (Ashe, supra, 397 U.S. at p. 444; Santamaria, supra, 8 Cal.4th at pp. 920, 926.) A practical application of collateral estoppel in the context of this case necessarily requires a consideration of the manner in which the Legislature has defined offenses involving persons who drive with alcohol in their system.

The Legislature has created two offenses to punish unsafe driving resulting from a driver's alcohol consumption: (1) driving while under the influence of alcohol (§ 23152, subd. (a) (generic DUI)), and (2) driving with a blood alcohol level of .08 or more (§ 23152, subd. (b) (per se DUI)). (See People v. Bransford (1994) 8 Cal.4th 885, 888.) The two offenses are related because they pertain to the same criminal event, but are distinct because they have different elements of proof—i.e., the generic DUI offense requires a showing of driving impairment but does not require a showing of any particular blood alcohol level, and the per se DUI offense requires a showing of a .08 or more alcohol level but does not require a showing of driving impairment. Although both punish the same act—unsafe driving caused by alcohol consumption—that act can be established by proving either impairment or a blood alcohol level of .08 or higher. The creation of an offense based on a .08 or greater blood alcohol level (without requiring proof of actual driving impairment) passes constitutional muster because scientific evidence shows driving impairment at this level of alcohol. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 267-268.) Concomitantly, because scientific evidence shows impairment at the .08 level, when a defendant is charged with generic DUI the Legislature has authorized a jury instruction setting forth a permissive presumption allowing the jury to infer the ultimate fact of driving under the influence from the basic




fact of a .08 or more blood alcohol level. (§ 23610; People v. Milham (1984) 159 Cal.App.3d 487, 503-505; see CALCRIM 2110.)2

Thus, although the generic and per se DUI offenses are distinct, they are interrelated, and it is in this context that we must consider whether collateral estoppel principles apply.

In the first trial the jury found the prosecution could not prove beyond a reasonable doubt that Smith had a blood alcohol level of .08 or more while driving, but could not agree whether he was under the influence of alcohol while driving. Double jeopardy principles did not bar retrial on the generic DUI count because its elements are distinct from per se DUI. However, collateral estoppel principles could apply to bar issues (1) that were necessarily decided by the first jury, and (2) that are issues of

ultimate fact in the second trial. (Santamaria, supra, 8 Cal.4th at pp. 916, 922.)3

Here, the first collateral estoppel component is clearly met. The jury in the first trial necessarily decided that the prosecution could not prove beyond a reasonable doubt that Smith drove with a blood alcohol level of .08 or more. Unlike the situation in Santamaria, where the jury could have rejected the knife use finding based on a doubt whether the defendant committed the murder by personally using the knife or as an aider and abettor, here the sole reason the jury could have rejected a guilty verdict on the per se DUI count was that it found that the prosecution had not proven Smith's blood alcohol level was at least .08 while driving.

As to the "ultimate fact" component, it would appear, at first blush, that the jury's rejection of the per se DUI count does not implicate collateral estoppel principles. At the second trial the prosecution had to prove impairment as a result of alcohol consumption; it did not need to prove that Smith had a blood alcohol level of .08 or more while driving.

Thus, the fact determined at the first trial (rejection of the .08 finding) was, at least facially, not an issue of ultimate fact in the second trial. But such a strict construction of the ultimate fact requirement would fail to consider the interrelated nature of the two offenses—i.e., (1) they involve the precise same criminal event, and (2) by virtue of the section 23610 presumption, a violation of per se DUI (.08 or more blood alcohol level) supports an inference of impairment establishing a violation of generic DUI.

Additionally, such a strict construction ignores the evidentiary impact of the section 23610 presumption in a generic DUI trial where, as here, the only disputed issue is impairment. Although a jury deciding whether a defendant is guilty of driving while impaired is not required to rely on a .08 finding, that finding, coupled with the presumption instruction, plays a pivotal—if not decisive—role in the jury's determination of the charge. For all practical purposes, permitting the second jury to consider whether the defendant had a .08 or more blood alcohol level while driving allowed the second jury to decide an issue that was virtually dispositive of the ultimate fact, even though that predicate fact was necessarily adjudicated and rejected in the first trial. When considered in this context, collateral estoppel is clearly implicated.

At the first trial, the prosecution proffered two different crimes in an effort to punish the defendant for his alleged unsafe driving arising from the consumption of alcohol. The first jury rejected the crime premised on the .08 or higher blood alcohol level allegation (§ 23152, subd. (b)), but could not reach a conclusion regarding the crime premised on an impairment allegation (§ 23152, subd. (a)). Thus, the whole purpose of the second trial was to determine whether the prosecution could prove "drunk driving" under the impairment theory, and to do so without relying on the .08 blood alcohol level finding rejected by the first jury and without the benefit of the inference of impairment attendant to such a finding.

Because collateral estoppel principles were not applied, instead of advising the jury of the limitation arising from the first jury's verdict, the second jury was told it could render a guilty verdict premised on the very finding rejected by the first jury: i.e., that Smith drove with a blood alcohol level of .08 or more. Indeed, to the extent the second jury based its verdict on a finding that the defendant drove with a .08 or more blood alcohol level, the first jury's acquittal was effectively negated.

Given that per se and generic DUI concern the same criminal event, and that a finding establishing per se DUI supports an inference that can establish generic DUI, this case strongly implicates the core collateral estoppel concern of "protect[ing] a man who has been acquitted from having to 'run the gantlet' a second time." (Ashe, supra, 397 U.S. at p. 446.) This case is distinctively different from Catlin, where the court found no unfairness in requiring relitigation of an issue resolved in an uncharged offense trial because the defendant was on trial for an entirely distinct criminal event. Here, it was inherently unfair to require Smith to relitigate an issue that a jury resolved in his favor in a trial involving the same criminal event, and which issue (if resolved against him) could have been highly influential or even dispositive on the ultimate issue of fact in the retrial. Further, unlike the situation in Santamaria, Smith was seeking to prevent the prosecution from pursuing a theory that was rejected in the context of an acquittal of the main criminal event, not in the context of a conviction of the main criminal event.

Applying the collateral estoppel protection in a practical, realistic manner, we conclude that the first jury's finding that the prosecution did not prove the defendant drove with a .08 or more blood alcohol level is binding on the prosecution in the second trial and cannot be relitigated.

B.

Having concluded that collateral estoppel applied at the second trial because the first jury necessarily decided the .08 issue and the .08 issue equated with an issue of ultimate fact at the second trial, we now address the three specific contentions of error raised by Smith: (1) the .17 blood alcohol level evidence should have been excluded; (2) the jury should not have been instructed regarding the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level; and (3) the jury should have been instructed to presume Smith's blood alcohol level was less than .08 while driving.

Our holding that collateral estoppel barred relitigation of the issue of whether Smith drove with a .08 or more blood alcohol level does not bar use of the evidence that his blood alcohol level was .17 about one hour after the accident. Based on the expert testimony regarding alcohol absorption and Smith's own testimony that he drank alcohol after the accident, the first jury's finding that the prosecution could not prove Smith had at least a .08 blood alcohol level while driving did not necessarily constitute a finding that he did not have a .17 blood alcohol level about one hour after the accident. Indeed, Smith concedes that he had a .17 blood alcohol level about one hour after the accident and attributes it to his claim that after the accident he consumed alcohol he had in his car.

Further, even though the first jury rejected the .08 finding, the evidence that Smith's blood alcohol level was .17 about one hour after the accident was still relevant to the prosecution's case on the issue of whether he was impaired at the time of driving. The jury's finding that the prosecution could not prove beyond a reasonable doubt that Smith drove with a blood alcohol level of .08 or more does not preclude a finding that Smith drank a substantial amount of alcohol before the accident, even though the prosecution could not show it had reached the .08 level while he was driving. For example, the second jury could find that Smith's postaccident .17 blood alcohol level supported an inference that he drank a substantial amount of alcohol both before and after the accident, and that (when considered with all the evidence) he had enough alcohol in his system while driving to cause impairment even though his blood alcohol level was not shown to have reached .08 while driving.

However, given the collateral estoppel bar operative because of the first jury's acquittal on the per se DUI count, the second jury should not have been instructed regarding the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level. The permissive presumption, which arises "[i]f the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was .08 percent or more" (CALCRIM No. 2110), is premised on a finding directly contrary to the

finding rejected by the first jury.4

Additionally, because the jury was presented with the .17 blood alcohol level evidence, the jury should have been instructed that it must presume Smith's blood alcohol level was not .08 or more at the time he was driving.5 In order to consider the implications of the .17 blood alcohol evidence, the jury necessarily needed to consider what level of blood alcohol can cause impairment. Relevant to this issue, the jurors were aware from expert witness testimony and the prosecutor's argument that the legal blood alcohol limit for driving is below .08, and the jury was instructed on the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level.6 Based on the .17 blood alcohol evidence and their knowledge of the .08

threshold, the jurors could readily draw an inference that Smith had a .08 or greater blood alcohol level while driving, and in turn readily infer that he drove under the influence. A special instruction effectively advising the jury about the first jury's acquittal on the .08 count was necessary to ensure that the second jury did not improperly rest its verdict on a finding that was expressly rejected by the first jury.7

C.

The erroneous failure to preclude the second jury's consideration of the .08 issue was prejudicial under any standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond reasonable doubt standard for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [no reasonable probability of different result standard for state law error].) Because a finding that the defendant drove with a .08 or more blood alcohol level carries such a strong inference of driving impairment and the jury was expressly instructed regarding this inference, there is a reasonable probability that had this theory been foreclosed, the second jury would have reached a different verdict. Although there was sufficient evidence to support a finding that Smith was driving under the influence of alcohol, this is an issue that a jury must resolve without being permitted to rely on a finding that Smith drove with a .08 or more blood alcohol level.8

DISPOSITION

The judgment is reversed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.





Filed 3/28/08

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

CRAIG SMITH,

Defendant and Appellant.
D049993
(Super. Ct. No. SCD195342)

ORDER CERTIFYING OPINION

FOR PUBLICATION


THE COURT:

The opinion filed March 5, 2008, is ordered certified for publication.

The attorneys of record are:

Christopher Blake, under appointment by the Court of Appeal Appellate Defenders Independent Case System for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Gary W. Schons, Assistant Attorneys General, Barry Carlton and Teresa Torreblanca, Deputy Attorneys General for Plaintiff and Respondent.

McCONNELL, P.J.

Copies to: All Parties



1 Subsequent statutory references are to the Vehicle Code unless otherwise specified.



2 Based on section 23610, CALCRIM No. 2110 (which was given to the jury here) defines the permissive presumption as follows: "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense." Although the instruction (as well as section 23610) refers to the .08 or more level at the time of the chemical analysis, the jury must necessarily infer that the defendant's .08 or more level also existed at the time of driving to use the evidence to infer impairment at the time of driving. (See People v. Schrieber (1975) 45 Cal.App.3d 917, 920-922.)



3 The Attorney General argues that application of collateral estoppel is limited to successive prosecutions, and that it does not apply to retrial of a count. In Santamaria, the court questioned whether collateral estoppel applies "to the same proceeding where the government won by securing a conviction of the substantive count" and a retrial is pursued on the substantive count after reversal on appeal for trial error. (Santamaria, supra, 8 Cal.4th at p. 913.) The Santamaria court declined to resolve the issue because it concluded that, in any event, defendant had not shown that the elements of collateral estoppel had been met. (Id. at pp. 915-916, & fn. 5.) Here, unlike the situation in Santamaria, there was no conviction at the first trial, but rather an acquittal. Subsequent to Santamaria, the California Supreme Court recognized that collateral estoppel principles may properly apply on retrial of a count after the jury acquits the defendant of another count. (People v. Barragan (2004) 32 Cal.4th 236, 255, fn. 7; see U.S. v. Bailin (7th Cir. 1992) 977 F.2d 270, 276.) In the context of this case, we find the Attorney General's assertion unavailing.



4 As noted, CALCRIM No. 2110 and section 23610 refer to the .08 or more level at the time of the chemical analysis. (See fn. 2, ante.) However, because the prohibited conduct is driving under the influence, the jury must additionally infer that the .08 or more level existed at the time of driving to use the .08 or more chemical analysis evidence to support the generic DUI charge.



5 We are not persuaded by the Attorney General's argument that Smith forfeited his right to argue on appeal that the jury should have been instructed to presume his blood alcohol level was less than .08 while driving. Although his trial counsel did not formulate language for such a special instruction, his trial counsel requested that the trial court give the jury a limiting instruction based on the acquittal. This was sufficient to preserve the issue.



6 For example, the prosecution's criminalist referred to the .08 level, and noted that the .17 blood alcohol level was "more than twice the legal limit." Likewise, in closing argument the prosecutor noted the .17 level was twice the legal limit, and emphasized that the Legislature "feels so strongly about [.08]" that it created an inference of driving under the influence at this level.



7 Because of the easily-drawn inference of driving impairment arising from a .08 or more blood alcohol level, in the event the prosecution presents the .17 blood alcohol evidence at a retrial the jury should be instructed that Smith's blood alcohol level while driving was below .08 even though it will not be instructed regarding the permissive presumption. Regardless of what information is presented directly to the jury, many jurors will be aware of the .08 threshold (see Burg v. Municipal Court, supra, 35 Cal.3d at p. 272) and they need to be advised that this issue has already been resolved in Smith's favor.



8 In his brief on appeal, Smith also argues that the evidence was insufficient to support the driving under the influence verdict. This argument appears to be in large part premised on his assertion (which we have rejected) that the evidence of his postaccident .17 blood alcohol level was inadmissible. There was sufficient evidence to support the jury's verdict, including Smith's postaccident .17 blood alcohol level and his poor performance on the field sobriety tests.

Smith also challenges his sentence based on the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. Irrelevant, though.

How much fuel is too much? California DUI arrest at gas station

California DUI criminal defense lawyer news

A California DUI motorist who stopped to refuel at a Roseville gas station was arrested Wednesday for California DUI and possibly having consumed too much fuel himself.

The first California DUI clue? California DUI Police say that as the driver left the station at 1261 Pleasant Grove Blvd., he allegedly ran over the foot of an 80-year-old man, causing minor injuries, California DUI attorney sources say.

James Whitney Bibbins III, 20, of Granite Bay was arrested on suspicion of drunken driving and causing injury, California DUI attorneys understand.

The 80-year-old was treated and released at Sutter Roseville Medical Center, California DUI lawyers are told.

Thursday, March 27, 2008

10 year old daughter with Bon Jovi Guitarist during California DUI

California DUI attorney update

California DUI Bon Jovi guitarist Richie Sambora was driving his 10 year old daughter when he was arrested on California DUI / drunk driving charges this week.

Sambora was arrested for California DUI after police pulled over his Hummer after it was allegedly seen weaving along the Pacific Coast Highway. California DUI lawyers are curious to see the specific, articulable basis for the alleged weaving.

The guitarist refused a California DUI sobriety test and was taken to Laguna Beach police station where he was given a California DUI blood alcohol test.

It has now been revealed that the passenger in the vehicle was his and Heather Locklear's 10 year old daughter.

He will face California DUI court on May 7 and will have his California DUI lawyers in line by then.

California DUI attorneys are for a breath test in every car

California DUI attorneys news

California DUI State lawmakers took up a bill today to crack down on first-time California DUI drunk driving offenders -- it would install breathalyzers in their cars.

A recent study says the move would save lives and money, but at least one group opposes it, California DUI attorneys hear.

One long exhale and the car will either start or not. it all depends on how much the driver has had to drink.
"If you are at a non passing level then it locks you out of your vehicle and your not allowed to start it," said Victor Figueroa from DVS Kustoms.
A bill making its way through the state assembly, would dramatically increase the number of people who would be required to have interlock devices in their cars.
"What the legislation is proposing now, is that every person who is convicted of a DUI be required to put on the interlock ignition devise," California DUI lawyers hear.
That means, California DUI first time offenders with a blood alcohol level of point .08 would face the same requirement as repeat California DUI offenders with a blood alcohol level of.20.
On Thursday the American Beverage Institute denounced the proposed legislation. The institute does favor using the device on repeat offenders and those driving with high alcohol levels.
"You wouldn't punish someone driving five miles over the speed limit the same way would someone driving 25 miles over the speed limit and that's what we think this bill does," said Sarah Longwell from the American Beverage Institute.
There are four states that require interlock devices for first time offenders.
In New Mexico, alcohol related fatalities dropped 11 percent in just one year after it adopted the change.
California legislators tried last year to pass a similar California DUI bill also aimed at the first time offender.
"We have the ability to put a police officer in the front seat of every single car in California," said Assemblyman Todd Spitzer (R) Orange on February 14, 2007.
The California Highway Patrol and Mothers Against Drunk Driving are sponsoring this latest effort to expand the use of in California DUI car breathalyzer. California DUI Lawmakers will begin debating the bill in committee next month, California DUI attorneys understand.

San Diego DUI - DMV writ re refusal, prior (Carlton)

California DUI attorneys

Filed 3/27/08 Carlton v. DMV CA4/1

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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

RICHMOND CARLTON,
Plaintiff and Appellant,

v.

STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES,

Defendant and Respondent.
D050893
(Super. Ct. No. GIC876078)


APPEAL from a judgment of the Superior Court of San Diego County, Rafael Arreola, Judge. Affirmed.

Richmond Carlton was stopped for suspected driving under the influence (DUI) and, after allegedly refusing to take a breath, urine or blood test (in violation of Veh. Code, § 23612),1 he was served with a notice that his driving privileges would be suspended pursuant to section 13353, but that he could request an administrative hearing (the per se hearing) before a hearing officer of the Department of Motor Vehicles (DMV) to challenge certain factual issues. Carlton timely requested a per se hearing, and the DMV hearing officer found he had violated section 23612, which subjected Carlton to mandatory suspension of his driving privileges. (§ 13353, subd. (a).) Carlton petitioned for a writ of mandate under Code of Civil Procedure section 1094.5 to challenge that determination, and the trial court denied the petition as to that determination.

However, at the final session of the per se hearing, Carlton also purported to challenge the accuracy of the DMV's record that he had suffered a prior DUI conviction in Florida. Although this issue is not one of the issues statutorily enumerated for evaluation at a per se hearing (see §§ 13557, subd. (b)(1), 13558, subd. (c)(1)), the hearing officer nevertheless found Carlton's DMV driving record correctly reflected the prior Florida conviction was a qualifying offense under section 13353, subdivision (a)(2). Carlton's petition for a writ of mandate in the trial court, filed pursuant to Code of Civil Procedure section 1094.5, also purported to challenge the determination concerning Carlton's Florida conviction. The trial court ordered that the prior conviction issue be remanded to the DMV for further evidentiary proceedings on the Florida conviction.

Carlton appeals the trial court's order, and we affirm both aspects of the trial court's order.

I

FACTUAL AND PROCEDURAL BACKGROUND

A. The Arrest and Blood Draw

Shortly after 2:00 a.m. on June 24, 2006, Officer Newbury saw Carlton's car in the slow lane of southbound I-5. Carlton drifted to the right and drove with his right wheels on the shoulder for several seconds before jerking back to the left. When Newbury saw Carlton again weave onto the shoulder, Newbury activated his emergency lights and pulled Carlton off the freeway before stopping him. When Newbury first spoke to Carlton, he immediately smelled alcohol. Carlton initially denied he had been drinking, but Newbury directed Carlton to get out of the car to conduct field sobriety tests. Carlton smelled of alcohol when he got out of the car, and Newbury noticed slurred speech and red, watery eyes. When Newbury again asked Carlton if he had been drinking, Carlton stated he had consumed two beers. Carlton performed poorly on the field sobriety tests. He also declined to take an initial preliminary alcohol screening breath test. Based on Newbury's observations, he arrested Carlton on suspicion of DUI.

Newbury transported Carlton to the Vista Detention facility, where Newbury explained the implied consent laws, and read verbatim from a form that warned Carlton about the consequences of refusing to take either a breath or a blood test. Carlton was agitated and repeatedly refused to agree to take any chemical test. Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, and Carlton continued to delay the blood draw, stating repeatedly, "I don't want to take this test" and "you can't do this." After the phlebotomist came to draw Carlton's blood and Newbury again warned he would if necessary hold Carlton down to allow the blood draw, Carlton (after a brief discussion with the phlebotomist) held out his arm to allow the blood draw but continued to state, "I'm not giving my consent" and "I don't want to give any blood." The blood draw was completed over Carlton's continued verbal protests. Carlton's blood alcohol level was .15 percent, nearly twice the legal limit.

B. The Proceedings

DMV Proceedings

Newbury served Carlton with a notice that his driving privileges would be suspended pursuant to section 13353 and that he could request a per se hearing to challenge limited factual issues. Carlton requested a per se hearing. At the initial hearing, the DMV hearing officer explained the limited issues presented for resolution, pursuant to section 13558, and admitted a copy of the police report as an exhibit.2 The hearing officer also heard the testimony of Carlton, who denied the accuracy of the police report insofar as it reported that Carlton had refused to take a blood test or that the test was a forced blood test. Because of the discrepancy between Carlton's testimony and the police report, the hearing officer continued the hearing to permit Newbury to appear and testify.

At the continued hearing, Newbury appeared and testified to Carlton's refusals to voluntarily submit to chemical tests.3 After the hearing, the hearing officer found Carlton had refused or failed to complete a drug test, in violation of section 23612 , and therefore Carlton was subject to mandatory suspension of his driving privileges.4 (§ 13353, subd. (a).)

Superior Court Proceedings

Carlton's writ petition under Code of Civil Procedure section 1094.5 asserted the finding of refusal was not supported by the evidence. His writ petition additionally asserted his prior Florida conviction was "inadmissible, as a matter of law" and should have been removed from his driving record.

The trial court, applying its independent judgment, denied the petition insofar as Carlton argued the weight of the evidence did not support the determination that he refused to take a chemical test. However, the court also concluded the DMV could not impose more than the one-year suspension triggered by Carlton's refusal without satisfactory evidence showing his prior conviction in Florida was properly entered into the DMV's records as a prior DUI offense within the meaning of the California statutory scheme. Accordingly, the court ordered the DMV to hold an administrative hearing to determine whether Carlton's prior Florida conviction was appropriately treated as a qualifying prior DUI offense for purposes of section 13353, subdivision (a)(2).

Carlton purports to appeal from both aspects of the order.

II

THE REFUSAL ISSUE

A. Legal Framework

When a driver requests an administrative per se hearing to challenge whether his or her driver's license may be suspended under section 13353 for allegedly refusing to consent to a chemical test, the scope of that hearing is confined to the facts listed in section 13557, subdivision (b)(1). The per se hearing examines only (1) whether the law enforcement officer had reasonable cause to believe the person had been driving a motor vehicle while under the influence; (2) whether the person was placed under arrest; (3) whether the person "refused or failed to complete the chemical test . . . after being requested by a peace officer"; and (4) whether the person had been told his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to and complete the required testing. (Troppman v. Valverde (2007) 40 Cal.4th 1121, 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).)

If the hearing officer makes these findings at the per se hearing, the driver may challenge the adverse determination by petitioning the trial court for a writ of mandamus under Code of Civil Procedure section 1094.5. (Lake v. Reed (1997) 16 Cal.4th 448, 456.) The trial court exercises its independent judgment to decide whether the weight of the evidence supports the administrative decision. (Ibid.)

When the trial court denies the writ, and the driver appeals from that denial, our review is limited to deciding whether the record contains substantial evidence that, if credited, would support the trial court's decision on the issues presented. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) We resolve all factual conflicts, and draw all legitimate inferences, in favor of the trial court's decision, and we may not overturn the factual findings unless the evidence is insufficient as a matter of law to sustain those findings. (Ibid.)

B. Evaluation

At both the per se hearing and in the trial court, the only disputed section 13557, subdivision (b)(1), fact was whether Carlton refused to take a chemical test. The DMV and the trial court were provided with Officer Newbury's sworn report, which described the admonition Newbury gave to Carlton concerning the necessity for agreeing to a chemical test and reported that Carlton answered, "No" when asked whether he would take a blood or breath test. This evidence alone would support the finding of refusal. (Cf. Lake v Reed, supra, 16 Cal.4th at pp. 457-458.) Additionally, the hearing officer (as well as the trial court) was provided the testimony of Officer Newbury. Newbury explained that, after reading verbatim from a form warning Carlton of the consequences of refusal and explaining the consequences of refusal, Carlton remained agitated and repeatedly refused to agree to take any chemical test. Even after Newbury warned Carlton that Newbury would hold him down if necessary, because the blood would be drawn with or without Carlton's permission, Carlton delayed by stating repeatedly, "I don't want to take this test" and "you can't do this."

The evidence also supports the conclusion that it was only after the phlebotomist came to draw Carlton's blood, and Newbury warned he would if necessary hold Carlton down to allow the blood draw, that Carlton held out his arm to allow the blood draw, although he continued to state, "I'm not giving my consent" and "I don't want to give any blood." A driver who verbally refuses to take the test, even though he or she does not physically resist the actual blood draw, has refused to take the test within the meaning of the statute. (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517-1519 [initial refusal to take test, followed by submission to test under verbal protest, is refusal within statutory scheme]; Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162 [same].) Indeed, the courts have concluded a driver has refused to take a test when the driver remains mute when asked whether he or she would submit to a test. (Lampman v. Department of Motor Vehicles (1972) 28 Cal.App.3d 922, 927; Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299.)

Carlton asserts the evidence showed he never refused but instead merely asked the phlebotomist about her qualifications and, upon being satisfied, voluntarily held out his arm to permit the blood draw. Although a driver may refuse to permit a blood draw until he is satisfied the technician is qualified to perform the procedure (Ross v. Department of Motor Vehicles (1990) 219 Cal.App.3d 398, 402-403), the evidence viewed most favorably to the determination below showed Carlton had verbally stated he would not take any test before the phlebotomist had even arrived. A driver cannot "refuse to take a test required by section 13353 and avoid the license suspension mandated by the statute by later agreeing to . . . allow[] blood to be taken" (Barrie v. Alexis, supra, 151 Cal.App.3d at p. 1163) because " '[t]he fact that a blood sample ultimately was obtained and the test completed is of no significance.' [Quoting Cole v. Department of Motor Vehicles (1983) 139 Cal.App.3d 870, 875.] . . . It is the initial refusal which forms the basis for suspension of the driver's license" under section 13353. (Barrie v. Alexis, at p. 1162.) More importantly, Newbury explained Carlton proffered his arm under threat of physical force, while nevertheless maintaining that he protested the blood draw, and did not voluntarily agree to the test once he was satisfied about the technician's qualifications. (Cf. Morgan v. Department of Motor Vehicles (1983) 148 Cal.App.3d 165, 170-171 [refusal found where blood was drawn without physical resistance but threat of physical compulsion was required to force compliance].) The evidence, viewed most favorably to the judgment, provides substantial evidence to support the finding Carlton refused to take a test within the meaning of the statutory scheme.

III

THE PRIOR CONVICTION ISSUE

A. Procedural Posture

Carlton's petition purported to attack the effect of his prior conviction from Florida, asserting (1) it was "inadmissible" under Draeger v. Reed (1999) 69 Cal.App.4th 1511, and (2) it should have been removed from his driving record at the per se hearing. Carlton's petition sought an order directing the DMV to remove the prior conviction from his driving record. In the trial court proceedings, the DMV opposed the relief sought by Carlton, arguing (1) a challenge to a driver's DMV driving record cannot be raised at a per se hearing but instead must be pursued by requesting a distinct administrative hearing to challenge the accuracy of the DMV's driving record; and (2) even if it were permissible to contest the accuracy of the DMV's records at the per se hearing, the supplemental evidence submitted by the DMV at the trial court level in opposition to Carlton's writ petition demonstrated the Florida conviction qualified as a DUI offense under section 13353, subdivision (a)(2).

The trial court ordered the prior conviction issue remanded to the DMV to hold an administrative hearing to consider whether Carlton's Florida conviction was properly entered on his driving record as a prior DUI, and that such remand was without prejudice to Carlton's ability to seek writ relief from the subsequent administrative determination.

B. Legal Framework

A per se hearing is legislatively confined to deciding the four discrete facts listed in section 13557, subdivision (b)(1). (Troppman v. Valverde, supra, 40 Cal.4th at p. 1127; §§ 13557, subd. (b)(1), 13558, subd. (c)(1).) Because "revocation or suspension of a license under section 13353 does not require proof beyond the four factors listed in sections 13353, subdivision (d), and section 13557, subdivision (b)(1), and made exclusive by section 13558, subdivision (c)(1)" (Troppman, at p. 1137, italics added), and there is no reference to a driver's prior convictions in either section 13353, subdivision (d), or section 13557, subdivision (b)(1), the appropriate period of a suspension or revocation appears outside of "the 'only' issues to be resolved at the administrative hearing concerning license suspension or revocation." (Troppman, at p. 1131 [italics added by Troppman].)

However, because the DMV must impose a two-year revocation of the driver's privileges if the violation of the implied consent law (as found under the provisions of sections 13557, subdivision (b)(1), and 13558, subdivision (c)(1)) occurred within 10 years of a specified prior offense (§ 13353, subd. (a)(2)), the courts have recognized the driver must have a mechanism for challenging whether he or she was convicted of one of the specified prior offenses. (Pollack v. Department of Motor Vehicles (1985) 38 Cal.3d 367, 380, fn. 8 (Pollack); Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1523-1524; cf. Isaac v. Department of Motor Vehicles (2007) 155 Cal.App.4th 851.) Accordingly, when a driver disputes the accuracy of the DMV records of his prior convictions, he or she may request an administrative hearing to demonstrate the inaccuracy of the DMV record (Pollack, at p. 380, fn. 8) or may petition for a writ of mandate under Code of Civil Procedure section 10855 to contest whether the DMV accurately recorded the prior conviction. (Draeger v. Reed, supra, 69 Cal.App.4th at 1523-1524; Isaac v. Department of Motor Vehicles, supra, 155 Cal.App.4th at p., 855.)

C. Analysis

We conclude that because the administrative per se hearing requested by Carlton is legislatively limited to specified issues, and the accuracy of the DMV's records of prior convictions is not included within those issues, Carlton's attempt to challenge whether his prior Florida conviction qualified as a specified prior offense interjected issues beyond the jurisdiction conferred on the hearing officer at a per se hearing. Accordingly, the hearing officer's purported "decision" on that challenge was without force or effect. (Cf Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691 ["A judgment is void if the court rendering it lacked subject matter jurisdiction or jurisdiction over the parties. Subject matter jurisdiction 'relates to the inherent authority of the court involved to deal with the case or matter before it.' [Citation.] Lack of jurisdiction in this 'fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.' [Citation.] [¶] In a broader sense, lack of jurisdiction also exists when a court grants 'relief which [it] has no power to grant.' [Citations.]")

However, the trial court's order in effect directed the DMV to afford Carlton a distinct administrative hearing, within the meaning of Pollack, to determine whether Carlton's Florida conviction was properly entered as a DUI on his driving record. Carlton's underlying writ petition, when liberally construed, can be interpreted as pleading an independent claim for mandamus under section 1085 insofar as he contested the propriety of the DMV's entry of his Florida conviction as a qualifying offense onto his driving record. Because we will consider Carlton's "prior conviction" claim as a separate mandamus claim in effect consolidated with his distinct section 1094.5 administrative mandamus claim on the refusal issue, we examine the trial court's order on his prior conviction claim as a separate disposition of a separate claim under Code of Civil Procedure section 1085.

The trial court granted Carlton's petition for a writ by ordering the "prior conviction" issue remanded for an administrative hearing to determine whether the prior conviction "involved driving and can otherwise appropriately be treated as a qualifying prior D.U.I. offense." Although Carlton purports to appeal from this order, a trial court's order on a petition for writ of mandate that grants the petitioner relief by remanding the issue for additional administrative proceedings is not appealable.6 (Board of Dental Examiners v. Superior Court (1998) 66 Cal.App.4th 1424, 1430; Village Trailer Park, Inc. v. Santa Monica Rent Control Bd. (2002) 101 Cal.App.4th 1133, 1139-1140.) Carlton argues this court should, in the exercise of our discretion, treat his improper appeal from this nonappealable remand order as a petition for writ of mandate. (Board of Dental Examiners, at pp. 1430-1431; Village Trailer Park, at p. 1140.) However, we decline Carlton's invitation because the record is inadequately developed on whether his Florida conviction was a "driving"-type offense (which would qualify as a California DUI) or instead was based on being in "control" of the vehicle (which would not qualify as a California DUI). (Compare Draeger v. Reed, supra, 69 Cal.App.4th at pp. 1521-1523 with Isaac v. Department of Motor Vehicles, Inc. 155 Cal.App.4th at pp. 862-864.) Because Carlton has been afforded a hearing at which the relevant factual issues may be addressed, and the trial court's order specifically preserved Carlton's ability to file a subsequent writ petition if he wishes to challenge any adverse determination on the prior conviction issue, we decline Carlton's invitation to treat his appeal as a writ of mandate because it would require this court to speculate on whether the DMV properly treated his Florida conviction as a DUI offense.

DISPOSITION

The orders are affirmed.

McDONALD, J.

I CONCUR:

HALLER, J.

I CONCUR IN THE RESULT:

HUFFMAN, Acting P. J.



1 All further statutory references are to the Vehicle Code unless otherwise specified.



2 The hearing officer also admitted, without objection, the DMV driving record for Carlton.



3 At the continued hearing, Carlton purported to object to the DMV record, asserting the Florida conviction was not for DUI and therefore should be stricken from his driving record.



4 The hearing officer also concluded Carlton's DMV driving record was correct.



5 The proper method of obtaining judicial review of most public agency decisions is by instituting a proceeding for a writ of mandate, and the statutory scheme provides for two types of review by mandate: ordinary mandate and administrative mandate. (Code Civ. Proc., §§ 1085, 1094.5.) The applicable type of mandate depends on the nature of the administrative action or decision to be reviewed. (Tielsch v. City of Anaheim (1984) 160 Cal.App.3d 570, 574.) Although the general rule is that quasi-legislative acts are reviewed by ordinary mandate and quasi-judicial acts are reviewed by administrative mandate (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-567), "judicial review via administrative mandate is available 'only if the decision[] resulted from a "proceeding in which by law: 1) a hearing is required to be given, 2) evidence is required to be taken, and 3) discretion in the determination of facts is vested in the agency. [Citations.]" [Citation.]' [Quoting Weary v. Civil Service Com. (1983) 140 Cal.App.3d 189, 195.] Thus, ordinary mandate is used to review adjudicatory actions or decisions when the agency was not required to hold an evidentiary hearing." (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848.) Under the relevant provisions of the Vehicle Code, foreign convictions must be recorded into a driver's record and given the same effect as if they had occurred in California (§§ 15023, subd. (a), 1806, subd. (a)) and, because such entry is mandatory, no hearing is required prior to entry of a conviction onto a driver's record. (§ 14101, subd. (a).) We therefore construe the statutory scheme to require that, if the DMV declines a driver's request for an administrative hearing under Pollack, supra, 38 Cal.3d at p. 380 seeking to remove a conviction from the records because of the inaccuracy of the DMV record, any judicial challenge to the propriety of the DMV's action must proceed by writ of mandate under Code of Civil Procedure section 1085.



6 We recognize that Draeger v. Reed, supra, 69 Cal.App.4th 1511 suggests the trial court's order, insofar as it compelled the DMV to hold an administrative hearing on whether Carlton's Florida conviction was properly entered as a DUI on Carlton's driving record, may have been erroneous as to the DMV. (Id. at pp. 1523-1524.) However, the DMV has not sought review of that order.

Easter egg hunts don't mix well with drinking lots of alcohol.

California DUI lawyers warn that easter egg hunts don't mix well with drinking lots of alcohol.

California DUI Charges have been filed against the man accused of causing a California DUI accident that killed a four-year-old over the weekend.

45-year-old Stephen Watson was allegedly driving the truck that slammed into another vehicle at American and Indianola in Fresno County on Sunday, according to California DUI attorneys.

California DUI Investigators say Watson was California DUI - drunk driving and tried to run from the California DUI accident scene. Four-year-old Elias Pico of Fresno was killed the California DUI collision. His family was on the way to an Easter egg hunt when the California DUI accident happened, California DUI lawyers are told.

Watson faces multiple California DUI charges, including manslaughter and enhancements because of a prior California DUI and hit-and-run conviction 14 years ago, California DUI lawyers learned.

California DUI checkpoint in Santa Clarita California this weekend

California DUI attorney information - California DUI checkpoint news

California DUI Checkpoint This Weekend

Thursday, 27 March 2008

California DUI Sheriff’s will be looking for California DUI / Drunk Driving Suspects in Santa Clarita this weekend, California DUI lawyers understand.

On Friday night, from 7:00pm to 3:00am, Sheriff’s California DUI deputies will set up a California DUI / Drunk Driving Checkpoint somewhere in Santa Clarita, according to California DUI attorneys.

Usually California DUI checkpoints are set up on major roads, and California DUI checkpoints / roadblocks involve the screening of all vehicles traveling that road, California DUI lawyers note.

California DUI checkpoints are said to be aimed to be a deterrent, providing a reminder to local residents to not be California DUI and maybe even to never drink and drive, say California DUI lawyer cynics.

Tuesday night California DUI checkpoint is waste of money

California DUI attorneys

A California DUI sobriety checkpoint in Costa Mesa turned up plenty of tickets, but no DUIs Tuesday night, California DUI police officials said.

Costa Mesa California DUI police set up a California DUI sobriety checkpoint at 19th Street and Pomona Avenue Tuesday night and screened 289 of 772 cars, or about every third car, according to a report released by California DUI police Wednesday.

Police found only two people worthy of a California DUI investigation, and both were let go, the report said. Two vehicles were towed, and 11 drivers were issued citations for driving with a suspended license or no license at all. California DUI Officers issued three more tickets for minor offenses near the California DUI checkpoint.

The California DUI grant was funded by the California Office of the Traffic Safety. California DUI Checkpoints are often a reminder not to drink and drive, as opposed to saturation / California DUI patrols, used to get drunk drivers off the road, California DUI police said. Obviously, this was a waste of money per California DUI attorneys.

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California DUI Evaluation at http://www.sandiegodrunkdrivingattorney.net/survey.html .

For your best California DUI defense attorney strategy and a California DUI - DMV lawyer who will vigorously protect your important driving privilege.

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Wednesday, March 26, 2008

Bon Jovi Guitarist arrested for California DUI in Laguna Beach

California DUI attorney news

A rock n roll celebrity bites the California DUI dust. Richie Sambora has been arrested for California DUI - drunk driving, per California DUI attorney information.

The beautiful Orange County beach town of Laguna Beach, California, home of legendary California DUI lawyer Barry Simons and his fine California DUI / criminal defense firm (949/497-1729), was rocked last night by the latest celebrity California DUI arrest.

The Bon Jovi guitarist, Richie Sambora, was arrested Tuesday night by Laguna Beach, California, police on suspicion of California DUI, according to California DUI lawyer sources.

Sambora reportedly checked himself into rehabilitation due to depression and alcoholism after his divorce from Heather Locklear and the death of his father, California DUI lawyers are told.

Want out of a DUI manslaughter sentence? Prison Escape

California DUI lawyer news

The Kern County State Prison facility noticed two men missing at the 9:30 p.m. count Monday. Both men were in minimum security and the escape is being considered a walk-away.

The missing men are twenty-six-year-old Filipe Ramirez Suarez and twenty-four-year-old Francisco Sanchez, who also goes by Frankie Escobar. Both men are from Los Angeles County.

Suarez was incarcerated for California DUI manslaughter with gross negligence; Sanchez was serving time for California DUI.

The prison has an escape detail working with local law enforcement to find the men.

Delano is in the Central Valley, about 30 miles north of Bakersfield.

The escape is contrary to the wishes of his California DUI attorney.

Tuesday, March 25, 2008

Set fire while inside historic California home - DUI!

California dui attorney news

A California dui man accused of setting a fire inside the historic home of the San Francisco fire chief in February pleaded not guilty Monday to misdemeanor California dui / drunk driving in San Mateo County, according to California dui attorneys.

Lance Farber, 47, is currently in custody in San Francisco County Jail and entered the plea in San Mateo County Superior Court in South San Francisco through his California dui attorney, California dui attorney sources reported. A jury trial on the California dui charge is scheduled for May 27. California dui lawyers understand.

Lance was allegedly living at the landmark Dennis T. Sullivan Memorial Fire Chief's Home with his boyfriend, newly appointed San Francisco Planning Department Director John Rahaim, and during a domestic spat on Feb. 22, threw food around the residence, vandalized furniture, and set fire to a mattress.

Rahaim was not home at the time and Farber was arrested later on U.S. Highway 101 in San Mateo County.

According to San Mateo County California dui attorney prosecutors, Farber's blood-alcohol level at the time was between 0.12 and 0.13. The legal blood-alcohol limit to drive in California is .08.

Farber has also pleaded not guilty in San Francisco Superior Court to felony counts of arson of an inhabited dwelling, arson of property, and vandalism exceeding $400 in damages, as well as a misdemeanor charge that he violated a restraining order against his boyfriend.

Though none of the 1922 landmark's historical items were damaged, fire officials estimated the cost of re-carpeting and re-painting the home at about $30,000.
The incident prompted the San Francisco mayor's office to discontinue an informal arrangement allowing new department heads resettling from other cities to stay temporarily at the Fire Chief's home, California dui attorneys heard.

Every 15 minutes someone in US dies in DUI - related crash - California DUI presentation

California DUI attorney news

Riverside California DUI police, CHP California DUI officers and California Office of Traffic Safety California DUI staff will present ``Every 15 Minutes'' -- a program giving a ``realistic picture'' of a DUI-related fatal crash -- to Norte Vista High School students on Wednesday and Thursday, California DUI attorneys said.

The California DUI program's title is derived from statistics showing that someone in
the United States dies in a DUI-related crash every 15 minutes.

Beginning at 10 a.m. Wednesday, students will participate in a simulation of the various stages of a fatal collision, said California DUI lawyers.

Selected students will act as drivers and injured passengers during ``on- scene triage, DUI investigation and hospital treatment,'' California DUI lawyers are told.

Riverside Fire Department personnel, American Medical Response ambulance
crews and representatives the Akes Family Funeral Home will contribute to the
program, intensifying the experience, according to California DUI attorneys.

``At the conclusion of the collision scene, the participating students will be taken to Riverside Superior Court for the sentencing hearing of the DUI driver,'' Frasher said. ``Students will then begin an overnight retreat with activities designed to show the effects of driving under the influence of alcohol or drugs.''

At 10 a.m. Thursday, students who portrayed fatal victims will be reunited with their families during a senior class assembly, at which a video of the prior day's events will be shown, California DUI lawyers believe.

Law enforcement and victims' rights representatives will make presentations at the assembly, which is expected to conclude around noon, California DUI attorneys understand.

Monday, March 24, 2008

DUI, fall in creek, arrested in California

A California DUI man led police on a circular freeway chase early Sunday and was finally arrested for California DUI after he fell into a creek, California DUI lawyers say.

James Silveira, 31, was booked into County Jail in Martinez on suspicion of California DUI - driving under the influence and failure to yield. He is being held without bail for a probation violation, indicate California DUI attorneys.

Silveira was spotted driving at a high rate of speed on northbound Interstate 680 near Stone Valley Road around 2:30 a.m., said California DUI attorneys.

Lafayette California DUI officers were called to stop the vehicle after the California DUI suspect got on westbound Highway 24, Hebel said, but he ignored the California DUI officers' attempts to get him to pull over.

California DUI suspect Silveira eventually made his way back to Interstate 680 -- southbound this time -- and then his right front wheel came off near Crow Canyon Road.

After the vehicle came to a stop, he tried to run away, but instead fell down a 15-foot embankment into a creek, California DUI attorneys understand.

California DUI suspect Silveira stopped running and was arrested for California DUI and booked into jail without incident, California DUI lawyers are told.

California DUI checkpoints head to Imperial County CAlifornia

California DUI checkpoints head to Imperial County California

You might want to get a cab next time you drink in Imperial County California. The Calexico police department is holding numerous California DUI - Drunk Driving checkpoints around town.

This comes after they received a three-year grant for about $300,000. The money will also go to more California DUI officers patrolling for California DUI drivers.

California DUI Checkpoints will take place throughout the holiday season and conitune through next year. California DUI Police say so far they've arrested one person for California DUI - under the influence since last weekend.

California DUI simulation at San Diego State March 25

San Diego California DUI attorneys news

SDSU received the College Spirit Award for outstanding public service to reduce drunk driving from RADD, the entertainment industry's voice for road safety. The RADD California Coalition (RCC), of which SDSU is a founding partner, is a statewide initiative funded by the California Office of Traffic Safety to promote effective use of non-drinking designated drivers by Californians age 21 to 34.

SDSU's Alcohol and Other Drugs (AOD) Initiatives program received the award for being a leader in developing and implementing RCC programs and AOD education presentations, policy and program coordination, community outreach, resource development and research.

Housed within Student Health Service's health promotion department, AOD Initiatives also targets Pacific Beach, a well-known hotspot for student drinking and drunk driving problems, coordinating awareness events and programs.

According to the National Institute on Alcohol Abuse and Alcoholism, each year it is estimated that over 1,700 college students die from alcohol related causes; 78% of these come from traffic incidents.

As part of the continuing effort to educate students on the dangers of California DUI - drunk driving, AOD will host a California DUI simulation event on campus from 10 a.m. to 3 p.m. on Tuesday, March 25.

Other sponsors of the event include Associated Student/Cultural Arts and Special Events, SDSU Athletics, Counseling and Psychological Services, Residential Education and the Residential Housing Association.

AOD Programs on Campus

SDSU initiates several programs throughout the year to help reduce alcohol and other drug use and abuse by students. Aztec Nights, an alcohol-free activities program for residential students provides alternative activities for students to participate in, rather than going to a party to drink alcohol.

In addition, Operation: Campus Sweep limits the amount of unsolicited advertising promoting drinking venues that encourage excessive drinking. A team of student volunteers scour the campus looking for advertisements that do not conform to posting policies and remove them.

Other alcohol abuse prevention programs at SDSU include:

Peer education programs
The online e-CHUG personal alcohol assessment survey
ASPIRE counseling program - a sanction imposed program for students with alcohol violations
ASPIRE Counseling Program

Offered through SDSU Counseling and Psychological Services, ASPIRE counselors meet regularly with students throughout the semester following their violation to discuss lifestyle and choices. Participating students receive personalized feedback about alcohol use and family risk factors.

The university also works closely with city and county alcohol abuse prevention and counseling services.

California DUI lawyers applaud these efforts.

California DUI attorney checkpoint update - weekend news

California DUI attorney checkpoint update - weekend news

One California DUI arrest was made during a California DUI / drunk driving checkpoint in Visalia on Sunday, according to California DUI lawyers. Two arrests were made for other violations.

Eleven vehicles were towed, 11 California DUI field sobriety tests were given and 138 traffic citations were issued including seven for driving on suspended licenses.

California DUI Officers from Visalia, Dinuba, Tulare, Porterville, Farmersville and Woodlake police departments and officers from the Visalia office of the California Highway Department worked the California DUI - drunk driving detail.

Sunday, March 23, 2008

East Coast breath test case looked at by California DUI lawyers

East Coast breath test case looked at by California DUI lawyers

Drunk Driving / DUI / DWI Attorney John Williams has a nickname for three dozen people he is defending in and around Sussex County: "Chun clients."

It's hardly an inside joke. The clients, charged with Drunk Driving / DUI / DWI, received their namesake from "perhaps the biggest decision to come along for municipal courts, certainly DWI, in 20 years," Drunk Driving / DUI / DWI attorney Williams said.

In State v. Jane H. Chun, the state Supreme Court on Monday ruled that the Alcotest 7110 breath test used by police throughout the state is scientifically reliable.

Since Jan. 10, 2006, an order known as the "Chun stay" has allowed people who entered guilty pleas to driving while intoxicated to hold onto their driver's licenses pending the high court's exhaustive review of the Alcotest.

The ruling, which stems from a case by 28 defendants in Middlesex County, will allow roughly 10,000 Drunk Driving / DUI / DWI cases in New Jersey to move forward.

Sparta police acquired an Alcotest machine in April 2006, making it the first department in Sussex County to replace the outdated, yet reliable, Breathalyzer, according to Drunk Driving / DUI / DWI attorneys.

Out of 208 people tested on the Alcotest, 87 have become "Chun cases" pending last week's ruling, Drunk Driving / DUI / DWI lawyers said.

"It's part of the process," he said. "It's a good thing. If there were any glitches with the Alcotest, it's worked out now. You want to hear both sides."

The court's opinion will have an immediate impact on municipal courts, where many DWI defendants must turn in their driver's licenses unless they can muster a Drunk Driving / DUI / DWIdefense.

"It's huge," said Andrew Fraser, municipal prosecutor for Sparta. "When they rolled out this new instrument, it was not deemed scientifically reliable."

Drunk Driving / DUI / DWI Attorneys agreed that the Alcotest, made by Draeger Safety Diagnostics, is an impressive, state-of-the art machine, but it replaced the Breathalyzer statewide before it was tested on a narrower scale.

"I wish, looking back, they had picked a town and tested it side-by-side," Fraser said. "They put the cart before the horse, but I'm glad the horse showed up."

Williams said the Alcotest has proven to be a dependable resource, comparable to accepted forms of speed radar and unlike debatable technology such as lie detectors.

But, he said, the court's opinion does note problems with the Drunk Driving / DUI / DWI machine.

"(The state) kind of fumbled the ball on the one-yard line," he said.

In a highly complex outline of 13 scientific issues, the court said prosecutors must use a corrective formula to account for "buffer overflow" error when a third breath sample is taken instead of just two.

A third sample is taken when the first two tests are not in "tolerance," meaning within .01 percent of each other.

Breath samples are collected eight to 12 minutes apart to ensure that the readings give an accurate view of a person's blood alcohol content, Drunk Driving / DUI / DWI attorneys said. Drunk Driving / DUI / DWI Defendants who do not have a strong defense based on tolerance will likely be found guilty and penalized, Drunk Driving / DUI / DWI lawyers added.

The court also said the Draeger company must make Alcotest training available to licensed attorneys at a reasonable time, cost and location.

In his Hamburg office, Williams has four bulky seminar books devoted solely to Alcotest issues.

Based on his knowledge of the Alcotest margin of error, he might argue in court that some of his clients should receive a three-month suspension — for readings .08 or .09 BAC — instead of a seven-month suspension for a reading higher than 0.1 percent.

"If you're going to draw a bright line, the yardstick that measures up to that line must be accurate," Drunk Driving / DUI / DWI defense attorney Williams said.

Drunk Driving / DUI / DWI defense lawyer Williams said it was "irresponsible" of the state to roll out the Alcotest before it was thoroughly reviewed by the high courts.

The state attorney general's office could not be reached for comment on Good Friday.

On Monday, state Attorney General Anne Milgram issued a statement noting she was "pleased with the Court's decision upholding the scientific reliability of the Alcotest and the admissibility of its results in evidence.

The court's ruling provides a firm foundation for using this next generation of breath testing instrument in the enforcement of our drunken driving laws."

Alcotest's push-button technology is certainly more cutting edge, even by appearances, than the dials exposed to human error on the Drunk Driving / DUI / DWI Breathalyzer.

"This is literally a museum piece now," Beebe said, handling a Breathalyzer. And yet, "this is a very reliable instrument when properly operated."

There have been cases in New Jersey, in which officers have been accused of rounding up to a higher number the blood-alcohol content that appeared on the Breathalyzer.

With the Alcotest, an officer simply types in the suspect's name and monitors the breath samples.

"It's mistake-proof, in that the officer or trooper pushes the button, and it spits out a reading that cannot be changed or manipulated in any way," Drunk Driving / DUI / DWI lawyers are incorrectly told.

The purported simplicity of operating the Alcotest is rivaled by the density of the 131-page Chun decision.

Drunk Driving / DUI / DWI attorneys in California have been watching this.

Saturday, March 22, 2008

Go for the gusto in www.SanDiegoDrunkDrivingAttorney.net

california dui criminal defense lawyer news

Surprised to see what a difference there is between San Diego and other parts of Southern California when it comes to a San Diego California DUI lawyer.

If you are in the San Diego California attorney area and have the need for a San Diego California DUI attorney, make a note to look up the San Diego California DUI Dream Team defense at www.SanDiegoDrunkDrivingAttorney.net . Get a San Diego California DUI attorney who can launch the most aggressive San Diego California DUI defense for you.

Sometimes bad things happen to good people. If you have a need for DUI / Criminal Defense Attorneys in San Diego California, don’t take chances with a cheap or inexperienced San Diego California DUI attorney - go for the best San Diego California DUI lawyer at www.SanDiegoDrunkDrivingAttorney.net .

College Drunk Driving Simulator & College California DU consequences

California Drunk Driving Criminal Defense Attorney news

College students know the dangers of California DUI / drunk driving, but sometimes a gentle reminder is required.

On Monday, nearly 30 students took turns sitting in a California DUI /drunk driving simulator. Students jumped into the driver's seat with a headset strapped on. At the same time, they manipulated the steering wheel, accelerator and brake.

The headset was a video simulation of other vehicles and pedestrians sharing the road with the student imitating a California DUI /drunk driver. A laptop computer was also set to pre-programmed California DUI blood alcohol concentrations scenarios.

The California DUI / Drunk Driving experience was more effective compared to the on-campus simulator in fall 2006, which consisted of a steering wheel setup like a video game.

The purpose was to teach students the effects of drinking too much alcohol in a short period of time and not being able to operate a vehicle safely, thereby risking a California DUI / drunk driving charge, California DUI lawyers state.

Excessive drinking is a nationwide problem, especially with minors. Chico State and San Diego State are considered party schools, whereas Sacramento State is not really considered a destination party school.

At Sac State, a level one offense would be if an underage student is caught drinking alcohol or being in a dorm room with alcohol present, even if they don't drink it.

The first offense is corrected by paying a $35 fee and attending a three hour class to learn about standard drinking, alcohol poisoning and alternatives to drinking.

A level two offense is a second involvement with alcohol and requires a mandatory three hours of counseling.

During that time, students will assess themselves, their values, their major, family history and drinking history.

A third offense will result in a meeting with Leonard Valdez, the judicial officer at Sac State. Valdez can expel the student from the university, California DUI attorneys found out.

The Sac State Safe Rides program coordinates clubs or organizations like the fraternities and sororities to volunteer their time to pick up Sac State students, staff or faculty who may have had too much alcohol.

Safe Rides operates from 10 p.m. to 2 a.m. Thursday through Saturday during spring and fall semesters.

The volunteers give inebriated Sac State students, staff or faculty a courtesy ride within a five mile radius of campus, in order to avoid a California DUI.

California DUI Lawyer Center Blog: SanDiegoDrunkDrivingAttorney report - California DUI lawyer announcement

SanDiegoDrunkDrivingAttorney report - California DUI lawyer announcement

California criminal defense DUI attorney - San Diego Drunk Driving Attorney news

If you live in California, including in San Diego California, and have California DUI legal problems, you need a very good California criminal defense DUI lawyer.

Your chances of having things turn out the way you want them to increase when you have a top quality California criminal defense DUI attorney specialist working for you, and California criminal defense DUI spcialist attorneys are hard to find.

Find a California criminal defense DUI lawyer with 24 years Drunk Driving / DWI / DUI / criminal defense experience.

Visit http://www.SanDiegoDrunkDrivingAttorney.net for help.

Or call 1-800-THE-LAW-DUI anytime.

California DUI criminal defense lawyers have answers to questions.

Friday, March 21, 2008

California DUI criminal defense lawyers - checkpoint announcement

California DUI criminal defense lawyers - checkpoint announcement

San Bernardino County Sheriff’s deputies plan a California DUI drunken driving/drivers license checkpoint on from 7 p.m. Saturday night until 3 a.m. Sunday at an undisclosed location, California DUI attorneys just learned.


All vehicles may be checked and drivers who are California DUI - under the influence of alcohol and/or drugs will be arrested.


By publicizing these California DUI enforcement and education efforts, the Victorville sheriff’s station believes motorists can be deterred from drinking and driving while impaired and hope to encourage sober designated drivers.


California DUI drunk driving checkpoints are conducted to identify offenders and get them off the street to reduce tragedies where people are senselessly injured or killed by impaired drivers, as well as insuring drivers have a valid driver’s license.


The public is encouraged to help keep roadways safe by calling 911 if they see a suspect a driver of being impaired or California DUI .


This California DUI checkpoint was funded through local funds and from a $597,000 grant from the California Office of Traffic Safety.

Mock California DUI crash hits home at high school

California DUI criminal defense attorneys - high school news

After a California DUI / drunk driver killed 14-year-old West Covina High School freshman Nathaly Bautista, the incident is still a difficult one to talk about.

One's eyes well with tears as she recalled the former student and the promise her life held before it was cut short in October 2003.

Bautista would have graduated last year. She was an honor student, a cheerleader, a soccer player, and led a youth group at her church, California DUI attorneys found out.

The California DUI drunk driver, then 30-year-old Isaias Casillas of La Puente, is serving a seven-year sentence after pleading guilty to vehicular manslaughter with gross negligence and leaving the scene of an accident, California DUI lawyers said.

The memories returned as police, fire officials, and other organizations put on a somber show at the school Thursday.

A mock two-car California DUI - drunk driving crash set up directly in front of the school awaited more than 1,200 juniors and seniors who were summoned to witness the event shortly after 11 a.m.

Five students played the part of California DUI victims in the crushed cars as part of the Every 15 Minutes program, spearheaded by the West Covina Police Department, said California DUI attorneys.

Students, who laughed and talked loudly minutes earlier, stared in silence as firefighters sawed the top of one of the mangled cars and treated the "injured." One of the California DUI passengers was pronounced dead at the scene and was picked up by a hearse. Another was picked up by a helicopter that landed at the school and was flown to the hospital.

The driver of one of the cars was given a California DUI field sobriety test by a police officer and was arrested on suspicion of California DUI - drunken driving.

More than a dozen other students painted their faces white and stood silently to symbolize the dozens of people killed in California DUI / drunk driving related crashes daily. California DUI lawyers' clients must show remorse.

Helpful California constitutional rights case

California DUI lawyer news

When a California DUI officer approaches you on the street, or knocks on your door at home, does that mean you are not free to leave, and/or that your must allow admission into your home? There are no clear answers and California DUI Criminal Attorneys litigate, almost daily, difficult search and seizure motions by filing Motions to Suppress.

If the California DUI situation is considered a “consentual encounter,” under Search and Seizure caselaw interpreting the Fourth Amendment of the U.S. Constitution, then California DUI police officers do not need a reasonable basis or reason to speak to the person, i.e. they are just making “small talk” — which means that the California DUI officer can come up to the person and begin speaking. Of course, if you follow this train of reasoning, the California DUI person can just walk away right? Can the person just shut the door in the California DUI officer’s face? While in theory the answer to both questions is yes, how many times will police officers just let the California DUI person walk away, or stand having a door slammed? Probably never. If anything, the California DUI police officer will find an articulable basis to “detain” the person, to explain his belief that the person is involved in California DUI criminal activity. This reasonable basis is required to justify California DUI law enforcement’s intrusion on the person’s right to privacy under the U.S. Constitution. The greater the intrusion, the greater the need to justify the search and seizure under criminal constitutional law. Thus, California DUI police officers entering a person’s home - regardless if a California DUI or not - requires a much greater level of lawful justification, than detaining someone on the street.

A recent court of appeal decision clarifies further for all criminal lawyers in California - what is a “detention” (requiring justifying) under the Constitutional framework, as opposed to a consentual encouter (requiring none). The First District Court of Appeals ruling states that a police officer’s actions can give rise to a detention under the Fourth Amendment, despite the absence of any verbal commands. The court held that Defendant McKinley William Garry was “detained” when a police officer illuminated him with a spotlight and rushed directly at him while asking about his legal status, because the officer’s non-verbal actions constituted a show of authority so intimidating as to communicate to any reasonable person that he was not free to decline the officer’s requests or otherwise terminate the encounter.
As a result, the court held, the officer’s subsequent search of Garry upon learning that Garry was on parole during the encounter violated the Fourth Amendment, and the trial court should have suppressed drug evidence found during the search.

Garry was arrested and charged with one count of possessing cocaine base for sale after Officer Brian Crutcher saw him standing near a parked car in a Vallejo neighborhood known as a high-crime, high-drug area. Crutcher, who was in full uniform and armed with a baton and gun, was on patrol in a marked police vehicle at the time. Crutcher observed Garry for five to eight seconds, and then turned on his patrol car’s spotlight, emitting a white light and illuminating Garry. Upon exiting his patrol car, Crutcher noticed that Garry looked nervous, so he quickly approached Garry, covering 35 to 40 feet in less than five seconds. Taking a few steps back, Garry pointed to a nearby house and said that it was his residence. Crutcher asked Garry if he was on probation or parole, and when Garry admitted to the latter, Crutcher arrested him and conducted a search incident to the arrest, revealing the presence of cocaine. Before trial, Garry moved to suppress the evidence, arguing that it was found as the result of an illegal detention. He contended that Crutcher’s non-verbal actions—particularly the use of the spotlight and the rapid approach—employed a level of intimidation that amounted to an unlawful detention. The prosecution responded that Crutcher used the spotlight to illuminate the high-crime area for his own safety, and then merely approached Garry and asked him if he was on parole. It argued that Crutcher only detained Garry after receiving an affirmative answer, and pointed out that Crutcher did not verbally order Garry to stop or to approach Crutcher. The trial judge agreed with the prosecution and denied the suppression motion, and Garry was later convicted as charged. On appeal, Justice James R. Lambden said that a detention had occurred when Crutcher shined the spotlight and rushed towards Garry. Noting that previous cases in California had not found the use of a spotlight alone to constitute a detention, he said that the cases nonetheless indicated that a spotlight’s use should be considered in determining whether was a show of authority had taken place that was sufficient to establish that a detention occurred: “Crutcher’s testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person…No matter how politely Crutcher may have stated his probation/parole question, any reasonable person who found himself in defendant’s circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be ‘under compulsion of a direct command by the officer.’”

In sum, this legal decision adds another argument into a California DUI / drunk driving criminal defense lawyer’s arsenal for defending a California DUI client’s constitutional rights. Search and seizure motions, under Penal Code Section 1538.5, are very important, as a successful result usually leads to the unlawfully seized evidence being suppressed, and the California DUI criminal case being dismissed.

Thursday, March 20, 2008

California DUI staged presentation for high school.

California DUI criminal defense attorney news

Ventura County firefighters and paramedics, extract a student volunteer from a car on the California State University Channel Islands campus during a staged California DUI drunk driving car accident Wed., March 12. The California DUI presentation was part of the "Every 15 Minutes" program, which helps raise awareness on high school and university campuses of the dangers of California DUI drunk driving. Yovani Lopez, an actress in the California DUI accident recreation, brings a gruesome realism to the California DUI presentation, as her blood-stained hand smears the car door.

Week apart for California dui cases for same guy

California dui criminal defense lawyer news

Five people were injured when a suspected drunk driver rammed into the back of one car, triggering another rear-end collision, according to California dui attorneys.

That California dui crash happened just before noon on Yosemite Avenue in Manteca. Officers took Tom Flynn, 47, into custody on suspicion of California dui - having a blood alcohol content well over the legal limit of .08.

One of the California dui officers at the scene arrested Flynn just a week ago, on the exact same charge, and even took away his driver's license.

According to California dui lawyers, Flynn was allegedly driving an estimated 45 miles per hour in his SUV when he slammed into a small tan car that was stopped. The California dui impact pushed that car into the truck in front of it. None of the injuries were thought to be life-threatening, according to California dui attorneys.

California dui police said Flynn was living out of his vehicle after going through a home foreclosure. In addition to clothes and other items, California dui officers found an ice chest full of ice and cold beer in his SUV.

Need evidence recording was done at or near time of blood test analysis in California DUI - DMV cases

California DUI criminal defense attorney news

Filed 2/19/08 Sullivan v. Valverde CA2/6

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MARK FRANCIS SULLIVAN, JR.,
Plaintiff and Appellant,

v.

GEORGE VALVERDE, as Director, etc.,

Defendant and Respondent.
2d Civil No. B193938
(Super. Ct. No. CIV 240286)

(Ventura County)


The Department of Motor Vehicles (DMV) suspended the driver's license of Mark Francis Sullivan, Jr. following his arrest for driving with a blood alcohol concentration (BAC) of .08 percent or more. (Veh. Code, § 13353.2, subd. (a)(1).)1 He appeals from the denial of his petition for a writ of mandate to vacate the suspension. We affirm.

FACTS AND PROCEDURAL HISTORY

California Highway Patrol Officer Alcantar was on duty in Ventura County after midnight. While traveling westbound on Thousand Oaks Boulevard, he observed appellant driving a Chevrolet Camaro approximately 10 car lengths ahead in the No. 1 lane. Alcantar watched as the Camaro drifted towards the right side of the roadway where it straddled the broken white lines between the No. 1 and No. 2 lanes for approximately five seconds, before changing into the No. 2 lane. Approximately four seconds later, the Camaro drifted slowly towards the left side of the roadway where it straddled the broken white lines between the No. 1 and No. 2 lanes for approximately six seconds. Alcantar then conducted an enforcement stop.

Alcantar approached the car and smelled a strong alcoholic odor. He asked how much alcohol appellant had consumed, and he answered "nothing." His speech seemed to be slurred and his eyes were red and watery. Alcantar asked appellant to step out of the car, and noticed that his gait was unsteady.

After conducting a series of field sobriety tests, Alcantar concluded that appellant was under the influence of alcohol and placed him under arrest for violation of section 23152, subdivision (a). Among the tests performed was a Horizontal Gaze Nystagmus in which appellant "displayed [a] lack of smooth pursuit, early onset, with sustained and distinct nystagmus at maximum deviation." While performing the Romberg Stand, appellant opened his eyes 17 seconds into the test and estimated 29 seconds to be 30 seconds. On the Romberg, the one-legged stand and the walk and turn, appellant swayed from side to side one to two inches from his center mass.

Alcantar informed appellant of "implied consent" (§ 23612) and appellant requested a blood test. He was driven to the hospital where he provided a sample. An analysis of his blood revealed a BAC of .12 percent.

The DMV held an Administrative Per Se hearing regarding the suspension of appellant's license and issued findings that he had been driving with a BAC of .08 percent or more; Officer Alcantar had reasonable cause to stop him; and the arrest was lawful. His license was suspended for four months. Appellant challenged his suspension through a petition for writ of administrative mandate in the superior court. At the hearing on the writ petition, he argued that the suspension should be vacated because (1) Officer Alcantar lacked reasonable cause to make a traffic stop, and (2) the results of the blood test were unreliable and inadmissible.

The trial court rejected these arguments and denied the petition stating, "The court finds that there was reasonable suspicion for Officer Alcantar to detain [appellant] to ascertain whether he was driving under the influence of alcohol. The weaving observed by the arresting officer was sufficient basis for any reasonable person to suspect that a crime may have been occurring. The detention of petitioner was reasonable and lawful." The court found that the laboratory report was properly received into evidence.

DISCUSSION

Legality of Arrest

On appeal, we determine whether the trial court's factual findings were supported by substantial evidence and independently review its legal determinations. (Lake v. Reed (1997) 16 Cal.4th 448, 457.) The DMV may only suspend a driver's license for driving under the influence if the person was placed under lawful arrest. (§ 13557, subd. (b)(2); Gikas v. Zolin (1993) 6 Cal.4th 841, 847.) "Even if the circumstances are as consistent with lawful activity as with criminal activity, the officer may still rightly 'inquire into such circumstances "in the proper discharge of the officer's duties."' [Citation.] "'The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.'"" (Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476-477.)

Appellant argues that his arrest was unlawful because Alcantar lacked reasonable cause to make a vehicle stop. He claims he did nothing more than straddle a lane line, and cautiously change lanes. Appellant asserts that there was no indication in the reports that he was speeding or driving erratically. His argument is without merit. It was not necessary for Alcantar to observe such behavior before making a stop. He was entitled to inquire into the circumstances of appellant's driving pattern in the proper discharge of his duties.

The trial court did not err when it ruled that appellant was properly detained and that his arrest was lawful.

Blood Alcohol Test

Appellant argues that the license suspension must be vacated because the forensic alcohol analysis report did not satisfy the foundational requirements of the official records hearsay exception under Evidence Code section 1280.

Section 1280 provides a hearsay exception for a writing when it is (a) made by and within the scope of duty of a public employee; (b) made at or near the time of the act, condition or event; and (c) the source of information and method and time of preparation were such as to indicate its trustworthiness. Appellant argues that prongs (b) and (c) were not met--the report was not made "at or near" the time his blood was tested; and the report was not trustworthy because it failed to identify the individual who performed the analysis.

Appellant was arrested on January 7, 2006. His blood sample was tested by the Ventura County Sheriff's Department Crime Laboratory. Their report reflected that the sample was received on January 10, and tested on January 11. In fine print on the bottom left hand corner of the page was a notation that the report was approved and released on January 24, 2006.

The laboratory report was signed by Eileen Boyd, Forensic Alcohol Supervisor. She declared under penalty of perjury that the blood analysis "was performed during the regular course of my duties, . . . I am a licensed FORENSIC ALCOHOL SUPERVISOR . . . I am qualified to perform these analyses pursuant to title 17 of the California Code of Regulations, and that the equipment used in arriving at the results was in proper working order at the time this analysis was performed and that the recording of the analysis was done at the time of the analysis."

The trial court determined that the laboratory report was properly admitted by the administrative hearing officer. We review the trial court's ruling on a timeliness requirement under section 1280, subdivision (b) for an abuse of discretion. (People v. Martinez (2000) 22 Cal.4th 106, 119-120; see also Glatman v. Valverde (2006) 146 Cal.App.4th 700, 703 & fn. 2.) Where "there is a laboratory report of chemical test results, the burden is on the licensee to demonstrate the test was not properly performed." (Spitze v. Zolin (1996) 48 Cal.App.4th 1920, 1933.)

Appellant speculates that the language in the report suggests that the test could have been performed by another person and approved by Ms. Boyd after the fact. He contends that, if the report was properly admitted, there must nevertheless be a foundational document prepared after the initial testing before the January 24, 2006 report was issued, because it is unlikely a forensic examiner could recall the results of various tests performed over a two-week period. He claims the burden was on the DMV to produce that foundational document, if one existed.

Relying on Glatman, appellant argues that the BAC was not timely recorded because two weeks had elapsed between Ms. Boyd's testing of the sample and the release of the report. In Glatman, the trial court found that a laboratory analysis that was recorded five days after the testing did not satisfy the requirement that the recording of the lab test was made "at or near the time" the analysis was conducted, and should have been excluded by the hearing officer. (Glatman v. Valverde, supra, 146 Cal.App.4th at p. 706.)

Glatman, however, concerned a computer printout which showed no reference to the date the tests results were entered into the computer database, and was silent as to the requisite recordation procedures. (Glatman v. Valverde, supra, 146 Cal.App.4th at p. 704.) Here, the laboratory report indicated the date the sample was received and tested. It contained Ms. Boyd's statement under penalty of perjury that the she was qualified to perform the test, the equipment was in working order, and "the recording of the analysis was done at the time of the analysis." The fine print at the bottom of the page indicating the approval and release date of the document is not determinative of the date the BAC analysis was performed and recorded.

There is no bright line test for determining when a writing must be made under Evidence Code section 1280. "[T]he timeliness requirement 'is not to be judged . . . by arbitrary or artificial time limits, measured by hours or days or even weeks.'" (People v. Martinez, supra, 22 Cal.4th at p. 128.) Where, as here, the results of the blood test are certified by a licensed forensic alcohol supervisor, we presume that her official duty was regularly performed. (Evid. Code, § 664.) The presumption under Evidence Code section 664 shifted to appellant the burden of producing evidence at the DMV hearing that the tests were not properly performed or reported accurately. (Martinez, at p. 125.) California courts have applied the Evidence Code 664 presumption of regular performance of official duty in finding that proffered evidence satisfies the foundational requirements of the official records exception. (Martinez, at p. 125; Davenport v. Department of Motor Vehicles (1992) 6 Cal.App.4th 133, 141-143.)

Appellant offered no evidence to show that the laboratory was not licensed under title 17 of the California Code of Regulations or that it was not authorized to conduct the blood test in question. There is no basis for appellant's argument that there was a two-week interval between the date of the analysis and the date of the report. Both the trial court and the DMV could properly rely on the rebuttable presumption that an official duty was regularly performed as a basis for finding that the method of analysis and preparation of the report satisfied Evidence Code section 1280, subdivisions (b) and (c).

The report was properly received into evidence and supported the decision to suspend appellant's driving privileges.

Vehicle Code Section 21658

Appellant asserts there was no basis for the enforcement stop because he did not violate section 21658, governing unsafe lane changes.2 He argues that the statute does not prohibit "lane straddling" and there is no evidence to support the finding of the administrative hearing officer that he was "weaving" between the lanes. Appellant claims that the only evidence of "weaving" was the administrative hearing officer's finding to this effect.

We reject appellant's arguments for several reasons. He was not stopped for a suspected violation of section 21658, but because he appeared to be under the influence of alcohol. (§ 23152, subd. (a).) No allegation was made that he was arrested for making unsafe lane changes. Secondly, there was sufficient evidence to support the finding that he was "weaving." Page one of the administrative decision lists the evidentiary basis for its findings on the objective symptoms of intoxication. One item of evidence was the officer's sworn statement in which Alcantar stated that he observed appellant "weaving out of the No. 1 and No. 2 lanes . . . ."

Appellant claims that the DMV "did not address the ambiguity in, or interpretation of [section] 21658," and asks us to determine the type of conduct prohibited by the statute. We decline his invitation to engage in statutory construction. The application of section 21658 is wholly irrelevant to the facts before us. In light of our conclusions, we need not address appellant's remaining arguments.

Request for Judicial Notice

Appellant filed a request for judicial notice of 22 documents, most of which are either duplicative of the administrative record, or irrelevant. Among them was a letter from the DMV denying as untimely his request for a rehearing. We cannot consider appellant's arguments regarding this document because it is based upon events that occurred in the superior court after the administrative law judge issued its decision. His request for judicial notice is therefore denied.

The judgment is affirmed. Costs on appeal are awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.




James P. Cloninger, Judge

Superior Court County of Ventura

______________________________

Sullivan Taketa LLP, Mark F. Sullivan, Lascher & Lascher, Alfred Vargas, for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, Jacob A. Appelsmith, Senior Assistant Attorney General, Silvia M. Diaz, Supervising Deputy Attorney General, Gabrielle H. Brumbach, Deputy Attorney General, for Defendant and Respondent.



1 All further statutory references are to the Vehicle Code, unless otherwise stated.



2 Vehicle Code section 21658 provides, "Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: [¶] (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety."


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.

California DUI checkpoint this Friday in LA area

California DUI attorney

The Los Angeles County Sheriff's Department will conduct a California DUI drunk driving - driver's license checkpoint from 6 p.m. to 2 a.m. Fri., March 21 in Calabasas.

In an effort to reduce the number of persons killed and injured in alcohol-involved crashes, California DUI checkpoints are conducted to identify California DUI offenders and get them off the street, as well as educate the public on the dangers of California DUI - impaired driving, California DUI lawyers are told.

Traffic volume and weather permitting, all vehicles may be checked and drivers who are California DUI - under the influence of alcohol or drugs will be arrested for a California DUI and may wish to get a California DUI attorney. California DUI attorneys are informed the public is encouraged to help keep roadways safe by calling 911 if they see a suspected California DUI - impaired driver.

Funding for the California DUI operation is provided by a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration, California DUI attorneys understand.

Wednesday, March 19, 2008

Should cyclists' deaths result in a California DUI investigation of Officer?

California DUI lawyer news

Last week, a collision killed two cyclists, and sent a third to the hospital with serious injuries.

On March 9, a group of cyclists from was out training on Stevens Canyon Road in Santa Clara County, in the hills west of Cupertino. There were about a dozen cyclists, most of them members of the Third Pillar Racing Team; the cyclists were trailed by two team coaches in a van.

Three of the cyclists had pulled away, and were riding single file about 10-20 seconds ahead of the main group; one of the cyclists, Matt Peterson, 29, of San Francisco, was a member of Roaring Mouse Cycles Team. The other two cyclists were Kristy Gough, 30, a San Leandro resident and member of the Third Pillar Racing team and Christopher Knapp, 20, a German national and member of the FC-Rheinland-Pfalz Racing Club.

At about 10:25 A.M., a Santa Clara County Sheriff’s Deputy heading the opposite direction in his cruiser crossed the double yellow line and drove head-on into the three cyclists. Matt Peterson was killed instantly; Kristy Gough’s left leg was severed, and Christopher Knapp sustained a broken arm and leg. The three cyclists were five minutes away from their finish at Stevens Creek Reservoir when they were struck.

Arriving at the scene moments after, Third Pillar teammate Daniel Brasse, 41, of San Mateo described the chaotic scene as “screams of pain."

The sheriff’s deputy, 27 year old James Council, who eyewitnesses later reported had been speeding and driving erratically for several miles, was reported to be “walking around in a daze" following the crash, saying that he “must have fallen asleep."

As one cyclist was lying dead in the road, another lay dying, and a third was writhing in agony, the Deputy is reported to have paced the road, saying "my life is over" and "my
career is over."

It was left to Brasse to administer first aid to Kristy Gough. His heroic efforts repeatedly kept her from slipping away as they waited for a helicopter to airlift her to Stanford; with his help, she valiantly clung to life, only to pass away later, at Stanford.

As Brasse was working to save Kristy’s life — one look told him that Peterson was already gone — Council continued to pace in a daze, telling gathering bystanders “I must have fallen asleep," until another deputy steered him away from the gathering bystanders and advised him to stop talking.

Many people might have the same reaction in a tragic accident — but this wasn’t just anybody, this was a law enforcement officer, trained to handle emergencies. And the fact that he’s a law enforcement officer has raised the question of whether the investigation of this crash will be handled any differently than if the driver had not been a cop.

The crash involved one of their own, so the Sheriff’s Office turned the investigation of the crash over to the California Highway Patrol. And inexplicably, although the policy in any officer-involved crash is to test for blood alcohol level, the Highway Patrol did not test Deputy Council. Nevertheless, the Sheriff’s office stated that they are “within the letter of the policy," implying that a blood sample has been taken. But was there?

It was later confirmed that a blood sample had been taken, and submitted to the Highway Patrol. However, even though a blood sample was taken, it’s troubling that the investigating agency did not take the sample. It’s equally troubling that the deputy left the scene of the crash before accident investigators came to the scene.

Are we as a society really more concerned about doping racers than we are about impaired drivers? Does that really make any sense? And if the driver were not a deputy sheriff, would the Highway Patrol decline to conduct a sobriety test, or take a blood sample? If the driver were not a deputy sheriff, would the Highway Patrol give the driver the option to control the chain of custody of a blood sample?

The reporter covering this crash for the San Jose Mercury News asked those same questions, and surprisingly, the answer was yes, it is standard procedure not to test for alcohol in a fatal collision, unless DUI is suspected. But in a crash like this, where the driver being investigated left the scene before investigators arrived, how would anybody be able to determine whether DUI was suspected? And the fact that he left the scene raises another question — would you or I be allowed to leave the scene of a fatal collision before investigators arrived? Would you or I be assisted in leaving by law enforcement personnel? Again, the Mercury News reports that is also standard procedure — something I think most of us find difficult to believe.

These are important points, because following the accident, news surfaced that prior to his employment with the Sheriff’s Office, Council had been charged with two counts of drunk driving and “exhibition of speed," which he successfully pleaded down to an admission of guilt on the exhibition of speed charge. Although there is no indication that Deputy Council had been drinking prior to this collision, witnesses did report his speeding and erratic driving, and Deputy Council himself has no explanation, beyond “I must have fallen asleep," for how the collision occurred.

Could he have fallen asleep? Driving while drowsy is certainly an all-too-common phenomenon, right up there with distracted driving and DUI. All we know is that Deputy Council had worked a 12 ½-hour shift the day before, and had ten and a half hours off before the start of another 12 ½-hour shift at 6 a.m., 4 1/2 hours before the fatal crash.

In the days following the crash, the curtain was torn away from law enforcement’s “dirty little secret we don’t tell people about" — most officers work long, difficult shifts, with fatigue a constant companion. Departmental pressures force more cops to work longer hours; as one officer put it, “they don’t give a crap about how tired we get."

Following the crash, Sheriff Laurie Smith tearfully accepted departmental responsibility for the crash. But the damage had already been done. Will the Sheriff’s Department just pay out for its liability in this crash, and continue to put drowsy deputies behind the wheel? Or will this crash be the impetus for substantive road safety improvements, beginning with overhauling exhausting work schedules that lead to exhausted law enforcement officers?

California DUI St. Patrick's Day update

March 19, 2008

California DUI attorneys have their hands full now that St. Patrick's Day has passed, and the number of California DUI drunk driving arrests is still being tabulated. California DUI law enforcement officers in California were out in full force over the weekend, culminating in a high number of California DUI arrests before and during the day of celebrations on Monday, March 17.

California DUI lawyers specializing in San Diego California DUI law would like to offer assistance to all who need it.

A large number of alcohol checkpoints were spread throughout the Los Angeles, Orange County and San Diego areas, and many California DUI arrests were made. St. Patrick's Day is always a big day for California DUI / drunk driving arrests when California DUI law enforcement agencies impose harsh punishment for California DUI - drunk drivers. During last year's St. Patrick's Day weekend, 16 people were killed in California DUI collisions throughout the state and 304 were injured, California DUI lawyers understand. CHP California DUI officers arrested 1,250 motorists for California DUI violations in California last year.

California's DUI numbers have not yet been released regarding California DUI arrests over this year's St. Patrick's Day weekend, but many people have already been turning to California DUI attorneys. The best thing is to avoid a California DUI in the first place, but a skilled California DUI attorney is prepared to assist those who have already been arrested. With a knowledgeable California DUI lawyer, it is possible to make the most out of a bad circumstance.

Tuesday, March 18, 2008

California dui cops use their own cars to get California dui drivers on St. Patrick's day

California dui lawyers news

A special California dui unit of five Sacramento police officers patrolled the midtown and downtown bar scene Monday night to arrest St. Patrick's revelers who drank too much. The California dui effort is funded by a special state and federal grant to put officers in their cars on overtime.

California dui Police units had just fanned out in the midtown area when the first California dui arrest was made -- a seriously impaired driver with several prior California dui drunk driving arrests on his record.

Each California dui officer carried a special kit with a meter to measure a person's blood/alcohol level. Officers did several California dui tests, measuring coordination and mental concentration to determine just how impaired a California dui suspect might have been, California dui attorneys indicate.

Sgt. David Hargadon says he never gets tired of his efforts to get California dui or dangerous drivers off the road. "This is one of those chances where you can really save a life, so when we get done at the end of the night and make several arrests, we consider that saving multiple lives of people who could have been involved in accidents," California dui lawyers hear.

The California dui saturation patrols focused only on making California dui arrests, as opposed to DUI checkpoints, where education is also part of the California dui effort.

Bad California DUI - DMV weaving case

California dui lawyers case law news

Filed 5/10/07; certification order received from court 6/14/07 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JEFFREY J. ARBURN,
Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.
H030127
(Santa Clara County

Super. Ct. No. CV049615)


Following an administrative hearing, appellant Department of Motor Vehicles (the DMV) suspended respondent Jeffrey J. Arburn’s driving privileges for one year for driving a motor vehicle while under the influence of alcohol. (See Veh. Code, §§ 13353.2, 13353.3, subd. (b)(2).)1 The superior court granted Arburn’s subsequent petition and issued a writ of mandate directing the DMV to set aside the suspension. On appeal, the DMV contends the superior court erred in reversing Arburn’s suspension on the grounds that the arresting officer did not have reasonable suspicion to stop Arburn’s vehicle. We agree and reverse.


Background
On March 31, 2005, at approximately 5:00 p.m., San Jose Police Officer Lira was stopped at a stop sign eastbound on Forest at the Bascom Avenue intersection.2 Turning to his left, Officer Lira saw Arburn’s “vehicle weaving, S/B Bascom Ave. and almost hit the curb.” Arburn’s vehicle was “weaving in Lane #2,” and was “traveling at about the speed limit” when it “almost hit the west curb of Bascom Ave.” Officer Lira pulled behind the vehicle as it passed in front of him and the car “immediately turned into a parking lot of a business.” Officer Lira “initiated a vehicle stop for the weaving in the roadway.”

Upon contacting Arburn, Officer Lira observed several objective symptoms of intoxication: bloodshot/watery eyes, the odor of an alcoholic beverage, unsteady gait, slurred speech, and horizontal nystagmus. Arburn “needed to lean on [the] police car at times to keep steady” and was “very slow in [his] responses.” Officer Lira arrested Arburn for driving under the influence. On the way to the police station, Arburn began to fall asleep in the back of the police car. A blood alcohol test administered one hour later confirmed a blood alcohol content of 0.23 percent, well over the legal limit of 0.08 percent. (See § 23152.) As a result of the blood test results, the DMV suspended Arburn’s driver’s license.

Arburn requested an administrative hearing pursuant to section 13558 to determine whether the suspension of his license was justified. (§ 13558, subd. (a); see also Lake v. Reed (1997) 16 Cal.4th 448, 456 [describing right to hearing upon request and hearing process].) At the hearing, the administrative officer was tasked with determining: (a) whether the officer had reasonable cause to believe that Arburn had been driving a motor vehicle in violation of section 23152, (b) whether Arburn was lawfully arrested, and (c) whether Arburn was driving a motor vehicle with a blood alcohol content of 0.08 percent or greater. (§§ 13557, subd. (b)(2), 13558, subd. (c)(2).) Arburn challenged only the second statutory requirement—that he was not lawfully arrested—and contended that Officer Lira did not have sufficient cause to stop his vehicle. The hearing officer found all three statutory prerequisites met by a preponderance of the evidence and reinstated the suspension of Arburn’s driving privileges.

On September 26, 2005, Arburn petitioned the superior court for review of the administrative findings. (See § 13559 [providing for judicial review of license suspension].) The court issued an alternative writ temporarily staying the suspension to consider Arburn’s petition for writ of mandamus. At the hearing on the petition, the court found there was insufficient evidence to support the findings that the investigatory stop was justified. The court issued a writ of mandate directing the DMV to set aside its order suspending Arburn’s driving privileges. The DMV filed a timely appeal.

Discussion
In ruling on a driver’s petition for writ of mandamus, the trial court uses its independent judgment to determine “whether the weight of the evidence supported the administrative decision.” (Lake v. Reed, supra, 16 Cal.4th 448, 456-457, internal quotation marks omitted.) On appeal, the trial court’s factual findings must be upheld if supported by substantial evidence. (Id. at p. 457.) If the facts are undisputed and the issue presented is a question of law, as it is here, we conduct an independent review. (See Morgenstern v. Department of Motor Vehicles (2003) 111 Cal.App.4th 366, 372; Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1517.)

“Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity. Such reasonable suspicion requires specific, articulable facts which, together with objective and reasonable inferences, form a basis for suspecting that a particular person is engaged in criminal conduct.” (People v. White (2003) 107 Cal.App.4th 636, 641, internal citations and quotation marks omitted.) “Under this standard, an officer may stop and briefly detain a suspect for questioning for a limited investigation even if the circumstances fall short of probable cause to arrest.” (People v. Brierton (2005) 130 Cal.App.4th 499, 509 (Brierton).) The standard of reasonable suspicion is “less demanding than probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’” (People v. Souza (1994) 9 Cal.4th 224, 230-231.) At the same time, however, “no stop or detention is permissible when the circumstances are not reasonably ‘consistent with criminal activity’ and the investigation is therefore based on mere curiosity, rumor, or hunch.” (In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.), superseded on other grounds by Cal. Const., art. I, § 28.)

Arburn first contends that a single weave or swerve presents insufficient cause to suspect an intoxicated driver. He argues that “the record is ambiguous as to whether the weave and the almost hitting the curb constituted one action,” so this court must assume that it was. We are not persuaded by Arburn’s interpretation of the record. Officer Lira reported “weaving” in the lane and that Arburn almost hit the west curb. The reasonable inference is not that Arburn’s car swerved once, but that the vehicle was moving back and forth as it proceeded southbound and at one point narrowly missed the curb. More than one California court has found that “weaving” within a lane provides sufficient cause to conduct an investigatory stop. (See People v. Bracken (2000) 83 Cal.App.4th Supp. 1, 3-4 (Bracken) [weaving within lane for one-half mile]; People v. Perez (1985) 175 Cal.App.3d Supp. 8, 10-11 (Perez) [“‘pronounced weaving’ within the lane” for three-quarters of a mile; citing additional cases holding that weaving from one lane to another justifies an investigatory stop]; People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 14 [driving 20 miles per hour under speed limit and “weaving abruptly from one side of [the] lane to the other”]; see also People v. Russell (2000) 81 Cal.App.4th 96, 104 [concluding summarily that fact that defendant was “drifting around in his lane” justified an investigatory stop].)

While we recognize factual differences between this case and those cited above, we are not persuaded they are legally significant. The absence in the record of information regarding the officer’s particular expertise, for instance, is of minimal relevance. (Cf. Perez, supra, 175 Cal.App.3d Supp. at p. 11 [noting that a trained officer should be “permitted to make inferences and deductions that might well elude an untrained person” and that the detaining officer in the case before it had seven and one-half years of experience]; Bracken, supra, 83 Cal.App.4th Supp. at p. 4 [observing that detaining officer was an expert in driving under the influence cases].) Weaving within a lane is a widely-recognized characteristic of an intoxicated driver and recognizing a weaving driver is undoubtedly within the province of even the most junior officer. It is, we posit, even within the ability of most fellow drivers. The DMV’s failure to relate the particular training and experience of the arresting officer thus does not prevent us from crediting the officer’s reasoned inference that Arburn’s erratic driving was the result of criminal activity.

Likewise, the lack of evidence that Arburn was observed weaving over a “substantial” or “considerable” distance does not prevent a finding of reasonable suspicion. 3 (Cf. Perez, supra, 175 Cal.App.3d Supp. at p. 11 [weaving within lane for a “substantial distance” sufficient justification for investigatory stop]; Bracken, supra, 83 Cal.App.4th Supp. at p. 4 [following Perez; weaving within lane for a “considerable distance” supports reasonable suspicion].) “Weaving” for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop. In Perez, the issue presented was whether weaving over three-quarters of a mile (referred to as a “substantial distance”) alone could provide sufficient justification for an investigatory stop. (Perez, supra, 175 Cal.App.3d Supp. at p. 10.) The court found that it did, and had no cause to determine whether a shorter distance would be sufficient. (See id. at p. 11.)

Arburn also stresses that there is a bend in Bascom Avenue at Naglee Road, one block north of where Officer Lira was stopped when he observed Arburn “weaving” and “almost hit the west curb.” He claims that this accounts for any erratic driving on that block of road. We question Arburn’s presumption that a mere bend in the road would cause an attentive, sober driver to be “weaving” in the lane to the extent that he or she almost hits the curb. More importantly, “[t]he possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (Tony C., supra, 21 Cal.3d at p. 894.) “Even if the circumstances are as consistent with lawful activity as with criminal activity, the officer may still rightfully inquire into such circumstances in the proper discharge of the officer’s duties.” (Kodani v. Snyder (1999) 75 Cal.App.4th 471, 476, quoting Tony C., supra, 21 Cal.3d at p. 894, internal quotation marks omitted.)

The facts presented in this case support more than a mere “hunch” regarding criminal activity; Arburn’s weaving and near miss of the curb created an immediate concern for public safety and raised a reasonable suspicion that he was driving under the influence. Officer Lira had the right and the duty to determine exactly what was causing Arburn’s car to weave and whether he could continue driving without presenting a safety risk. (See Brierton, supra, 130 Cal.App.4th at p. 510 [“The officer’s duty is to resolve—through investigation—any ambiguity presented as to whether the activity observed is, in fact, legal or illegal”].) We conclude the superior court erred in reversing Arburn’s suspension on the grounds that his detention was unlawful.

Disposition
The judgment granting Arburn’s petition for writ of mandate is reversed.

_______________________________

Mihara, Acting P.J.

I CONCUR:

_____________________________

McAdams, J.





Duffy, J. dissenting.

The majority finds a sufficient record that San Jose Police Officer Lira had a reasonable suspicion to make the traffic stop that ultimately resulted in respondent Jeffrey J. Arburn’s arrest for driving under the influence. I respectfully disagree.

“[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must 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, superseded on other grounds by Cal. Const., art. I, § 28.) In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (U.S. v. Arvizu (2002) 534 U.S. 266, 273; see also People v. Souza (1994) 9 Cal.4th 224, 239.)

The totality of the circumstances here do not justify the detention. The sole undisputed evidence—namely, Officer Lira’s two written statements (one sworn and the other unsworn) presented at the Department of Motor Vehicles (DMV) hearing—was that on March 31, 2005, at 5:00 p.m., Officer Lira, while stopped at a stop sign on Forest Avenue (facing east) at the intersection of Bascom Avenue, observed (1) by looking to his left, that Arburn’s vehicle was proceeding south on Bascom; (2) that Arburn was traveling “at about the speed limit”; (3) that Arburn’s vehicle was “weaving in lane # 2, S/B from the controlled intersection at Bascom/Forest”; (4) that Arburn’s vehicle “almost hit the west curb of Bascom Ave.”; and (5) that Arburn “immediately turned into a parking lot of a business on the west side of Bascom Ave.” after passing him. Officer Lira then initiated the traffic stop that ultimately led to Arburn’s arrest.

But for the incomplete state of the record presented at the DMV hearing, I might well agree with my colleagues that the traffic stop was proper. However, the evidence supporting the detention omitted potentially important information, such as (1) the nature and extent of the officer’s training and experience investigating cases of driving under the influence; (2) the specifics underlying Officer Lira’s statement that he observed Arburn’s vehicle “weaving” (i.e., the number of times that the car weaved, and the amount of drift within the lane for each weave); and (3) the precise meaning of the officer’s observation that the vehicle “almost hit the west curb of Bascom Ave.” (i.e., how close the vehicle came to hitting the curb, and the lateral distance that the vehicle drifted from the center of the lane to the location near the curb). All that may be gleaned from the record is that respondent, while proceeding at the speed limit, drove poorly for a brief period of time and over a short distance. In sum, this showing does not demonstrate that Officer Lira had “a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (U.S. v. Arvizu, supra, 534 U.S. at p. 273.)

The majority cites four cases in which detentions were found to have been justified: People v. Bracken (2000) 83 Cal.App.4th Supp. 1 (Bracken); People v. Russell (2000) 81 Cal.App.4th 96 (Russell); People v. Perez (1985) 175 Cal.App.3d Supp. 8 (Perez); and People v. Perkins (1981) 126 Cal.App.3d Supp. 12 (Perkins). Although my colleagues acknowledge that there are factual differences between those cases and the circumstances here, they find them not to be legally significant. (Maj. opn. at p. 5.) I respectfully disagree with that conclusion.

In Perez, supra, 175 Cal.App.3d Supp. 8, the driver, at 2:15 in the morning, caught the attention of the officer because of his “ ‘pronounced weaving’ ” within the lane on an Interstate highway over a distance of approximately three-quarters of a mile. (Id. at p. 10.) Based upon this “pronounced weaving” that “continue[d] for a substantial distance,” the court in Perez held that the temporary detention of the defendant was lawful. (Id. at p. 11.) The facts here are quite different: the stop occurred late in the afternoon as a result of a momentary weave within the motorist’s lane on a city street.4

Similarly, in Bracken, supra, 83 Cal.App.4th Supp. at page 3, the basis for the detention was the citing officer’s observation that the defendant’s vehicle had weaved within its lane for approximately one-half mile. The court—citing Perez, supra—concluded that the officer’s observation of the defendant’s “vehicle weav[ing] within its lane for a considerable distance” provided justification for the traffic stop. (Bracken, supra, at p. 4.) Here, unlike Bracken, the detention was not founded upon Arburn’s vehicle having weaved within its lane for a distance even approaching one-half mile.

The Perez court noted that the motorist’s weaving “continue[d] for a substantial distance.” (Perez, supra, 175 Cal.App.3d Supp. at p. 11.) In Bracken, supra, 83 Cal.App.4th Supp. at page 4, the court noted that the weaving occurred “for a considerable distance.” I agree with the majority that “the lack of evidence that Arburn was observed weaving over a ‘substantial’ or ‘considerable’ distance does not prevent a finding of reasonable suspicion.” (Maj. opn. at pp. 5-6, fn. omitted.) (Indeed, the Perez court did not define “substantial,” and the Bracken court did not define “considerable.”) But by the same token, the momentary weaving within the motorist’s own lane—of itself, and even where the record discloses (ambiguously) that the driver “almost hit the . . . curb”—is unlikely to satisfy the reasonable suspicion requirement for a detention.5

The officer in Perez had extensive training and experience in dealing with motorists under the influence of drugs and alcohol. (Perez, supra, 175 Cal.App.3d Supp. at p. 11.) And the Bracken court noted that the officer had five and one-half years’ experience and had qualified as an expert in prior drunk driving cases. (Bracken, supra, 83 Cal.App.4th Supp. at p. 4.) Here, there was no evidence of the length of time Officer Lira had served with the highway patrol, what type of training he had received, or what experience he had, if any, in investigating cases of driving under the influence. While I agree with the majority that the existence of a record concerning the officer’s experience in addressing such cases is not determinative (Maj. opn., p. 5), I nonetheless view its absence here to be of some significance, particularly in light of the minimal information concerning the officer’s observations preceding the traffic stop.

In Russell, supra, 81 Cal.App.4th at page 98, the defendant contended that evidence found in a vehicle should have been suppressed because “it was improperly obtained as a result of an unreasonably prolonged detention.” The court only briefly addressed the defendant’s “suggest[ion]” (id. at p. 102) that the traffic stop was unjustified, concluding summarily—based upon the officer’s observation at 7:00 a.m. that the subject vehicle was traveling approximately 10 miles under the speed limit on an Interstate highway and was “repeatedly drift[ing] around within its lane and sometimes out of its lane” (id. at p. 99, fn. omitted)—that the erratic driving justified the traffic stop. (Id. at p. 102.) The repeated drifting of the slow-moving vehicle in Russell is plainly distinguishable from the momentary weave of the Arburn vehicle observed by Officer Lira.

And in Perkins, supra, 126 Cal.App.3d Supp. at page 14, the court held that the detention was justified, where the defendant drove his vehicle 20 miles under the speed limit and was “weaving abruptly from one side of his lane to the other.” The individual circumstances here are distinguishable from, and significantly less extreme than, the evidence of erratic driving found in Perkins.

The events that Officer Lira observed immediately before detaining Arburn were not sufficient for the officer to have had “specific and articulable facts causing him to suspect” that Arburn was involved in “some activity relating to crime.” (In re Tony C., supra, 21 Cal.3d at p. 893.) The cases cited by the majority do not support a contrary conclusion. As one court has aptly noted: “[I]f failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.” (U. S. v. Lyon (10th Cir. 1993) 7 F.3d 973, 976, overruled on another ground in U. S. v. Botero-Ospina (10th Cir. 1995) 71 F.3d 783, 786-787.) I therefore agree with the trial court that Arburn’s detention was constitutionally infirm and would affirm the judgment entered on the order granting of the petition for writ of mandate.



Duffy, J.





Filed 6/6/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JEFFREY J. ARBURN,
Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.
H030127
(Santa Clara County

Super. Ct. No. CV049615)


THE COURT:

The opinion which was filed on May 10, 2007, is certified for publication.

_______________________________

Mihara, Acting P.J.

_______________________________

McAdams, J.

_______________________________

Duffy, J.

Arburn v. Department of Motor Vehicles

H030127

The written opinion which was filed on May 10, 2007, has now been certified for publication pursuant to rule 8.1105(b) of the California Rules of Court, and it is therefore ordered that the opinion be published in the official reports.

Dated: __________________ _________________________________ Mihara, J., Acting P.J.





Trial Court: Santa Clara County Superior Court

Trial Judge: Honorable Kevin E. McKenney

Attorneys for Appellant: Bill Lockyer

Attorney General of the State of California

Miguel A. Neri

Fiel D. Tigno

Supervising Deputy Attorneys General

Bonnie Jaway Chen

Deputy Attorney General

Attorney for Respondent: Dennis Alan Lempert

Neah Huynh



1 All further statutory references are to the Vehicle Code unless otherwise noted.



2 The facts are taken from Officer Lira’s sworn statement and unsworn narrative in the investigation report. Both documents were properly admitted in the proceedings below. (See generally MacDonald v. Gutierrez (2004) 32 Cal.4th 150, 153.)



3 As an aside, we note that Arburn’s assertion that he was observed weaving for only 50 to 60 yards is not supported by admissible evidence. Arburn was not present at and did not testify at the administrative hearing. His attorney argued that Arburn only weaved for 50 to 60 yards at most, but that assertion is supported only by an exhibit drawn by the attorney that shows the Bascom/Forest intersection and surrounding area. Neither of Officer Lira’s reports indicate how far away Arburn’s vehicle was when he first noticed the erratic behavior.



4 Two cases that distinguished Perez in which the detentions were held unlawful—and in which the facts were much more similar to the case here than those in Perez—are instructive. In U.S. v. Colin (9th Cir. 2002) 314 F.3d 439, the court held the traffic stop unlawful because there was neither “ ‘pronounced weaving,’ ” nor a “weave for a ‘substantial distance’ ” (id. at p. 446); rather, the vehicle simply “touch[ed] the right fog line and the center yellow line each for 10 seconds, after legitimate lane changes.” (Ibid.) In State v. Binette (Tenn. 2000) 33 S.W.3d 215, 219, the defendant’s vehicle at least touched the yellow line on multiple occasions, but the court held that the detention was unjustified, finding no evidence of “pronounced weaving or hard swerving.”



5 The majority notes: “ ‘Weaving’ for even the length of a block may signify that something is amiss, and the distance of observation is not a controlling factor in evaluating a traffic stop.” (Maj. opn. at p. 6.) But the record does not support the majority’s implication that Officer Lira observed Arburn’s vehicle weaving for one block, or for a distance even approaching it.

Drive to MADD without a license? California DUI cops may bust

California DUI attorney news

A sting targeting unlicensed drivers - many because of a California DUI - in the South Bay turns up more than California DUI police expected, California DUI lawyers hear.

California DUI Officers from the Chula Vista Police Department's DUI unit conducted a zero-tolerance DUI sting on Tuesday at the Chula Vista courthouse.

The California DUI sting was held in conjunction with a discussion panel by Mothers Against Drunk Driving. Many California DUI offenders are required by the court to attend and California DUI police said often times, the California DUI offenders drive to court on a suspended license. Those without valid drivers licenses can have their California DUI cars impounded.

During the California DUI sting, two men were arrested on charges of carrying a concealed weapon, California DUI officers said.

The California DUI men, from Alabama, were licensed to carry guns in that state but not in California. Both are facing charges of carrying a concealed weapon. Another is facing a misdemeanor drug charges. Police said the smell of marijuana raised suspicion and resulted in a search. A California DUI officer said the guns were found in the men's waistbands.

A total of 27 cars were impounded and 37 citations were issued for various vehicle code violations, California DUI police said.

Funding for the California DUI program was provided by a grant from the California Office of Traffic Safety through the National Highway Transportation Safety Administration.

Sleepy driving as bad as a California DUI?

California DUI attorney info

With daylight savings here and people not getting enough sleep, driving can become extremely dangerous and even deadly.

Sleepy driving is just as dangerous as a California DUI - drunk driving charge.

According to ODOT, sleepiness slows reaction time, decreases awareness and impairs judgment.

Roselee Senger, regional traffic safety coordinator for ODOT's safety division gives some advice on what to do if you find yourself tired at the wheel.

"Often times when law enforcement think that they are going to pull someone over for a (California DUI) drunk driving stop, actually turns out that the person is over tired and they are just extending their driving time too long. What they need to do is stop. Maybe pull off the road for a few minutes, take a brief nap, consider spending the night."

Many misconceptions people have of how to stay awake, such as turning on the radio or rolling down the windows just don't work because as Senger says, people take little cat naps while driving and don't even know it.

A California DUI or sleepy driving crash can happen in one to four seconds, and somebody can die within two to three seconds from a run off the road crash. Also, rumble strips are on roads to alert drivers, but you should not be depending on them to keep you on the road.

Monday, March 17, 2008

Evidence to support DUI in California?

California DUI attorney news

Filed 3/17/08 P. v. Adams CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,
Plaintiff and Respondent,

v.

JEROME SIDNEY ADAMS,

Defendant and Appellant.
G038377
(Super. Ct. No. 06SF0668)

O P I N I O N


Appeal from a judgment of the Superior Court of Orange County, Everett W. Dickey, Retired Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Richard L. Schwartzberg, 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, James D. Dutton and Deana L. Bohenek, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

California Highway Patrol Officer Robert Hunter saw defendant Jerome Sidney Adams driving a car that was going 30 miles per hour over the speed limit. Hunter activated the patrol vehicle’s overhead lights, but defendant failed to pull over until Hunter turned on the siren. Although admitting his driver’s license had been suspended, defendant asked Hunter to give him a speeding ticket and let him leave. Defendant denied drinking, but Hunter noticed the smell of alcohol on him, that he had red, watery eyes, spoke with a slur, and stumbled when getting out of the car. Hunter had defendant perform several field sobriety tests, but he failed to do so properly. Defendant also faked attempts to perform breath tests. After his arrest, police officers found two half-empty beer cans under the front passenger seat. Based on this and other circumstantial evidence a jury found defendant guilty of driving while under the influence of alcohol, and the trial court sentenced him to two years in prison for a felony conviction of this crime.

Defendant now claims the evidence fails to support his conviction because “there was simply no testimony linking [his] being ‘under the influence’ of alcohol to impairment to drive, the element required to convict.” We find no error and affirm.

DISCUSSION

Although public service announcements frequently urged people not to drink and drive, it is not a crime in California to drink alcohol and drive a car. This activity becomes illegal only when, as a result of alcohol consumption, a person’s “‘physical or mental abilities are impaired to such a degree that he no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.’ [Citation.]” (People v. Weathington (1991) 231 Cal.App.3d 69, 78, 81; see also People v. Schoonover (1970) 5 Cal.App.3d 101, 105-106.)

Whether a person has been driving a vehicle while under the influence of alcohol presents “a question of fact to be determined by the [trier of fact] from all the proven circumstances of the case.” (People v. Markham (1957) 153 Cal.App.2d 260, 271; see also People v. Bui (2001) 86 Cal.App.4th 1187, 1194.) Furthermore, “whatever may be established by direct evidence in a criminal case may be established by circumstantial evidence. [Citations.]” (People v. Smith (1967) 253 Cal.App.2d 711, 715.) In a drunk driving prosecution, the evidence can include “[t]he detailed testimony of the observable physical and mental reactive state of the defendant . . . testified to by [a] police officer[] experienced in observing such details.” (Ibid.)

On appeal, “an appellate court . . . look[s] to whether there is substantial evidence in the record in support of the questioned element of the charged

offense . . . . We review the whole record in the light most favorable to the judgment and presume in support of the judgment every fact the trier could reasonably deduce from the evidence. [Citations.] ‘Substantial evidence’ is evidence which is reasonable, credible, and of solid value, and it is such that a reasonable trier of fact could find a defendant guilty beyond a reasonable doubt. [Citation.]” (People v. Gallardo (1994) 22 Cal.App.4th 489, 492.)

The circumstances supporting a finding that one drove while impaired by alcohol include the facts cited by Hunter; driving “at a speed in excess of” the speed limit (People v. Torres (1959) 167 Cal.App.2d 36, 39), “testimony . . . that [the defendant] exhibited . . . symptoms of intoxication,” (People v. Baxter (1958) 165 Cal.App.2d 648, 651), such as “the odor of beer on his breath, . . . slurred speech and unsteadiness[],” plus “poor performance on the field sobriety tests.” (People v. Rice (1988) 200 Cal.App.3d 647, 651; see also People v. Weathington, supra, 231 Cal.App.3d at p. 84 [“appellant’s speech was slurred” and “he had a swaying, staggering walk”].)

In addition to the evidence concerning the manner in which defendant operated the car and Hunter’s observations of his speech, statements, and physical behavior after the stop, the prosecution presented evidence of conscious of guilt on defendant’s part. “The inference of consciousness of guilt from willful falsehood or fabrication or suppression of evidence is one supported by common sense, which many jurors are likely to indulge even without an instruction.” (People v. Holloway (2004) 33 Cal.4th 96, 142.) First, the prosecution introduced evidence defendant lied when he denied drinking since the police found two partially consumed beer cans in a car occupied only by him and an obviously intoxicated passenger. (People v. Ryan (1981) 116 Cal.App.3d 168, 178-179.) Second, the prosecution presented evidence that defendant attempted to suppress evidence of his blood alcohol level by twice feigning to properly blow into a breath-alcohol testing device. (People v. Farman (2002) 28 Cal.4th 107, 164-165 [consciousness of guilt instruction supported by a defendant’s “threat to forcibly resist . . . court order for hair and blood samples”].) We conclude the evidence presented at trial supports the jury’s verdict.

DISPOSITION

The judgment is affirmed.

RYLAARSDAM, J.

WE CONCUR:

SILLS, P. J.

IKOLA, J.

Thomas Jane, star from the Punisher, arrested for California DUI

California DUI Lawyer news

Thomas Jane (39), aka the star from The Punisher, and husband of Patricia Arquette, was arrested for California DUI in Kern County, California. Jane was allegedly stopped for speeding in his 2008 Maserati around 2:30 a.m. He failed several California DUI sobriety tests, including a California DUI breathalyzer. Jane blew a .08, which is what Paris Hilton blew on the California DUI breathalyzer. His California DUI arraignment is set for April 9th. A California DUI attorney will handle that.

Celebrities can afford a driver when they’re drinking, unlike regular people. Instead, the female celebrities get a slap on the wrist, and the guys get some California DUI jail time. A California DUI lawyer will see in this case.

Man Hits His Home, Gets California DUI

California DUI man is behind bars today after suspicion of California DUI driving under the influence and running his vehicle into his home early this morning.

California DUI Officers responded to the 35-000 block of Felez in Rancho Mirage where they found Russell Hanson, 42, had driven a vehicle through his living room, dining room and into his kitchen after colliding with two other parked cars, according to a California DUI attorney.

The home sustained major damage to three rooms but the building was structurally sound, California DUI lawyers understand.

There were no reported California DUI injuries.

Sunday, March 16, 2008

California DUI St. Patrick's Day news

California DUI attorney news

As part of the California Highway Patrol's (CHP) continuing efforts to curb California DUI - drunk driving, extra officers will be on the lookout for California DUI - impaired drivers this weekend. Additional California DUI patrols with California DUI officers working overtime are funded by grants from the state Office of Traffic Safety and The National Highway Traffic Safety Administration.

The message is very simple, party responsibly; plan to have a designated driver if you expect to be consuming alcohol as part of your celebrating.

"All we are asking is for people to do the responsible thing; plan ahead," said CHP Commissioner Joe Farrow. "Have someone who won't be drinking do the driving, take public transportation or make plans to spend the night where you are celebrating."

Last year during St. Patrick's Day weekend 16 people were killed and 304 injured in DUI involved collisions statewide. A total of 1,250 drivers were arrested for California DUI by the CHP.

"This is about saving lives, not about how many people we can arrest," said Commissioner Farrow. "Do your part. Don't drink and drive."

California DUI lawyers agree to help.

Wednesday, March 12, 2008

California DUI checkpoint this weekend

California DUI lawyer news - checkpoint status

CALIFORNIA DRUNK DRIVING NEWS - The Pasadena California DUI Police Department will conduct a California DUI / dRUNK dRIVING Enforcement Check Point on Friday, March 14, 2008.

The hours of California DUI ROADBLOCK operation will be conducted between the hours of 7:00 pm – 3:00 am. “The St. Patrick’s Day celebrations that typically occur around this time include a lot of drinking,” says Acting Chief of Police Christopher Vicino. “It is our intent to keep drunk drivers off the roads and this program is a proven and effective tool for achieving the Pasadena Police Department’s goal of removing impaired drivers from our streets.”

The potential for an impaired driver to become involved in a traffic collision is greater due to a driver’s slowed response or poor decision making while under the influence of alcohol or drugs. These types of California DUI enforcement programs also provides the police department an opportunity to educate the driving public in regards to safer driving habits and the consequences of California DUI - drinking and driving.

Funding for this California DUI program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

California DUI attorneys want to make sure the cops do this properly and in a constitutional manner.

Suspected Orange County DUI Crash

California DUI attorney news

3 Injured in Suspected Orange County DUI Crash on 22 Freeway

California DUI update: Two women suffered injuries when their car broke down on the 22 Freeway and they were struck by a car driven by a California DUI drunk driver.

According to a California DUI news report in The Orange County Register, Reyna Poblanu, 47, of Anaheim was driving a 1995 Mercedes Benz, which stopped in the two right lanes near the City Drive exit. Her passenger, 34-year-old Feliciana Adalpa of Anaheim, was getting out the car when a 2007 Toyota, driven by Dong Kim, struck her. Adalpa suffered major injuries while Poblanu suffered moderate injuries, the Register reported. Kim, 45, of Fullerton was arrested on suspicion of California DUI - driving under the influence. California DUI lawyers take note.

16 years max. prison for California DUI death

California DUI criminal defense attorney news

Nearly a month after her husband's death in a California DUI drunken driving collision in Prunedale, Kara Haney has doubts that justice will be served.

Rosario Arreola Lopez of Salinas, 22, was arrested early Feb. 16 on suspicion of California DUI driving under the influence of alcohol. Her 2006 Toyota Tundra had just rammed into the back of a 1985 Toyota pick-up truck on northbound Highway 101 near Ralph Lane, just north of Salinas.

The crash killed the pick-up's driver - Kara's 26-year-old husband, Adam Lee Haney - and moderately injured his passenger.

California Highway Patrol Officer Jim Covello said investigators believe Lopez was speeding at up to 100 mph when she approached Haney's truck, which was traveling about 55 mph in the left lane. The force of the impact pushed his truck forward 600 yards and caused it to roll over.

Lopez, held on $220,000 bail at Monterey County Jail, will appear in court today on felony charges of driving while intoxicated and causing injury or death as well as vehicular manslaughter. She faces up to 16 years in prison.

Kara Haney said she fears Lopez will get off easy, in part because Lopez doesn't have a previous record of California DUI driving under the influence.

Tuesday, March 11, 2008

Zero Tolerance for St. Patrick's Day California DUI cases?

California DUI criminal defense lawyer news

California DUI - driving drunk is never a good idea, but engaging in the activity during the St. Patrick's Day weekend may cost drivers a pot of gold.

California DUI Police will field "saturation" California DUI drunk driving patrols on Saturday, Sunday and Monday nights with at least four extra patrol cars on the streets, California DUI attorneys just heard.

California DUI Officers working the special shifts also will write speeding tickets and enforce all other traffic laws with a "zero tolerance" California DUI policy.

"DUI is a big factor in many traffic collisions throughout the region," California DUI lawyers heard authorities say. "We have had several serious incidents recently. We are lucky that they did not result in fatalities." The California DUI enforcement operations are funded by a special grant from the state Office of Traffic Safety.

Farrah Fawcett's son facing California DUI charges

California DUI lawyer news

California DUI Attorney authorities hear Redmond James O'Neal, the son of Farrah Fawcett and Ryan O'Neal, will face drug charges stemming from a January California DUI arrest in Malibu.

Los Angeles County district attorney's California DUI unit announced the 23-year-old O'Neal is scheduled to be arraigned on March 26 on charges that include possession of heroin and methamphetamine and California DUI - driving under the influence.

No California DUI attorney has been officially announced, yet it is rumored she is friends with those who are familiar with the famed California DUI lawyer Donald Bartell.

Teacher killed in California DUI crash

California DUI criminal defense lawyer news

A man has been arrested on suspicion of California DUI - driving under the influence following a head-on crash that killed a Sacramento art teacher, California DUI police said.

Robert Basinger, 22, faces charges of gross vehicular manslaughter while intoxicated and felony California DUI .

Teacher Mary Sekul, 59, died in the California DUI crash, which occurred shortly after 10 p.m. Monday at the intersection of Folsom Boulevard and 47th Street, California DUI attorneys are told.

Sekul taught at Del Paso Manor Elementary School in Sacramento and Cameron Ranch Elementary School in Carmichael.

California DUI Investigators said they believe a Mazda 626, driven by the Sekul, was eastbound on Folsom Boulevard and was turning left on to 47th Street. A Jeep Cherokee driven by Basinger was westbound on Folsom Boulevard. The two vehicles collided head-on, California DUI lawyers believe.

Sekul was pronounced dead at the California DUI crash scene. Basinger was taken to a local hospital for treatment of moderate injuries. He was later booked into jail for California DUI.

Broken down car hit by California DUI suspect

California DUI Attorney news

Two women were injured Monday night when their car broke down on the 22 freeway and was struck by a car driven by a suspected California DUI drunken driver, according to California DUI Attorneys.

One of the women, who was getting out of the disabled car as the California DUI crash happened, suffered major injuries, said California DUI lawyers.

Reyna Poblanu, a 47-year-old resident of Anaheim, was driving a 1995 Mercedes-Benz on the eastbound 22 when the car came to a stop in the two right lanes before the City Drive exit.

Her passenger, Feliciana Aldapa, a 34-year-old woman from Anaheim, was getting out of the car at about 10:47 p.m. when a 2007 Toyota hit the Mercedes.

Aldapa suffered major injuries in the California DUI crash. Poblanu suffered moderate injuries.

The driver of the Toyota, Dong Kim, a 45-year-old resident of Fullerton, and the two women were transported to UCI Medical Center.

Kim was arrested on suspicion of California DUI.

It is unknown why the car became disabled on the freeway but California DUI Attorneys will be looking into it.

USA incl. California Accident & DUI stats per NHTSA , insurance

California DUI attorney's NHTSA related statistics

Auto Crashes

MARCH 2008

The cost and crashworthiness of vehicles as well as drivers’ safety habits affect the cost of auto insurance. In 2006, 42,642 people died in motor vehicle crashes and an additional 2,575,000 people were injured, according to the U.S. Department of Transportation. Out of concern for public safety and to help reduce the cost of crashes, insurers support safe driving initiatives. In 1969 the insurance industry created the Insurance Institute for Highway Safety, an organization best known for its vehicle crashworthiness testing program. The industry has also fought to get auto manufacturers to make air bags standard equipment in vehicles and is a major supporter of antidrunk driving and seat-belt usage campaigns. Drivers themselves have also contributed to the reduction in crash-related fatalities by demanding safer vehicles.


KEY STATISTICS


Motor vehicle crashes are the leading cause of death for people ages two to 34.


A motor vehicle death occurs on average every 12 minutes and an injury every 12 seconds. About 117 people died each day in motor vehicle crashes in 2006.


Since the first documented crash death in 1899, more than 30 million people worldwide have died in traffic crashes.



FATALITIES AND INJURIES


Overall: The U.S. Department of Transportation's Fatal Analysis Reporting System in the National Highway Traffic Safety Administration (NHTSA, http://www.nhtsa.dot.gov ) division reports that 42,642 people died in motor vehicle crashes in 2006, down 2.0 percent from 43,510 in 2005. 2006 motor vehicle fatalities were at the lowest level in five years. While deaths among passenger vehicle occupants and nonoccupants fell in 2006, motorcycle riders suffered a 5.1 percent increase. This was the ninth consecutive annual increase in motorcycle rider deaths.

In 2006, the number of people injured in motor vehicle crashes fell 4.6 percent from 2,699,000 in 2005 to 2,575,000 in 2006.


By Vehicle Miles Traveled: The fatality rate—measured as deaths per 100 million vehicle miles traveled—was 1.41 in 2006, down from 1.46 in 2005.


By Crash Type: In 2006, there were 5,973,588 police-reported motor vehicle traffic crashes, down 3.0 percent from 6,159,252 in 2005. Of total crashes, 1,746,000 caused injuries and 4,189,000 caused property damage only. NHTSA estimates 10 million or more crashes go unreported every year.


Work-Related: In 2006 crashes involving vehicles on public roadways were the leading cause of work-related fatalities, according to the U.S. Bureau of Labor Statistics, accounting for 23 percent of all fatal work injuries.


By Age Group: In 2006, older people (65 and older) made up 14 percent of all traffic fatalities, 14 percent of vehicle occupant fatalities and 19 percent of pedestrian fatalities, in large part because they are frailer and more likely to die from their injuries than younger people. (See Older Drivers paper.) In 2005 (latest data available) there were 29 million older licensed drivers, up from 17 percent in 1995. The total number of drivers rose only 14 percent from 1995 to 2005.

In 2006 drivers between the ages of 15 and 20 accounted for 12.9 percent of all drivers in fatal crashes and for 16 percent of all drivers in police-reported crashes. In 2005 (latest available data) drivers in this age group accounted for 6.3 percent of all licensed drivers. To reduce high accident rates among young drivers, states are increasingly adopting graduated driver license programs, which allow young drivers to improve their skills and driving habits. (See Teen Driving paper).


By Driver Behavior

Speeding: In 2006, 13,543 lives were lost due to speed-related accidents. Speeding was a contributing factor in 31 percent of all fatal crashes. In 2006, 39 percent of 15- to 20-year-old male drivers who were involved in fatal crashes were speeding at the time of the crash. NHTSA says that speed-related crashes cost Americans $40.4 billion each year. A crash is considered speed related when the driver is charged with a speed-related offense or a law enforcement officer indicates that exceeding the posted speed limit, driving too fast for conditions or racing was a contributing factor.

Drunk Driving: There is an alcohol-related traffic fatality every 29 minutes. In 2006, 17,602 people died in alcohol-related crashes, up slightly from 17,590 in 2005 and was the highest level since 1996. Alcohol was involved in 41 percent of all crash fatalities in 2006. (See Drunk Driving paper.) Alcohol-related crashes are defined as those where someone involved, either a driver or a nonoccupant such as a pedestrian or bicyclist, had a traceable amount of alcohol in his or her blood.

Drunk Driving and Speeding: In 2006, 41 percent of intoxicated drivers (with a blood-alcohol content at or above 0.08, the definition of drunkenness) involved in fatal crashes were speeding, compared with 15 percent of sober drivers involved in fatal crashes.

Red Light Running: The Insurance Institute for Highway Safety (IIHS) says that more than 900 people a year die and nearly 2,000 are injured as a result of vehicles running red lights. About half of those deaths are pedestrians and occupants of other vehicles who are hit by red light runners.

Fatigue: NHTSA statistics show that at least 100,000 crashes and 1,500 deaths each year are the result of drivers falling asleep at the wheel. A 2002 poll conducted by the National Sleep Foundation found that 100 million drivers, close to half of American adult drivers, drive while drowsy and nearly two out of ten admitted to having fallen asleep at the wheel. New Jersey passed a law in 2003 that equates falling asleep at the wheel with reckless driving, and if a driver falls asleep and kills someone in a crash, he or she can be charged with vehicular homicide and serve up to ten years in jail and pay fines. Although at least four states have considered similar legislation, New Jersey is the only state with such a law on the books.


Distracted Driving: A study sponsored by Nationwide Insurance, which surveyed 1,200 drivers between the ages of 18 and 60, found that 81 percent of drivers “multitasked” (engaged in distracting behaviors while driving) at least sometimes. One in eight said he or she changed radio stations or CDs. The same proportion acknowledged drinking a beverage. Almost three-quarters talked on a cell phone, and 68 percent ate a snack. Twenty-three percent acknowledged they experienced road rage and 4 percent said they have driven while intoxicated.


The January 2007 study also found that the youngest drivers, age 18 to 27, were the most likely to always multitask while driving—35 percent. Thirty percent of drivers age 28 to 44 always multitasked and 21 percent of the 45-to 60-year-olds always multitasked.


Some form of driver inattention was involved in almost 80 percent of crashes and 65 percent of near-crashes within three seconds of the event, according to an April 2006 study conducted by the Virginia Tech Transportation Institute and the National Highway Traffic Safety Administration (NHTSA). The 100-Car Naturalistic Driving Study broke new ground—earlier research found that driver inattention was responsible for 25 to 30 percent of crashes. The 2006 study found that the most common distraction was the use of cell phones, followed by drowsiness. However, cell phone use was far less likely to be the cause of a crash or near-miss than other distractions. For example, while reaching for a moving object such as a falling cup increased the risk of a crash or near-crash by nine times, talking or listening on a hand-held cell phone only increased the risk by 1.3 times. The study tracked the behavior of the 241 drivers of 100 vehicles for more than one year. The drivers were involved in 82 crashes, 761 near-crashes and 8,295 critical incidents. (See also Cell Phones and Driving.)


Cell Phone Use: In July 2007, the National Highway Traffic Safety Administration and the National Center for Statistics and Analysis released the results of their National Occupant Protection Use Survey (NOPUS), which found that in 2006 5 percent of drivers used hand-held cell phones, down from 6 percent in 2005, the first decline since the survey began tracking hand-held cell phone use in 2000. The decline in use occurred in a number of driver categories, including female drivers (down from 8 to 6 percent), drivers in the Midwest (down from 8 to 4 percent), drivers age 25 to 69 (down from 6 to 4 percent) and drivers of passenger cars (down from 6 to 4 percent) to name but a few. NOPUS is a probability-based observational survey. Data on driver cell-phone use were collected at random stop signs or stoplights only while vehicles were stopped and only during daylight hours. (See also Cell Phones and Driving.)


Many studies have shown that using hand-held cell phones while driving can constitute a hazardous distraction. However, the theory that hands-free sets are safer has been challenged by the findings of several studies. A study from researchers at the University of Utah, published in the summer 2006 issue of Human Factors concludes that talking on a cell phone while driving is as dangerous as driving drunk, even if the phone is a hands-free model. An earlier study by researchers at the university found that motorists who talked on hands-free cell phones were 18 percent slower in braking and took 17 percent longer to regain the speed they lost when they braked.


Deer Collisions: The Insurance Institute for Highway Safety estimates that there are more than 1.5 million deer-vehicle collisions each year, resulting in 150 occupant deaths, tens of thousands of injuries and over $1 billion in vehicle damage. The average claim for collision damage is about $3,000, with costs varying depending on the type of vehicle and severity of damage; claims involving medical payments can add thousands of dollars, according to the Insurance Information Institute. Some states experience more deer collisions than others. According to a study of annual claim statistics, the states with the highest number of accidents involving deer from 2005 to 2006 were: Pennsylvania, Michigan, Illinois, Ohio, Georgia, Virginia, Minnesota, Texas, Indiana and South Carolina. The deer migration and mating season generally runs from October through December, and causes a dramatic increase in the movement of the deer population. As a result, more deer-vehicle collisions occur during this period than at any other time of year.


Hit and Run Crashes: According to the National Highway Traffic Safety Administration (NHTSA) there were 1,106 fatal hit and run crashes in 2005, that is, crashes where the driver left the scene after a collision with a person not in a motor vehicle. In this analysis NHTSA does not include hit and run collisions between vehicles only. Hit and run crashes in 2005 were up 20.6 percent from 917 in 2000. In 2005, 2,610 people died in these crashes, a 14.4 percent increase from 2,281 in 2000. There were 1,231 vehicles involved in these crashes I n 2006, up 20.0 percent from 1,026 in 2000.


By Vehicle

SUVs: The number of people killed in SUV rollover crashes fell 0.2 percent from 2,895 in 2005 to 2,888 in 2006, according to NHTSA. In 2006 SUVs had the highest occupant fatality rate of any vehicle type in rollover crashes at 7.77 per 100,000 registered vehicles. This compares with 6.98 for pickup trucks, 3.10 for vans and 3.18 for passenger cars.

Motorcycles: NHTSA says that in 2006, 4,810 motorcyclists died in crashes, marking the ninth consecutive year of increasing motorcycle deaths and a 5.1 percent increase from 4,576 in 2005. 2006 fatalities were the highest since 1981. In addition, motorcycle rider fatalities increased to 11.3 percent of all motor vehicle crash fatalities, compared with 5.0 percent in 1997. (See Motorcycle Crashes paper.) Between 1997 and 2006, motorcycle fatalities rose 127 percent. In 2005 (latest data available for registration statistics) motorcycles accounted for about 3 percent of all registered motor vehicles and 0.4 percent of vehicle miles traveled. However, per vehicle mile traveled in 2005, motorcyclists were about 37 times more likely than passenger car occupants to die in a crash and eight times more likely to be injured.

Large Trucks: According to NHTSA, 4,995 people died in crashes involving large trucks in 2006, compared with 5,240 in 2005, a decrease of 4.7 percent. Although large trucks amounted to 3 percent of all registered vehicles in 2005 (latest year available for registration statistics), they accounted for 8 percent of all vehicles involved in fatal crashes in 2006. One out of nine traffic fatalities in 2006 resulted from a collision involving a large truck.



SAFETY


Crashworthiness: Crashworthiness, a term which refers to how well vehicles withstand different types of crashes, varies by category of vehicle as well as by make, model and year. Two groups conduct tests to determine crashworthiness—the Insurance Institute for Highway Safety (IIHS), which is an insurance-funded organization, and the U.S. Department of Transportation’s National Highway Traffic Safety Administration (NHTSA). The IIHS conducts four types of tests on a large variety of vehicles: Low speed crash tests, rear crash protection tests, side impact crash tests and 40-mph frontal crash offset tests. NHTSA conducts two tests that are similar to the IIHS’s frontal crash and side crash tests. NHTSA also publishes rollover safety ratings by make and model year, and tire ratings by brand. The IIHS vehicle ratings can be found on the Internet at http://www.highwaysafety.org; NHTSA test results can be found at http://www.safercar.gov


Bumpers: In March 2007, the Insurance Institute for Highway Safety (IIHS) released the results of research using new bumper tests. Four new tests assess over and underride, which occur when vehicle bumpers slide over and under each other because they don’t line up. These collisions produce some of the most costly low-speed crash damage. The new tests can better match the damage that occurs in real-world collisions. The results show that of 17 midsize cars, only three withstood the four tests with $1,500 or less in repair costs in each test. Some vehicles had over $4,500 in damage in only one of the tests, and two cars sustained over $9,000 in total damage. In addition, bumpers kept damage away from headlights, hoods and other expensive parts in only two of the 68 tests the IIHS conducted.

The IIHS released bumper test results of 11 luxury cars in August 2007. The worst performer sustained almost $14,000 in damage in the four tests, while the best sustained about $5,000. Only three cars experienced less than $6,000 in damage, while four would cost more than $10,000 to fix after the crashes. The IIHS says that besides the problems of bumper mismatch on these cars, the bars under the bumper covers which are supposed to absorb crash energy are not effective. Another major factor driving the high repair costs is the price of replacement parts. The IIHS says that this is especially true for luxury cars, which are expensive not only to purchase but also to repair.


Lives Saved by Safety Devices

Airbags: Airbags are designed to inflate in moderate to severe frontal crashes. NHTSA estimates that by 2006, more than 177 million passenger vehicles were equipped with airbags, including 162 million with dual airbags. NHTSA says that airbags saved 2,796 lives in 2006. From 1987 to 2006, 22,466 lives were saved by the devices. Airbags, combined with seat belts, are the most effective safety protection available for passenger vehicles. Seat belts alone reduce the risk of fatal injury to front-seat passenger car occupants by 45 percent. The fatality-reducing effectiveness for air bags is 14 percent when no seat belt is used and 11 percent when a seat belt is used in conjunction with air bags. Side airbags that protect the head, chest and abdomen reduce driver deaths by an estimated 37 percent, according to the IIHS. Side airbags without head protection, which protect only the chest and abdomen, are less effective but still reduce deaths by about 26 percent, according to a 2006 study. Head-protecting side airbags reduce driver deaths when cars are struck by SUVs and light trucks, probably because when cars are struck in the side by these higher riding vehicles, heads are more vulnerable.

Seat Belts: Among passenger vehicle occupants over the age of four, seat belts saved an estimated 15,383 lives in 2006. Seat belts are effective in protecting occupants from ejection, one of the most injurious results of a crash, according to NHTSA. In fatal crashes in 2006, 75 percent of passenger vehicle occupants who were totally ejected from the vehicle were killed. Only 1 percent of occupants reported to have been using restraints were total ejected, compared with 31 percent of unrestrained occupants. Seat belts reduce the risk of fatal injury to front-seat passenger car occupants by 45 percent and the risk of moderate-to-critical injury by 50 percent. For light truck occupants, safety belts reduce the risk of fatal injury by 60 percent and moderate-to-critical injury by 65 percent.

Child Safety Seats: NHTSA says that in 2006 the lives of an estimated 425 children under the age of five were saved by restraints—392 of them by child safety seats alone. If all children under the age of five had been placed in child safety seats in 2006, another 196 lives could have been saved. From 1975 through 2006, NHTSA estimates that 8,325 lives were saved by restraints (child safety seats or adult seat-belts).

Motorcycle Helmets: Helmets saved 1,648 lives in 2006, according to NHTSA, and could have saved an additional 752 if all motorcyclists had worn helmets. Helmets are estimated to be 37 percent effective in preventing fatal injuries to motorcyclists.

Electronic Stability Control: The National Highway Traffic Safety Administration will require all vehicles for the model year 2012 to have electronic stability control (ESC). ESC was designed to help prevent rollovers and other types of crashes by controlling brakes and engine power. The U.S. Department of Transportation estimates that ESC would save 10,000 lives each year if all vehicles had the system. By 2009, 55 percent of all vehicles must have ESC.



SAFETY ISSUES


Insurer Safety Discounts: Insurers offer discounts to encourage drivers to focus on safety. The majority of states mandate discounts for drivers who have completed approved driver improvement courses, mostly for motorists over the age of 55. Three states require insurers to give discounts, in some cases specifying the actual percentage, for cars equipped with air bags (although they are standard equipment on most cars now) and three require discounts for automatic seat belts. Florida and New York require insurers to give discounts for cars with antilock brakes. Some insurers have nationwide discounts in place. State Farm, for example, offers as much as a 15 percent discount for drivers under age 25 who complete a safe driving program.


At least two insurers offer insurance discounts to owners of “hybrid” cars, which combine a battery-powered engine with a traditional gas engine. One offers a 10 percent discount on all auto insurance coverages, except uninsured motorist and personal injury protection (PIP), basing the discount on the driver rather than on a safety device or safety training. According to the insurer, hybrid owners are less risky drivers than the average driver, based on demographics, driving records, credit data, marital status and driving patterns. The other insurer offers a 10 percent discount (5 percent in California) on all major coverages, including uninsured motorists and PIP.


Seat-Belt Use Laws: Seat-belt use laws are on the books in every state except New Hampshire. However, only 26 states and the District of Columbia have primary enforcement laws. Primary seat-belt laws allow law enforcement officers to stop a car for noncompliance with seat-belt laws (See chart in following section). In the other states, which have secondary enforcement laws, drivers may only be stopped and they and their passengers ticketed, if they have violated other traffic safety laws. In New Hampshire, legislation requiring seat belt use was rejected by the Senate in May 2007, leaving it the only state in the nation that does not have a law requiring adults to wear seat belts.

NHSTA says that states with primary enforcement laws have lower fatality rates. The agency compared the percentage of unrestrained passenger vehicle occupant fatalities and fatality rates between states that have primary safety- belt use laws and states that do not have them for 2000–2004. Besides having a smaller percentage of passenger vehicle occupant fatalities that were unrestrained, the fatality rates in primary enforcement states were much lower than for all other states. In primary enforcement states the passenger vehicle occupant fatality rates were 1.03 per 100 million vehicle miles traveled and 10.69 per 100,000 population. This compares to 1.21 and 13.13 (respectively) for all other states.


Seat-belt use in the United States stood at 81 percent in June 2006, compared with 82 percent in 2005, according to NHTSA. New incentives to increase seat-belt use were included in the Safe, Accountable, Flexible, Efficient Transportation Act of 2005. The Act makes $498 million available for distribution over four years to states that enact primary seat-belt laws or reach 85 percent belt use for two years.

Labels:

California DUI & Prom Night / Graduation Day film

CAlifornia DUI lawyer news

Prom night and graduation night can be some of the most memorable events of your teenage years — just make sure they are memorable in a good way.

Unfortunately for the students in the new film "Graduation Day," the night is something they would rather forget.

Sponsored by the Troy and Alana Pack Foundation, the short film looks at teenage drinking and driving with a modern perspective. The people are actors, but the film is made to seem more like reality TV than a scripted drama.

And for extra credibility, former CBS Evening News anchor Dan Rather narrates and interviews characters in the film to grab the attention of both students and educators.

Mr. Pack and his wife, Carmen, created the foundation after their children, Troy, 10, and Alana, 7, were killed by a drunk driver in October 2003. They have been working with University of Southern California graduate film school alumni on the video for more than a year.

There are plans to send the film free-of-charge to 15,000 public and 5,000 private high schools throughout the country. Pack said he hopes to get copies to local schools prior to prom and graduation this school year.

The free film will premiere at 7 p.m. this Thursday at the East Bay Fellowship auditorium, 2615 Camino Tassajara, Danville.

Special DUI license plate bill defeated

California DUI attorney news

Repeat drunk drivers on the east coast won't have to worry about what's been labeled as the new "Scarlett Letter," DUI.

A panel of house members has rejected a proposal to require special license plates for repeat DUI - drunk drivers.

It would have meant Maryland people convicted of three or more impaired driving charges would get special $500 license tags that included the letters DUI. Offenders would have been required to use the special tags for five years.

Monday, March 10, 2008

Use free shuttle to avoid a California DUI

California DUI attorney news

A new free shuttle to and from participating bars began, and a city is already seeing fewer California DUI arrests than normal.

Benicia California DUI police said it is common to have at least two California DUI drunk driver's arrested each Thursday, Friday and Saturday night, but only one person was arrested for California DUI in between Thursday evening and Sunday afternoon, according to California DUI attorney records.

The new shuttle, called the Benicia Bar-Hopper, provides free rides to and from three bars; the Benicia Yacht Club, the Bottom of the Fifth and O'Leary's Pub.

The participating bar owners are paying for the shuttle out of their own pockets since taxi service can be unreliable in Benicia.

Only good responses have been heard on both Friday and Saturday night.

Bar owners purchase cab ride vouchers for their customers, in case they have too much to drink and are not able to drive home.

The shuttle had a slow start earlier in the week, it seemed word about the new shuttle is getting around.

At least 20 - 40 people took advantage of the service this weekend at O'Leary's alone.

The shuttle will pick up passengers anywhere in Benicia city limits and take them to and from one of the three participating bars at no charge. To avoid a California DUI, riders may call in advance to request a pick up at a specific time at 720-6140.

Sunday, March 9, 2008

California DUI lawyer arrest - weekend news

California DUI lawyer arrest - weekend news

13 held on DUI suspicion

A crackdown on drunk drivers Friday night in central Fresno resulted in the arrests of 13 California DUI suspects, California DUI lawyers reported Saturday.

Officers also had 35 vehicles towed away in connection with the DUI arrests and for driver's license violations, California DUI attorneys say.

Saturday, March 8, 2008

.20 DUI Death-causer wants sympathy but gets 15 years to Life in California

California DUI lawyer news

Wayne Olson lost his wife to a DUI driver and sat with tears brimming in his eyes in the courtroom gallery as he watched a California DUI judge sentence Jonathan Paul Michael Barber, 28, to 15 years to life in prison on his second-degree murder conviction.

Before Superior Court Judge Frank F. Fasel handed down the maximum possible California DUI sentence, he castigated Barber for ignoring a series of warnings from judges in earlier cases about his drinking and drug usage.

"Unfortunately, it's too late now," Fasel told Barber. "It took a second-degree murder conviction for you to finally get it."

Barber was found guilty last year of second-degree murder and hit-and-run for the Aug. 22, 2003, high-speed crash that killed Carla Denise Olson, a 43-year-old mother of three who had been a sociology professor at Golden West College.

Carla Olson was driving her Harley-Davidson motorcycle on an evening ride with her husband when she was rammed from behind on Irvine Boulevard near the old El Toro Marine Base.

Barber, who had a history of drug and alcohol - California DUI offenses and was driving on a suspended license, fled from the scene after the 100 mph crash. He was quickly apprehended. California DUI Tests concluded that his blood-alcohol level was 0.20 – 2.5 times the California DUI level.

The case drew widespread attention – more than that given to other California DUI drunk-driving fatalities – after the California Highway Patrol reported that Barber, while being treated for minor injuries after his California DUI arrest, blurted out:

"Look, dog. It was an accident, man. I didn't mean to kill the b...... So why don't you have some sympathy for me?' "

Barber tearfully apologized to the Olson family. "I am so sorry I have caused so much hurt and grief," he said.

He also apologized "that such a disrespectful statement was attributed to me about Mrs. Olson." His California DUI attorney had little to argue.

9 years for A Fresno man was sentenced in California DUI case

A Fresno California DUI man was sentenced Wednesday to almost a decade in prison on charges stemming from a January 2007 California DUI crash that killed a Tulare woman.

Miguel Angel Contreras, 29, received a nine-year, eight-month sentence after being convicted on changes of gross vehicular manslaughter while intoxicated, California DUI - driving under the influence of alcohol while having a blood alcohol level of higher than .15 percent and causing great bodily injury.

The Tulare County District Attorney's Office said this was Contreras' second conviction for California DUI - driving under the influence and both charges will count as "strikes" under California law.

DUI death driver needs California DUI attorney

California DUI attorney news

DUI / Drunk Driving info



A man died Thursday night after his car was hit by a man suspected of California DUI or drunken driving, California Highway Patrol officials reported.

Cesar Pedroza Ramos, 33, was taken to Riverside Community Hospital after the 7 p.m. accident at Limonite and Etiwanda avenues. He died at 8:15 p.m., a news release from the Riverside County coroner's office said.

Fontana resident Leonel Francisco Cortez Cruz, 24, who fled the crash scene, was arrested at about 9:30 p.m. hiding in a store in the area, said CHP's California DUI attorney contacts.

Cortez Cruz was booked into Robert Presley Detention Center on suspicion of vehicular manslaughter, driving under the influence, hit and run and driving without a license. He is being held without bail and is due in court with his California DUI attorney on March 11.

Foard said Cortez Cruz was southbound on Etiwanda Avenue, approaching Limonite Avenue, when he failed to stop and hit the rear of Ramos' car. Ramos' car hit a third vehicle and then went into the intersection where a fourth car hit it, California DUI attorneys said.

The two other drivers and a passenger in Ramos' car suffered minor to moderate injuries.

Friday, March 7, 2008

Antabuse Implant

California DUI attorney helper

PRESS RELEASE
World Deeds Ltd, offers medical solution for alcoholics
that want to quit drinking “1 year at a time”
“Forget about 1 day at a time,
tried that, done that, says World
Deeds owner Howard Hevern who
virtually “stumbled” on a medical
procedure known as an “antabuse
implant” while traveling in
Europe.”
So what is antabuse? Antabuse
also known as disulfiram which is
prescribed by U.S. doctors is taken
in pill form on a daily basis. It is
for people who want to quit
drinking 1 day at a time or maybe
1 week at a time and an antabuse
implant is for people who want to
quit drinking 1 year at a time,
according to Mr. Hevern in an
interview.
Antabuse is the only F.D.A.
approved deterrent medication
prescribed by doctors for
alcoholics. Here’s how it works:
with antabuse in your system, even
consuming small amounts of
alcohol, within minutes, creates
acetaldehyde in the blood
somewhere between 5 - 10 times
higher than normal.
Acetaldehyde is one of the
major causes of a hangover. “It will
give you a long-lasting hang-over
you’ll never forget before you can
even catch a buzz”, said Mr.
Hevern. “However in pill form, it
doesn’t have a very high success
rate because it’s way too easy to
stop taking the pill.”
“On the other hand, greater
than 90% of patients with an
antabuse implant, (a simple
medical procedure) quit drinking
for as long as antabuse stays in
their system, said Mr. Hevern.
The beauty of the implant is
that it gives you a continued
measured dose of antabuse that is
released inside the body for about
a year and can be repeated as
many times as necessary.”
“I believe judges, DUI lawyers,
wives, husbands, brothers, sisters,
moms, dads, marriage counselors,
drug and alcohol abuse
counselors are going to love this
[simple medical procedure]
because the participant is going to
have at the very least, a “Vacation
from Alcohol” for about a year”.
This “stretch of time” is for
drug and alcohol abuse
counselors to teach coping skills.
“We believe this is a very
powerful winning combination”,
said Mr. Hevern.
The rationale for using
antabuse in treatment is not to
make people sick or to conduct
aversion therapy. It is a treatment
based on deterrent. If a person
wants to remain abstinent, an
implant becomes a powerful
deterrent to drinking. When
people are told about the nature
of the reaction, severe headache,
vomiting, flushing of the face and
other unpleasant symptoms, they
don’t need to “test it” to benefit
from the deterrent.
“It’s kind of like, if you are a
speeder [in a car], and there is a
policeman pointing a radar gun at
you at every corner, you will learn
very quickly to slow down”, says
Mr. Hevern.
“Research in Europe, where
antabuse is more widely used than
in the United States, because
alcohol-related death is the #1
killer of young men between the
ages of 15 -29, has shown that longterm
use of antabuse, using the
antabuse implant is effective in
helping people stop drinking”,
said Mr. Hevern.
“That’s why 28 - 90 day
programs don’t work well because
28 - 90 days is “not enough time”
for the alcoholic to get into the
“habit of not drinking”. The
chances of an alcoholic remaining
sober, go way up when they hit the
1 year mark, much like if someone
quits smoking for a year, then the
chances of remaining smoke-free
for life will go way up,” according
to Mr. Hevern.
“This procedure is not yet
performed in the United States.
That’s where we come in, said
owner and operator, Mr. Hevern,
of his new company called “World
Deeds. We are simply the travel
agents that make all of your travel
arrangements for your trip. We
offer white-glove, door to door
service. We pick you up, wherever
you may be and bring you home
safely. We accompany you the
whole way. It’s actually fun
because all of our staff have had
this nearly pain-free 20 minute
procedure ourselves”, said Mr.
Hevern.
Mr. Hevern cautions the general
public that this procedure is for a
select group of people who have the
desire, and want to, all by
themselves, remain in a state of
“enforced sobriety” for about a
year. There is a screening process
and as with any operation, there is
risk. Side effects rarely occur, most
of which are listed on our web-site.
Antabuse is non-toxic.
“We suggest you should weigh
the likelihood of developing side
effects with the very real effects
alcohol has on your life and body”,
said Mr. Hevern.
Here are some facts to
remember; An alcoholic’s suicide
rate is 30 times that of the general
public. 1 out of 12 people have a
drinking problem. Alcohol is a
disease that disrupts the central
nervous system and alcohol-related
deaths is the #3 killer in the U.S.
for young adults, men and women
between the ages of 15 - 29, not to
mention, an alcohol abuser’s lifespan
can be shortened by as much
as 10 - 15 years. Cirrhosis is the
10th leading cause of death.
When asked of the total cost of
the service and procedure, Mr.
Hevern replied, “less than almost
every 28 day in-patient program in
the United States and less than
most alcoholics will spend in 2
years”. When asked, what
determines if someone is an
alcoholic? Mr. Hevern’s reply was;
“There are many tests that
determine whether you’re an
alcoholic or not, but I have one
sure-fire way of knowing. If the
individual is spending 15 - 20
dollars a day or every other day on
alcohol, they are definitely without
question, no doubt about it,
positively, an alcoholic in my book.
Try adding that over a 2 year
period”. For further information
go to:
antabuseimplant .com
or call World Deeds at
1-808-989-2015

Drunk Driving tastes like sleepy driving or talking on a cell phone?

California DUI attorney query

Everything tastes like chicken. People eat alligator, they say it tastes like chicken. Kangaroo, chicken. Snake meat, well that tastes like chicken too.

Drunk driving or DUI is apparently the chicken of the motor function world. A Stanford study showed sleepy driving "tastes" just like drunk driving, with similar impairment; a University of Utah study showed driving on a cell phone was just as bad or worse than drunk driving. Now textually tells us a CMU study shows that even if you're talking hands-free while driving, it's just as bad as, you guessed it, drunk driving.

All of us multi-task. You're probably not reading this and doing only this--you're flipping between this and work, or there's a TV on somewhere, or you're eating, drinking, something. It's the way of the world now. But somehow, the message that multitasking while piloting what is essentially a 3,000-pound missle is not a good idea just doesn't seem to get through to people.

We all know changing human behavior isn't a viable solution--left to their own devices, people buy knockoff purses, smoke crack, gamble, elect unqualified Presidents, you name it.

California DUI attorneys know there are things that can cause one to appear to be driving drunk when in fact that person may not be drunk.

California DMV process - California DUI Test Refusal Cannot Be Prior to a Lawful Arrest

A California DUI - Department of Motor Vehicles APS hearing is extremely complex and technical, and is usually based on California DUI police and California DUI chemical test reports, not live witness testimony as in a California DUI criminal trial. The California DUI - DMV evidence typically introduced at a DMV hearing is hearsay, which is generally admissible if it meets the requirements of an exception to the Hearsay Rule.

It is imperative to be represented by a California DUI - DMV lawyer who is knowledgeable about the DMV hearing process. A California DUI attorney will challenge the evidence based on the hearsay rule and other legal bases, and if the evidence cannot be legally introduced, the DMV cannot suspend the driver’s license.

How an APS hearing unfolds depends on several factors, such as whether the accused driver submitted to a chemical test of the blood, breath or urine to determine blood alcohol content (BAC), or refused the test. If the driver was under age 21 at the time of arrest, there are additional issues at stake. Driver Safety Officers are employed by DMV to hold hearings and make important decision.

If, for example, the DMV evidence appears to show a refusal took place before the time of a lawful arret, the California DUI attorney should refer to CVC 23612(a)(1)( A): "A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152 or 23153." Accordingly, implied consent laws do not apply or activate until after a lawful California DUI arrest.

A California DUI attorney will refer to CVC 14100 et. seq. for the statutory law on DMV hearings:

CVC 14105 mandates the Driver Safety Officer to make findings and order a decision .

CVC 14112 states that all matters in a hearing not covered by this chapter shall be governed, as applicable by Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code.

Any Order of Suspension should recite findings of fact and the conclusions of law. Could a Driver Safety Officer find imply through the evidence presented at hearing that the refusal followed a lawful arrest, and that the police officer gave the proper mandatory warnings of the dire consequence of refusal? Gov.Code Sec. 11425.50(b) requires specific findings to identify specific evidence from which the hearing officer could form the conclusion of law.

If the only evidence admitted by the Driver Safety Officer at the DMV APS hearing is the Officer's (sworn) Statement [DS367] and the California DUI police report -- both of which clearly show the alleged refusal was prior to lawful California DUI arrest, and perhaps related only to the PAS refusal -- then California DUI attorney should win on any Petition for Writ of Mandamus, i.e. "No reasonable hearing officer could have so concluded based on the evidence below, in impliedly finding (blank circumstance) by a preponderance of evidence, to support the conclusion that the request for test/advisement per 23612 occurred after the arrest". See Hughey v. DMV (1991) 235 Cal.App. 3d 752, Headnote (3): Before the DMV may suspend a license for a driver's failure to submit to a chemical test under the implied consent law it must make four findings: (1) the officer had reasonable cause to believe the driver was violating Veh. Code 23152; (2) the driver was arrested (3) the driver refused to submit to or complete the test and (4) the driver had been notified of the consequences of refusal to submit. If any one of the required findings is deficient, the suspension of the license must be overturned.

Standard on Writ: Is there substantial evidence supporting the findings below?

Findings of fact made by the Driver Safety Officer may reveal the insufficiency of evidence to support the legal conclusion reached by the Driver Safety Officer. That depends upon the record, and the record of California DUI attorney objections to the introduction of any of the DMV's evidence.

California DUI attorneys must make proper and timely objections to the use of facts which might support the Driver Safety Officer's conclusion. California DUI attorneys must object to the admission of that evidence or waive objections. If admitted over a California DUI attorney's objection, the Driver Safety Officer should not be able to utilize this information in forming a conclusion; and such a conclusion should be overturned on a writ after a California DUI attorney's petition.

Higher Alcohol Wines alert California DUI attorneys

California DUI attorney news

SEBASTOPOL, California

California's big reds are coming on strong these days as winemakers pursue riper, fuller-flavored fruit.

A number of wines have been creeping past 14 percent alcohol and even into the 15- to-16 percent range, as opposed to the tamer 12- to 13-percent of years past.

This is largely because vintners wait longer to pick their grapes. More mature fruit is thought to make tastier wine, but it also means sugar levels have a chance to rise, which comes with the side effect of pumping up the alcohol volume. Warmer harvests only increase the phenomenon.

Some are calling for a halt to the so-called "hot wines."

"I just hate high-alcohol wines," said Randy Dunn, founder of Dunn Vineyards, who fired off an open letter last year urging consumers to demand wines of 14 percent alcohol or less.

Darrell Corti, president of Corti Brothers, a Sacramento wine and food market, is also in the less-is-more camp, announcing last year his store won't carry table wines over 14.5 percent alcohol.

Still, big reds, many of which are highly rated by critics, have their champions.

"They fill your mouth with flavor; you can chew on them. They linger on your palate when you're drinking them and that's what Napa is known for -- its big, chewy cabs," said Doug White, director of operations for the Vintner's Collective, a Napa tasting room specializing in boutique wineries.

For those who don't like the big wines, some have an issue with the style of higher-alcohol vintages while others are wary of the punch they can pack.

One definition of the "right" alcohol level is if two people can finish a bottle and "wish there was a little bit more," said Dunn. "You don't do that with a 15.5 percent or 16 percent alcohol wine," he added. "You'd be lying on the floor."

It's not always easy to tell just how much alcohol is in a wine.

Wines containing 7 percent to 14 percent alcohol can be labeled just "table wine" or "light wine," as opposed to listing the alcohol content, under federal regulations. When a percentage is listed it can be off by up to 1.5 percent, a tolerance granted because one batch of wine may differ from another, said Art Resnick, spokesman for the Alcohol and Tobacco Tax and Trade Bureau in Washington, D.C. Wines over 14 percent alcohol, which fall into a higher tax category, must list alcohol levels with a tolerance of plus or minus 1 percent.

The higher alcohol trend goes back about 10 years when growers started letting grapes stay on the vines longer to develop the full flavor of the fruit, said Kenneth Fugelsang, professor of enology and winemaster of the commercial winery run by California State University, Fresno.

California seems to have been a leader, although higher alcohol wines are also being made in other warm climates, such as Australia, he said.

One way to have ripe fruit without high alcohol is to use various technologies available to pull alcohol out of wine. But that's not something many winemakers want to talk about for fear of crushing the romantic vision of wine as an ancient art untainted by technology, said Clark Smith, co-owner and senior enologist of Vinovation, a company in the wine country town of Sebastopol that reduces alcohol levels through reverse osmosis.

The truth is that wine has already been affected by technology, from stainless steel tanks to sterile filtration, he said.

Unlike cooking, where chefs proudly show off new techniques made possible through innovation, winemaking's become more secretive, said Smith. "It's a shame," he said, "because winemaking's just cooking."

Vinovation's process works by using powerful filters that remove alcohol and water from wine. The two are separated by distilling and the water is then put back into the wine. To arrive at just how much alcohol should be taken out, Vinovation uses a method they call "sweet spotting," to find the point where the wine is at a lower level of alcohol but still tastes good.

Fugelsang, who uses Vinovation when his wine comes in with too much alcohol, sees the technology as "another tool in the winemaker's chest," but he understands why others are reluctant to open up about adjusting alcohol levels.

"I think a lot of it has to do with the fact that wineries don't want to be criticized by the wine press and others who harken back to wonderful wines they've had around the world that were just made with the hands of the winemaker and input from the grower," he said.

At Shafer Vineyards, a Napa Valley producer of highly rated reds, some coming in at 14.9 percent, winery president Doug Shafer won't use technology to reduce alcohol.

"We like our wines. We like the fruit. We like the richness," he said.

Shafer is aware of the debate over how much is too much, but says it's up to consumers to decide what style of wine they prefer. "I'm not forcing anyone to buy our wines -- we're selling everything," he points out.

Industry wide, "the quality of wines from around the world just keep getting better and better," Shafer said. "I think this is the golden age for the consumer."

2 California DUI checkpoints announced

Visalia California DUI police said Thursday they will set up a California DUI checkpoint Saturday, March 15, targeting California DUI and unlicensed drivers.

California DUI Police did not announce the location of the California DUI checkpoint but said it was possible that all vehicles passing through it would be checked. In addition, police announced a multi-agency California DUI task force for Visalia on Easter Sunday, March 23.

Thursday, March 6, 2008

Music vs. Drunk Driving

California DUI Attorneys info

After her best friend lost her brother in a car accident related to drunk driving back in September of 2007, Orange County native, Allison "Tereska" Navarro realized that it was time for someone to step up and do something to prevent tragedies like this in the future, and educate young people about the dangers of drunk driving.

It was then that the music lover decided to create Music VS Drunk Driving ---- hoping that her passion for song would inspire others to refrain from drinking and driving.

"Music VS Drunk Driving was founded on the basis of promoting an awareness of the dangers of driving under the influence of alcohol," Allison said. "We want kids to understand that while underage drinking may sound cool, and may make you look cool, it really isn't. We want to show kids and adults that it can hurt people all around you, whether you know them or not. We aren't here to point our fingers, blindly telling you that drinking is bad, and no one should do it. Instead, we are here to serve as a source to provide you with information on how to prevent drunk driving and underage drinking."

But those affiliated with Music VS Drunk Driving wanted to ensure that they wouldn't scare potential listeners away by preaching their cause. Instead, they enlisted the help of something that people both young and old are attracted to � music.

"We want kids to get hooked on music, not alcohol," Navarro said. "Music is the key, the message, the story to young kids and adults today. It plays a role in all of our lives. Without music, our world would be dull and boring ---- much like a movie without a soundtrack. Music brings pleasure and vitality; while drunk driving can only promise punishment and pain."

While currently an independent organization, Navarro is working towards making Music VS Drunk Driving a nonprofit company. The constant word-of-mouth surrounding the organization, along with the support of various bands can only help her plight.

"Hellogoodbye, A Cursive Memory, New Found Glory, Metro Station, and Mike Herrera of MxPx are among some names that we work with," Navarro said. "They are all great bands, and are very happy to support us. There are many other bands who support Music VS Drunk Driving, as well. What's cool about this is that they are located all over the (United States) and even in (Great Britain). We don't just work with bands from California, because we don't work that way. We want to spread our love to everyone no matter where they are from."

Of course, Music VS Drunk Driving isn't only searching for big-name bands to draw in listeners. They are only too happy to work with local bands from around the country who have no qualms about helping the cause. Case in point, Temecula-based Hemingway, Corona-based Casket Salesmen and Long Beach-based Inverse. The latter two having been signed on to perform during a Music VS Drunk Driving West Coast tour, which has since been canceled. But even with the cancellation, Navarro is determined to begin hosting tours as soon as possible.

"We are hoping to start hosting our own shows very soon," Navarro said. "We are working on some as we speak ---- you can look for these shows to start late April/early May. This year we are hoping to do as many shows as we possibly can. Ideally, we would like to tour around the world nonstop, all year long, spreading our words against drunk driving. It would just be amazing, and we hope we can someday. We would also like to be a part of Warped Tour, and be able to join up with other music fests."

Big-time tours aren't the only thing on Navarro's mind. Through Music VS Drunk Driving she is set on reaching listeners of all ages ---- even going so far as teaming up with high schools to conduct shows during prom, a time when drinking and driving is at an all-time high.

"One goal that we have, and are currently working on, is to take over high school proms, and make this a memorable night," Navarro said. "I can't release details on this, because we are still working everything out, but it's going to be fun."

Most likely as fun as playing the guitar, which is something that Navarro does in her free time. The talent buyer/manager for Fullerton's The Alley has also owned two clothing companies in the past, and managed bands such as the UK's LOST? But much of this takes a back-seat when she created Music VS Drunk Driving. In her opinion, however, it was well worth it.

"The feedback has been amazing," Navarro said. "I cannot believe how well we are doing, and how fast things have taken off. I never expected for things to just blow up this fast. I am so excited to see what is going to happen this year. Words can't explain how grateful I am, and how happy I am to be a part of Music VS Drunk Driving."

The bands certainly have no complaints towards the organization either. In fact, by making music such a large part of the company, Navarro is giving musicians the chance to be painted in a new light ---- one that doesn't involve the oftentimes inaccurate, so-called "rock 'n' roll lifestyle."

"There are always a lot of negative issues when it comes to music and alcohol, so we wanted to give music the positive role," said Navarro. "A lot of people just assume that bands drink and party because of the whole rock 'n' roll stereotype. We want to show the world that music is such a powerful force, which can conquer and overcome a negative situation. Music has a very powerful message, and we want to use it for good."

And that is exactly what those working with Music VS Drunk Driving do, each and every day.

"Whether you're at the level of Break Your Silence or at the level of New Found Glory, you can help to make a difference," Navarro said. "We welcome any and every band who wants to be a part of, or support, Music VS Drunk Driving. Without music, we wouldn't exist."

Want to learn more about Music VS Drunk Driving? Cruise on over to myspace.com/musicvsdrunkdriving.

Barron Hilton facing California DUI, say attorneys

California DUI attorney news

MALIBU, California

Paris Hilton's 18-year-old brother was charged Thursday with four misdemeanor counts -- including California DUI and being an unlicensed driver -- stemming from his Feb. 12 California DUI arrest in Malibu.

Barron Nicholas Hilton is charged with California DUI driving under the influence of alcohol or drugs, driving while having a 0.08 percent or higher blood-alcohol level, unlawful use of a license and being an unlicensed driver.

The Beverly Hills resident spent more than nine hours in custody before being released Feb. 12 from the Malibu/Lost Hills sheriff's station.

A witness who reported Hilton driving a Mercedes-Benz erratically on northbound Pacific Coast Highway near Latigo Canyon Road followed him to a 76 gas station, where he was arrested.

Hilton's California DUI blood-alcohol content was estimated at .14 percent -- nearly twice the California DUI legal limit.

He is scheduled to be arraigned April 14 at the California DUI Malibu courthouse, according to the district attorney's office. He is free on $20,000 California DUI bail.

Hilton's older sister, Paris, spent 23 days in sheriff's custody last year at a Lynwood lockup for violating probation in a misdemeanor alcohol-related reckless driving case. The 27-year-old hotel heiress and sometime-actress remains on probation.

California DUI checpoint March 23 Easter Sunday

California DUI attorney - checkpoint news

Visalia police and California DUI officers from other law enforcement agencies will be actively looking for California DUI impaired drivers as part of a California DUI saturation detail on Easter Sunday, March 23.

The DUI operation will involve a multi-agency California DUI task force, a California DUI lawyer news release from the Visalia Police Department states.

“In an effort to reduce the number of persons killed and injured in alcohol-involved crashes, DUI multi-agency operations are conducted to identify offenders and get them off the street,” the California DUI attorney news release states.

Cell phone could be as dangers as being DUI

California DUI attorney news

Mobile Phone Use while Driving as Risky as DUI Alcohol

March 6th, 2008

A new study has found that using a mobile phone while driving could be as dangerous as being under the influence of alcohol.

The study that was conducted by Carnegie Mellon University researchers found that drivers who were under the influence of alcohol and those who were speaking on their mobile phones, tend to commit the same type of errors.

The study documented how mobile phone use alone reduces 37% of brain activity engaged in driving. This was done using brain imaging. During the study, drivers on a simulator while on the phone were found to zigzag out of their lanes.

The findings also suggest that making mobile phones hands-free or voice activated for that matter is not really enough to do away with distractions.

“Drivers need to keep not only their hands on the wheel; they also have to keep their brains on the road,” said researcher Marcel Just.

Talking on a cell phone has a special social demand, and not interacting with the caller can be interpreted as rude or insulting behavior, he added.
The 29 volunteers for the study used a driving simulator inside an (MRI) brain scanner. They steered a car along a virtual winding road either while they were undisturbed or while they were deciding whether a sentence they heard was true or false.

Just’s team used state-of-the-art functional magnetic resonance imaging (fMRI) to measure activity in 20,000 brain locations, each about the size of a peppercorn. Measurements were recoded every second.

The listening-and-driving mode produced a 37 percent decrease in activity of the brain’s parietal lobe, which is associated with driving.

Wednesday, March 5, 2008

Judge must properly instruct in California DUI cases

California DUI lawyers news

Filed 3/5/08 P. v. Smith CA4/1

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,

v.

CRAIG SMITH,

Defendant and Appellant.
D049993
(Super. Ct. No. SCD195342)


APPEAL from a judgment of the Superior Court of San Diego County, Albert T. Harutunian III, Judge. Reversed.

This appeal concerns two trials arising from Craig Smith's conduct of driving with alcohol in his system. Smith was arrested shortly after his vehicle was rear-ended by another vehicle. Approximately one hour after the accident, Smith's blood alcohol level was .17. Smith claimed this elevated level was the result of his drinking alcohol immediately after the accident. In the first trial, the jury acquitted Smith of driving with a blood alcohol level of .08 or more (Veh. Code,1 § 23152, subd. (b), hereafter sometimes referred to as "per se DUI"), but could not reach a verdict as to whether he drove under the influence of alcohol (§ 23152, subd. (a), hereafter sometimes referred to as "generic DUI"). At the second trial, the jury convicted Smith of driving under the influence of alcohol.

Challenging this conviction on appeal, Smith argues that at the second trial the court violated collateral estoppel principles by: (1) admitting the evidence that he had a postaccident .17 blood alcohol level; (2) instructing the jury that a .08 or more blood alcohol level creates a permissive presumption of driving under the influence; and (3) failing to instruct the jury that it should presume he did not drive with a blood alcohol level of .08 or more. We reject Smith's argument that the .17 blood alcohol evidence was inadmissible. However, we conclude that based on the interrelationship between the generic and per se DUI offenses, collateral estoppel principles were violated when the second jury was permitted to consider the issue of whether Smith drove with a .08 or more blood alcohol level. Moreover, we agree with Smith that the jury should not have been instructed regarding the permissive presumption arising from a .08 or more alcohol level and should have been instructed to presume his blood alcohol level was less than .08 while driving. We conclude the error requires reversal.

FACTUAL AND PROCEDURAL BACKGROUND

On December 1, 2005, Smith's vehicle was rear-ended by another vehicle. Smith smelled of alcohol, had bloodshot, watery eyes, and performed poorly on field sobriety tests. He was arrested and taken to the police station, where a test performed approximately one hour after the accident showed a blood alcohol level of .17.

Smith was charged with violating sections 23152, subdivision (a) (driving while under the influence of alcohol) and 23152, subdivision (b) (driving with a blood alcohol level of .08 or greater). At trial, Smith called witnesses who testified that he had about two or three drinks at a bar; he was involved in an altercation with bar patron Alephonsion Deng; Deng followed Smith after Smith drove away from the bar; and shortly thereafter Deng rear-ended Smith's vehicle. Smith did not dispute that he had a .17 blood alcohol level some time after the accident, but explained this elevated level by testifying that after the accident he was distressed and in response he drank brandy that he had in his vehicle. On cross-examination, the prosecution's expert acknowledged that a person's blood alcohol level could rise to .17 one hour after rapidly consuming 12 ounces of brandy. A coffee cup containing alcohol was found in Smith's vehicle, and a liquid that appeared to be alcohol was spilled on the front passenger seat.

In February 2006, a jury found Smith not guilty of the section 23152, subdivision (b) (per se DUI) offense, but could not reach a verdict on the section 23152, subdivision (a) (generic DUI) offense. The court declared a mistrial on the generic DUI count.

In April 2006, retrial commenced on the generic DUI offense. Smith moved to limit the issues presented to the second jury. Based on the first jury's verdict acquitting him of driving with a blood alcohol level of .08 or more, he argued that under collateral estoppel principles the second jury should not be allowed to consider whether he was driving with a blood alcohol level of .08 or more. He requested that the court exclude evidence related to the .08 issue, including the evidence that his blood alcohol level was .17 after the accident. Alternatively, he requested that the court (1) give the second jury a limiting instruction based on the first jury's acquittal, and (2) refrain from instructing the second jury regarding the permissive presumption of driving impairment arising from a blood alcohol level of .08 or more.

The trial court denied Smith's motions, ruling that the .08 issue could be considered by the second jury; the second jury should not be told about the first jury's acquittal on the .08 count; the .17 blood alcohol test results were admissible; and the second jury would be instructed regarding the permissive presumption arising from a .08 or more blood alcohol level. Accordingly, at the second trial the prosecution presented its case with no restrictions arising from the first jury's acquittal, and the jury was instructed that it could infer that Smith drove under the influence of alcohol if it found the prosecution proved he had a blood alcohol level of .08 or greater. (See § 23610; Judicial Council of Cal. Crim. Jury Instns. (2007-2008) CALCRIM No. 2110.) The second jury convicted Smith of generic DUI under section 23152, subdivision (a).

Smith appeals from this conviction, essentially reiterating the assertions he made at trial. He contends that based on collateral estoppel principles the .17 blood alcohol evidence should not have been admitted at the second trial. Alternatively, he contends the second jury should not have been instructed regarding the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level, and the second jury should have been instructed to presume he did not drive with a .08 or more blood alcohol level.

To evaluate his contentions, we first summarize general collateral estoppel principles, and then apply these principles to the particular circumstances of this case.

DISCUSSION

I. Collateral Estoppel Principles

The double jeopardy clause of the Fifth Amendment of the United States Constitution prohibits trying a defendant more than once for the same offense. (People v. Santamaria (1994) 8 Cal.4th 903, 910 (Santamaria).) Collateral estoppel is a component of the double jeopardy protection, prohibiting relitigation of factual issues when certain requirements are met. (Id. at p. 912, fn. 3; Ashe v. Swenson (1970) 397 U.S. 436, 445 (Ashe).) The doctrine provides that "when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." (Ashe, supra, at p. 443.) When applying the principle in criminal cases, the United States and California Supreme Courts have emphasized that "collateral estoppel . . . is not to be applied with [a] hypertechnical and archaic approach . . . but with realism and rationality. . . . The inquiry 'must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.' " (Id. at p. 444; accord Santamaria, supra, 8 Cal.4th at pp. 920, 926.)

Generally, collateral estoppel applies " 'if (1) the issue necessarily decided at the previous trial is identical to the one which is sought to be relitigated; if (2) the previous trial resulted in a final judgment on the merits; and if (3) the party against whom collateral estoppel is asserted was a party or in privity with a party at the prior trial.' " (Santamaria, supra, 8 Cal.4th at p. 916.) Additionally, "the issue to be precluded must be 'an issue of ultimate fact . . . .' " (Ibid.) To satisfy the "ultimate fact" requirement, the issue must pertain to a fact that the prosecution must prove beyond a reasonable doubt in the second trial. (Dowling v. United States (1990) 493 U.S. 342, 348-349 (Dowling); Santamaria, supra, 8 Cal.4th at p. 922; People v. Catlin (2001) 26 Cal.4th 81, 124 (Catlin); see United States v. Wells (8th Cir. 2004) 347 F.3d 280, 285 ["A fact previously determined in a criminal case is not an 'ultimate fact' unless it was necessarily determined by the jury against the government and, in the second prosecution, that same fact is required to be proved beyond a reasonable doubt in order to convict"].)

A review of several United States and California Supreme Court decisions reveals that application of the collateral estoppel rule is heavily dependent on the factual and legal context of the particular case. In Ashe, supra, 397 U.S. 436, the defendant was charged with a robbery involving a group of people playing poker. The defendant was tried for the robbery of one of the victims, and found not guilty. (Id. at pp. 438-439.) Thereafter, the defendant was tried for the robbery of another of the poker players, and found guilty. (Id. at pp. 439-440.) The Ashe court concluded the second prosecution violated collateral estoppel. The court reasoned the only issue in dispute at the first trial was whether the defendant had been one of the robbers; the first jury had determined he was not one of the robbers; and accordingly under the principle of collateral estoppel the state could not "constitutionally hale him before a new jury to litigate that issue again." (Id. at p. 446.)

In Dowling, supra, 493 U.S. 342, the defendant was charged with robbery, and the prosecution sought to introduce evidence of an uncharged attempted robbery offense of which the defendant had been acquitted. The uncharged offense evidence was offered to prove identity based on the testimony of the uncharged offense victim identifying the defendant as the man who entered her house and revealing common features with the charged offense. (Id. at pp. 345-346.) The trial court admitted the uncharged offense evidence, instructing the jury that the defendant had been acquitted of the uncharged crime and emphasizing the limited purpose for the admission of the uncharged crime evidence. (Ibid.) On review, the United States Supreme Court found no collateral estoppel bar to the admission of the uncharged crimes evidence. The court reasoned that, unlike the situation in Ashe, the defendant's "prior acquittal did not determine an ultimate issue in the present case." (Id. at p. 348.) The Dowling court observed that in Ashe, the "acquittal in the first trial foreclosed the second trial because, in the circumstances of that case, the acquittal verdict could only have meant that the jury was unable to conclude beyond a reasonable doubt that the defendant was one of the bandits. A second prosecution was impermissible because, to have convicted the defendant in the second trial, the second jury had to have reached a directly contrary conclusion." (Id. at pp. 347-348.) In contrast, in Dowling, the prosecution in the current robbery case did not need to prove the defendant's commission of the uncharged crime beyond a reasonable doubt but only needed to present sufficient evidence from which a jury could reasonably find the defendant committed the uncharged offense. (Id. at pp. 348-349.) Alternatively, the Dowling court found the defendant had not shown that the jury at the uncharged offense trial necessarily decided he was not the man who entered the victim's home, because the record suggested that he had conceded his presence at her home but claimed it was not for purposes of robbery. (Id. at pp. 350-352.)

Following Dowling, the California Supreme Court rendered two decisions that included the concept that an issue did not pertain to an "ultimate fact" barred by collateral estoppel unless it needed to be proven by the prosecution at the second trial to establish the charged offense. (Santamaria, supra, 8 Cal.4th 903; Catlin, supra, 26 Cal.4th 81.) In Santamaria, the first jury convicted the defendant of murder and robbery, but found not true a personal knife use enhancement. (Santamaria, supra, 8 Cal.4th at p. 909.) The principal witness against the defendant was a man who was with the defendant at the time of the murder and who pleaded guilty to being an accessory to the murder; this witness testified that he saw the defendant stab the victim. (Id. at pp. 908-909.) After the judgment was reversed on appeal for trial error, the defendant was again charged with the same offenses, but without the weapon enhancement allegation. (Ibid.) At the second trial, the trial court ruled that the defendant could not be retried on the theory that he personally used the knife during the killing. (Ibid.) Because the evidence showed the cause of death was the knife wound, the prosecution stated it could not proceed with the case in light of the court's ruling; accordingly, the trial court dismissed the case. (Id. at pp. 909-910.)

On review, the California Supreme Court considered whether collateral estoppel should be applied to "mandate that after a judgment is reversed on appeal, the original jury's finding on a sentencing enhancing allegation affects retrial of a murder charge, even though the same jury convicted defendant of that murder. . . ." (Santamaria, supra, 8 Cal.4th at p. 908.) Noting that collateral estoppel should be applied in a practical, realistic fashion, the Santamaria court found collateral estoppel did not bar the knife use theory from the second trial because (1) the defendant could have been culpable for murder either as a direct perpetrator or an aider and abettor, and the first jury may have rendered the not true finding on the weapon enhancement merely because it was not certain whether the defendant or the admitted accessory had used the knife, and (2) the defendant's personal knife use was not an ultimate issue that had to be proven beyond a reasonable doubt in the second prosecution for murder. (Id. at pp. 918-922, 926.)

In Catlin, the defendant was charged with two murders, and evidence of a third uncharged murder was admitted to show identity and common plan based on the common features shared in all three murders. (Catlin, supra, 26 Cal.4th at pp. 98, 103-104, 120-121.) At the trial for the two charged murders, the defendant asserted that collateral estoppel required exclusion of evidence that he had received life insurance proceeds after the death of the uncharged murder victim, because at the trial on the uncharged murder the court had found not true the special circumstance allegation that he committed the murder for financial gain. (Id. at p. 123.)

On review, the California Supreme Court found that the trial court properly denied the defendant's motion to exclude the financial gain evidence associated with the uncharged offense. The Catlin court reasoned that the issue of whether the defendant murdered the uncharged murder victim for financial gain "was not an issue of ultimate fact to be determined in the present proceeding" because the defendant was not currently on trial for the murder of the uncharged murder victim, and "the prosecution was not required to establish [the financial gain circumstance alleged in the uncharged offense] beyond a reasonable doubt or, indeed, to prove it at all." (Catlin, supra, 26 Cal.4th at pp. 124-125.) The court in Catlin also rejected the defendant's argument that it was inherently unfair to admit the financial gain evidence associated with the uncharged offense because he was in effect being retried on this issue. (Id. at p. 126.) The court stated the financial gain evidence was being admitted to establish facts regarding the currently charged murders, not to relitigate the defendant's responsibility for the uncharged murder for financial gain. (Id. at p. 127.)

II. Application of Collateral Estoppel in the Context of Per Se and Generic DUI Offenses

A.

Our task is to determine whether the collateral estoppel rule should be applied in a particular case with " 'with an eye to all the circumstances of the proceedings,' " and with realism, rationality, and practicality. (Ashe, supra, 397 U.S. at p. 444; Santamaria, supra, 8 Cal.4th at pp. 920, 926.) A practical application of collateral estoppel in the context of this case necessarily requires a consideration of the manner in which the Legislature has defined offenses involving persons who drive with alcohol in their system.

The Legislature has created two offenses to punish unsafe driving resulting from a driver's alcohol consumption: (1) driving while under the influence of alcohol (§ 23152, subd. (a) (generic DUI)), and (2) driving with a blood alcohol level of .08 or more (§ 23152, subd. (b) (per se DUI)). (See People v. Bransford (1994) 8 Cal.4th 885, 888.) The two offenses are related because they pertain to the same criminal event, but are distinct because they have different elements of proof—i.e., the generic DUI offense requires a showing of driving impairment but does not require a showing of any particular blood alcohol level, and the per se DUI offense requires a showing of a .08 or more alcohol level but does not require a showing of driving impairment. Although both punish the same act—unsafe driving caused by alcohol consumption—that act can be established by proving either impairment or a blood alcohol level of .08 or higher. The creation of an offense based on a .08 or greater blood alcohol level (without requiring proof of actual driving impairment) passes constitutional muster because scientific evidence shows driving impairment at this level of alcohol. (See Burg v. Municipal Court (1983) 35 Cal.3d 257, 267-268.) Concomitantly, because scientific evidence shows impairment at the .08 level, when a defendant is charged with generic DUI the Legislature has authorized a jury instruction setting forth a permissive presumption allowing the jury to infer the ultimate fact of driving under the influence from the basic




fact of a .08 or more blood alcohol level. (§ 23610; People v. Milham (1984) 159 Cal.App.3d 487, 503-505; see CALCRIM 2110.)2

Thus, although the generic and per se DUI offenses are distinct, they are interrelated, and it is in this context that we must consider whether collateral estoppel principles apply.

In the first trial the jury found the prosecution could not prove beyond a reasonable doubt that Smith had a blood alcohol level of .08 or more while driving, but could not agree whether he was under the influence of alcohol while driving. Double jeopardy principles did not bar retrial on the generic DUI count because its elements are distinct from per se DUI. However, collateral estoppel principles could apply to bar issues (1) that were necessarily decided by the first jury, and (2) that are issues of

ultimate fact in the second trial. (Santamaria, supra, 8 Cal.4th at pp. 916, 922.)3

Here, the first collateral estoppel component is clearly met. The jury in the first trial necessarily decided that the prosecution could not prove beyond a reasonable doubt that Smith drove with a blood alcohol level of .08 or more. Unlike the situation in Santamaria, where the jury could have rejected the knife use finding based on a doubt whether the defendant committed the murder by personally using the knife or as an aider and abettor, here the sole reason the jury could have rejected a guilty verdict on the per se DUI count was that it found that the prosecution had not proven Smith's blood alcohol level was at least .08 while driving.

As to the "ultimate fact" component, it would appear, at first blush, that the jury's rejection of the per se DUI count does not implicate collateral estoppel principles. At the second trial the prosecution had to prove impairment as a result of alcohol consumption; it did not need to prove that Smith had a blood alcohol level of .08 or more while driving.

Thus, the fact determined at the first trial (rejection of the .08 finding) was, at least facially, not an issue of ultimate fact in the second trial. But such a strict construction of the ultimate fact requirement would fail to consider the interrelated nature of the two offenses—i.e., (1) they involve the precise same criminal event, and (2) by virtue of the section 23610 presumption, a violation of per se DUI (.08 or more blood alcohol level) supports an inference of impairment establishing a violation of generic DUI.

Additionally, such a strict construction ignores the evidentiary impact of the section 23610 presumption in a generic DUI trial where, as here, the only disputed issue is impairment. Although a jury deciding whether a defendant is guilty of driving while impaired is not required to rely on a .08 finding, that finding, coupled with the presumption instruction, plays a pivotal—if not decisive—role in the jury's determination of the charge. For all practical purposes, permitting the second jury to consider whether the defendant had a .08 or more blood alcohol level while driving allowed the second jury to decide an issue that was virtually dispositive of the ultimate fact, even though that predicate fact was necessarily adjudicated and rejected in the first trial. When considered in this context, collateral estoppel is clearly implicated.

At the first trial, the prosecution proffered two different crimes in an effort to punish the defendant for his alleged unsafe driving arising from the consumption of alcohol. The first jury rejected the crime premised on the .08 or higher blood alcohol level allegation (§ 23152, subd. (b)), but could not reach a conclusion regarding the crime premised on an impairment allegation (§ 23152, subd. (a)). Thus, the whole purpose of the second trial was to determine whether the prosecution could prove "drunk driving" under the impairment theory, and to do so without relying on the .08 blood alcohol level finding rejected by the first jury and without the benefit of the inference of impairment attendant to such a finding.

Because collateral estoppel principles were not applied, instead of advising the jury of the limitation arising from the first jury's verdict, the second jury was told it could render a guilty verdict premised on the very finding rejected by the first jury: i.e., that Smith drove with a blood alcohol level of .08 or more. Indeed, to the extent the second jury based its verdict on a finding that the defendant drove with a .08 or more blood alcohol level, the first jury's acquittal was effectively negated.

Given that per se and generic DUI concern the same criminal event, and that a finding establishing per se DUI supports an inference that can establish generic DUI, this case strongly implicates the core collateral estoppel concern of "protect[ing] a man who has been acquitted from having to 'run the gantlet' a second time." (Ashe, supra, 397 U.S. at p. 446.) This case is distinctively different from Catlin, where the court found no unfairness in requiring relitigation of an issue resolved in an uncharged offense trial because the defendant was on trial for an entirely distinct criminal event. Here, it was inherently unfair to require Smith to relitigate an issue that a jury resolved in his favor in a trial involving the same criminal event, and which issue (if resolved against him) could have been highly influential or even dispositive on the ultimate issue of fact in the retrial. Further, unlike the situation in Santamaria, Smith was seeking to prevent the prosecution from pursuing a theory that was rejected in the context of an acquittal of the main criminal event, not in the context of a conviction of the main criminal event.

Applying the collateral estoppel protection in a practical, realistic manner, we conclude that the first jury's finding that the prosecution did not prove the defendant drove with a .08 or more blood alcohol level is binding on the prosecution in the second trial and cannot be relitigated.

B.

Having concluded that collateral estoppel applied at the second trial because the first jury necessarily decided the .08 issue and the .08 issue equated with an issue of ultimate fact at the second trial, we now address the three specific contentions of error raised by Smith: (1) the .17 blood alcohol level evidence should have been excluded; (2) the jury should not have been instructed regarding the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level; and (3) the jury should have been instructed to presume Smith's blood alcohol level was less than .08 while driving.

Our holding that collateral estoppel barred relitigation of the issue of whether Smith drove with a .08 or more blood alcohol level does not bar use of the evidence that his blood alcohol level was .17 about one hour after the accident. Based on the expert testimony regarding alcohol absorption and Smith's own testimony that he drank alcohol after the accident, the first jury's finding that the prosecution could not prove Smith had at least a .08 blood alcohol level while driving did not necessarily constitute a finding that he did not have a .17 blood alcohol level about one hour after the accident. Indeed, Smith concedes that he had a .17 blood alcohol level about one hour after the accident and attributes it to his claim that after the accident he consumed alcohol he had in his car.

Further, even though the first jury rejected the .08 finding, the evidence that Smith's blood alcohol level was .17 about one hour after the accident was still relevant to the prosecution's case on the issue of whether he was impaired at the time of driving. The jury's finding that the prosecution could not prove beyond a reasonable doubt that Smith drove with a blood alcohol level of .08 or more does not preclude a finding that Smith drank a substantial amount of alcohol before the accident, even though the prosecution could not show it had reached the .08 level while he was driving. For example, the second jury could find that Smith's postaccident .17 blood alcohol level supported an inference that he drank a substantial amount of alcohol both before and after the accident, and that (when considered with all the evidence) he had enough alcohol in his system while driving to cause impairment even though his blood alcohol level was not shown to have reached .08 while driving.

However, given the collateral estoppel bar operative because of the first jury's acquittal on the per se DUI count, the second jury should not have been instructed regarding the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level. The permissive presumption, which arises "[i]f the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was .08 percent or more" (CALCRIM No. 2110), is premised on a finding directly contrary to the

finding rejected by the first jury.4

Additionally, because the jury was presented with the .17 blood alcohol level evidence, the jury should have been instructed that it must presume Smith's blood alcohol level was not .08 or more at the time he was driving.5 In order to consider the implications of the .17 blood alcohol evidence, the jury necessarily needed to consider what level of blood alcohol can cause impairment. Relevant to this issue, the jurors were aware from expert witness testimony and the prosecutor's argument that the legal blood alcohol limit for driving is below .08, and the jury was instructed on the permissive presumption of driving under the influence arising from a .08 or more blood alcohol level.6 Based on the .17 blood alcohol evidence and their knowledge of the .08

threshold, the jurors could readily draw an inference that Smith had a .08 or greater blood alcohol level while driving, and in turn readily infer that he drove under the influence. A special instruction effectively advising the jury about the first jury's acquittal on the .08 count was necessary to ensure that the second jury did not improperly rest its verdict on a finding that was expressly rejected by the first jury.7

C.

The erroneous failure to preclude the second jury's consideration of the .08 issue was prejudicial under any standard of review. (See Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond reasonable doubt standard for federal constitutional error]; People v. Watson (1956) 46 Cal.2d 818, 836 [no reasonable probability of different result standard for state law error].) Because a finding that the defendant drove with a .08 or more blood alcohol level carries such a strong inference of driving impairment and the jury was expressly instructed regarding this inference, there is a reasonable probability that had this theory been foreclosed, the second jury would have reached a different verdict. Although there was sufficient evidence to support a finding that Smith was driving under the influence of alcohol, this is an issue that a jury must resolve without being permitted to rely on a finding that Smith drove with a .08 or more blood alcohol level.8

DISPOSITION

The judgment is reversed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.



1 Subsequent statutory references are to the Vehicle Code unless otherwise specified.



2 Based on section 23610, CALCRIM No. 2110 (which was given to the jury here) defines the permissive presumption as follows: "If the People have proved beyond a reasonable doubt that the defendant's blood alcohol level was 0.08 percent or more at the time of the chemical analysis, you may, but are not required to, conclude that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense." Although the instruction (as well as section 23610) refers to the .08 or more level at the time of the chemical analysis, the jury must necessarily infer that the defendant's .08 or more level also existed at the time of driving to use the evidence to infer impairment at the time of driving. (See People v. Schrieber (1975) 45 Cal.App.3d 917, 920-922.)



3 The Attorney General argues that application of collateral estoppel is limited to successive prosecutions, and that it does not apply to retrial of a count. In Santamaria, the court questioned whether collateral estoppel applies "to the same proceeding where the government won by securing a conviction of the substantive count" and a retrial is pursued on the substantive count after reversal on appeal for trial error. (Santamaria, supra, 8 Cal.4th at p. 913.) The Santamaria court declined to resolve the issue because it concluded that, in any event, defendant had not shown that the elements of collateral estoppel had been met. (Id. at pp. 915-916, & fn. 5.) Here, unlike the situation in Santamaria, there was no conviction at the first trial, but rather an acquittal. Subsequent to Santamaria, the California Supreme Court recognized that collateral estoppel principles may properly apply on retrial of a count after the jury acquits the defendant of another count. (People v. Barragan (2004) 32 Cal.4th 236, 255, fn. 7; see U.S. v. Bailin (7th Cir. 1992) 977 F.2d 270, 276.) In the context of this case, we find the Attorney General's assertion unavailing.



4 As noted, CALCRIM No. 2110 and section 23610 refer to the .08 or more level at the time of the chemical analysis. (See fn. 2, ante.) However, because the prohibited conduct is driving under the influence, the jury must additionally infer that the .08 or more level existed at the time of driving to use the .08 or more chemical analysis evidence to support the generic DUI charge.



5 We are not persuaded by the Attorney General's argument that Smith forfeited his right to argue on appeal that the jury should have been instructed to presume his blood alcohol level was less than .08 while driving. Although his trial counsel did not formulate language for such a special instruction, his trial counsel requested that the trial court give the jury a limiting instruction based on the acquittal. This was sufficient to preserve the issue.



6 For example, the prosecution's criminalist referred to the .08 level, and noted that the .17 blood alcohol level was "more than twice the legal limit." Likewise, in closing argument the prosecutor noted the .17 level was twice the legal limit, and emphasized that the Legislature "feels so strongly about [.08]" that it created an inference of driving under the influence at this level.



7 Because of the easily-drawn inference of driving impairment arising from a .08 or more blood alcohol level, in the event the prosecution presents the .17 blood alcohol evidence at a retrial the jury should be instructed that Smith's blood alcohol level while driving was below .08 even though it will not be instructed regarding the permissive presumption. Regardless of what information is presented directly to the jury, many jurors will be aware of the .08 threshold (see Burg v. Municipal Court, supra, 35 Cal.3d at p. 272) and they need to be advised that this issue has already been resolved in Smith's favor.



8 In his brief on appeal, Smith also argues that the evidence was insufficient to support the driving under the influence verdict. This argument appears to be in large part premised on his assertion (which we have rejected) that the evidence of his postaccident .17 blood alcohol level was inadmissible. There was sufficient evidence to support the jury's verdict, including Smith's postaccident .17 blood alcohol level and his poor performance on the field sobriety tests.

Smith also challenges his sentence based on the United States Supreme Court's decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856]. Given our reversal of the judgment as to guilt, we need not consider his sentencing assertions.












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Tuesday, March 4, 2008

Employer's Insurance counts as restitution paid by defendant in California DUI

California DUI defense attorney news

3/4/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

THE PEOPLE,
Plaintiff and Respondent,

v.

CHARLES MICHAEL SHORT,

Defendant and Appellant.
C055359
(Super. Ct. No. 022146)


APPEAL from an order of the Superior Court of Siskiyou County, Roger T. Kosel, Judge. Reversed with directions.

Wells, Small & Selke; Wells, Small, Fleharty & Weil and K. Thomas Smith, Jr., for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Stephen G. Herndon and Alison Elle Aleman, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Charles Michael Short was convicted of driving under the influence of alcohol and causing great bodily injury. The crime occurred while he was driving his employer’s vehicle. As we will explain, the victim restitution order imposed in the criminal action must be offset by money the victim received from the employer’s insurer to settle the personal injury civil action the victim filed against defendant and the employer. Defendant did not procure the insurance policy, his name was not listed in the policy, and he did not pay the premiums. However, the terms of the policy covered defendant while he drove his employer’s vehicle, and the insurance settlement listed defendant as being released from any claims connected with the collision that caused the victim’s injuries. Therefore, the insurance settlement paid to the victim is deemed to be restitution directly from defendant. (Pen. Code, § 1202.4, subd. (a)(1).)

FACTS

While intoxicated with a blood alcohol content of .29 percent, and driving his employer’s vehicle, defendant Charles Michael Short collided with a car driven by Steven DeClusin. As a result of the collision, DeClusin lost his arm above the elbow and suffered numerous other injuries, including fractured ribs.

Defendant pled guilty to driving with a blood alcohol content over .08 percent, and admitted that his blood alcohol content exceeded .20 percent, that he caused great bodily injury, and that he had been previously convicted of driving under the influence of alcohol. He was sentenced to four years and four months in state prison and was ordered to pay fees, fines, and victim restitution to DeClusin in the sum of $450,042.65. (Pen. Code, § 1202.4, subds. (a)(1), (f).)

DeClusin and his wife later filed a civil action against defendant and defendant’s employer, Northstate Recycling, Inc. (Northstate), seeking damages for medical bills, pain and suffering, lost wages, loss of consortium, and property loss.1 To settle that lawsuit, Northstate’s insurer paid the policy limits of two insurance policies totaling $3 million. In exchange, DeClusin and his wife executed a waiver of claims against defendant and Northstate.

Defendant then moved in his criminal case to reduce the victim restitution order by the amount of the settlement that the insurance company paid to DeClusin. The trial court noted that “the purpose of [the victim restitution order] in this case has been accomplished” because the insurance payment made the victim “whole for his economic losses” and that there was no longer any rehabilitative purpose to be served by the restitution order because it “saddled [defendant] with an almost insurmountable unsatisfied civil judgment on his credit record.” Nevertheless, the court held that the offset was not “legally supportable” because defendant did not pay the insurance premiums, he was not listed by name as an insured under the policy, and the policy was procured not for defendant’s advantage but solely for the benefit of defendant’s employer. Defendant appeals.

DISCUSSION

We agree with defendant that the victim restitution order in the criminal action should have been reduced by money the victim received as settlement of the civil action against defendant and his employer.

“[A] victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.” (Pen. Code, § 1202.4, subd. (a)(1); further section references are to the Penal Code.) Thus, “unless it finds compelling and extraordinary reasons for not doing so,” the court in a criminal proceeding must require the defendant to make “full restitution” to a victim “in an amount established by court order, based on the amount of loss claimed by the victim . . . or any other showing to the court.” (§ 1202.4, subd. (f).)

Even when a victim obtains a settlement from a company that insured the defendant for civil liability, the court in a criminal action may order the defendant to pay victim restitution. This is so because the victim “might rationally choose to accept an insurance settlement for substantially less than his or her losses rather than risk the uncertain . . . possibility that the defendant will pay the entire restitution amount” (People v. Bernal (2002) 101 Cal.App.4th 155, 163 (hereafter Bernal)), and the “victim’s willingness to accept the [insurance settlement] in full satisfaction for all civil liability, . . . does not reflect the willingness of the People to accept that sum in satisfaction of the defendant’s rehabilitative and deterrent debt to society.” (Id. at p. 162.)

However, when the victim has obtained a settlement payment from a company that insured the defendant for civil liability, the amount of the restitution order in a criminal action must be offset by money paid to the victim by the insurance company. (Bernal, supra, 101 Cal.App.4th at pp. 165-168.) The relationship between the defendant and the insurance company is such that the victim is deemed to have received the civil settlement payment “directly from the defendant” within the meaning of section 1202.4, subdivision (a)(1). (Id. at p. 168.)

Likening himself to the appellant in Bernal, defendant contends the trial court erred in refusing to apply the settlement payment as an offset to the restitution order.

The People seek to distinguish this case from the situation in Bernal, where the person convicted of a crime had procured the insurance, made the premium payments, and had a contractual right to have the payments made by the insurance company to the victim. (Bernal, supra, 101 Cal.App.4th at p. 168.) Here, the People point out, defendant did not apply for the insurance policy, he did not make the premium payments, and his name was not listed in the policy. Thus, the People argue, he “should not benefit” from the “fortuitous” fact that his employer had procured an insurance policy “covering” defendant’s act.

The People cite In re Tommy A. (2005) 131 Cal.App.4th 1580 (hereafter Tommy A.) and People v. Hamilton (2003) 114 Cal.App.4th 932 (hereafter Hamilton) as support for their position. Tommy A. involved a conviction for hit and run driving resulting in property damage. The culprit was driving the vehicle of his mother’s friend, whose insurance carrier “fully paid the victim under a settlement agreement for her economic losses . . . .” (Tommy A., supra, 131 Cal.App.4th at p. 1582.) Hamilton involved the shooting of a person who was working for the culprit and his mother. When the victim sued them in a civil action, the mother’s insurer settled the claim on her behalf. (Hamilton, supra, 114 Cal.App.4th at p. 935.) Both Tommy A. and Hamilton held that the victim restitution orders imposed in the criminal actions could not be offset by settlement payments in the civil actions because the culprits did not procure the insurance policies or pay the insurance premiums. (Tommy A., supra, at p. 1590; Hamilton, supra, at p. 942.) Hamilton added that the settlement was made only on the mother’s behalf and did not mention the culprit. (Hamilton, supra, at p. 943.) Thus, those decisions held that the settlement payments did not qualify as “restitution directly from” the offender, within the meaning of section 1202.4, subdivision (a)(1). (Tommy A., supra, at p. 1590; Hamilton, supra, at pp. 942-943.)

A different result was reached by the majority in People v. Jennings (2005) 128 Cal.App.4th 42 (hereafter Jennings). Similar to the case now before us, Jennings involved driving under the influence of alcohol causing great bodily injury, while the culprit was driving his mother’s car. (Id. at pp. 46, 53-54.) The company that insured the car paid a civil settlement to the victim. The culprit did not procure the policy and did not directly pay the premiums. However, he was named as an insured in the policy (id. at pp. 48, 53), and the settlement “was made ‘directly’ on [his] behalf, as well as on his mother’s behalf.” (Id. at p. 54.) Jennings concluded there is no basis to “draw a distinction” between persons who procure and pay for an insurance policy and those who are simply covered by the policy. (Ibid.) “Whether the defendant procured the insurance in question, whether the defendant has a contractual right to have payments made on his behalf, and whether the insurer has a right to indemnity or subrogation against the defendant, each goes to the heart of the concept of being ‘insured.’ In contrast to these factors, ‘the question who paid the premiums on the policy is irrelevant to determining who is an insured under the policy.’ [Citation.]” (Id. at p. 56.) Accordingly, “rather than try to determine how the insurance was procured, a court must determine simply whether or not the insurer’s payments to the victim were made on behalf of the defendant as a result of the defendant’s status as an insured.” (Id. at p. 57.)

We agree with the reasoning of Jennings.

The two insurance policies at issue in this case were issued for defendant’s employer. A commercial vehicle policy insured the employer and “[a]nyone else while using with your permission a covered ‘auto’ you own, hire or borrow . . . .” An “umbrella” policy insured the employer and “[a]ny person (other than Your partners, executive officers, directors, stockholders or employees) or organization with respect to any Auto owned by you, loaned to you or hired by you or on Your behalf and used with Your permission.”

The People do not dispute that when he collided with DeClusin’s car and injured the victim, defendant was acting within the course and scope of his employment and was driving an employer vehicle that was covered by the two insurance policies. Consequently, although his name is not listed as an insured in either policy, defendant was a member of the class of insureds covered under the policies. For this reason, the insurance company was contractually obligated to compensate the victim on behalf of defendant as well as on behalf of his employer, even though defendant did not procure the policy or make the premium payments. This is exactly what the insurance company did by paying $3 million to the victim in exchange for his release of both defendant and his employer from further liability arising out of the collision.

Thus, the settlement payment is deemed to be restitution to the victim made directly from defendant within the meaning of section 1202.4. (Jennings, supra, 128 Cal.App.4th at pp. 53-57; Bernal, supra, 101 Cal.App.4th at pp. 165-168.)

This is not, as the People claim, a fortuitous windfall that should not inure to defendant’s benefit. Labor Code section 2802 requires an employer to insure or otherwise indemnify an employee “for all . . . losses incurred by the employee in direct consequence of the discharge of his or her duties[.]” (Lab. Code, § 2802.) Thus, the statute requires an employer “to pay any judgment entered against the employee for conduct arising out of his employment[.]” (Jacobus v. Krambo Corp. (2000) 78 Cal.App.4th 1096, 1100.) Nor was the policy, in the trial court’s words, “procured not for the benefit of the Defendant rather to protect Defendant’s employer from vicarious liability for the acts of its employees.” As the purpose of Labor Code section 2802 is “to protect employees from suffering expenses in direct consequence of doing their jobs” (Grissom v. Vons Companies, Inc. (1991) 1 Cal.App.4th 52, 59–60), procurement of the insurance policy to cover those losses was a benefit for defendant as much as it was for the employer.

One question remains. The victim restitution order in the criminal case was specifically limited to reimbursement for the victim’s “medical costs,” but the civil settlement amount was intended to resolve all of the civil claims of the victim and his wife, not just the victim’s medical costs. Therefore, on remand, the trial court must determine what portion of the $3 million settlement must be allocated to reduce defendant’s restitution obligation. (Bernal, supra, 101 Cal.App.4th at pp. 165-166; Jennings, supra, 128 Cal.App.4th at pp. 58-59.)

DISPOSITION

The trial court’s order denying defendant’s motion to modify the victim restitution order is reversed, and the matter is remanded for further proceedings to determine what portion of the $3 million settlement must be offset against defendant’s victim restitution obligation.

SCOTLAND , P.J.

We concur:

BLEASE , J.

DAVIS , J.



1 Northstate was defendant’s employer. Short’s Scrap Iron & Metal, Inc. (Short’s) was also named in the civil suit because Short’s was the registered owner of the vehicle that defendant was driving when he collided with DeClusin. Northstate and Short’s are owned by defendant’s parents.

4th California DUI + cocaine = $100,000 Bail

California DUI attorney news

California streets are a bit safer after a Morgan Hill man was arrested on suspicion of California DUI driving under the influence, his fourth California DUI / drunk driving arrest since 2000.

Steve Ariente, 56, was arrested at 9:55 p.m. Thursday after Morgan Hill California DUI police officer David Ray spotted him speeding and weaving through downtown Morgan Hill, California DUI police said. Ray pulled Ariente over, and as he was talking to him, noticed an odor of alcohol on Ariente. When he failed the California DUI field sobriety test, Ariente was arrested and taken to the California DUI police station. He was booked into Santa Clara County Jail Thursday night, according to California DUI defense attorneys.

While going through the California DUI booking process, officers asked Ariente to remove his socks and shoes, which is standard procedure. As he did, a baggie of what appeared to be cocaine fell from his pant leg. The baggie weighed 1.56 grams. His California DUI / drug possession bail was set at $110,000.

California DUI Officers learned through a California DUI records check that Ariente had three prior California DUI / Drunk Driving convictions, one California DUI in 2004 and two California DUIs in 2000.

California DUI Napa Valley monthly report

California DUI attorney news


The Napa Valley Register and napavalleyregister.com publishes monthly statistics on California DUI arrests and California DUI convictions for California DUI driving under the influence — and so-called “wet reckless” convictions — in Napa County.

California DUI Arrest information is from the Napa County Sheriff’s Department. California DUI Convictions, names and blood-alcohol levels are from Napa County Superior Court.

California DUI Convictions include cases in which the person pleaded guilty or no contest to one or more drunk driving charges, or where one or more such charges resulted in a guilty verdict at trial.

Vehicle code violations considered are: driving under the influence (Vehicle Code section 23152), reckless driving while under the influence (23103.5) and causing injury to another while driving while under the influence (23153).

The blood-alcohol levels provided by the California DUI court are based on a variety of tests — some taken at the scene of the California DUI arrest or county jail, others through a later blood test — and have not necessarily been proven or admitted in court. It is unlawful for any person to operate a vehicle if that person has a blood-alcohol level of .08 or more, according to the California Vehicle Code.

California DUI Arrests: 50

California DUI Convictions/pleas: 63

California DUI Reported blood-alcohol below .10 or unavailable: 15

California DUI Reported blood-alcohol between .10 and .19: 34

California DUI Reported blood-alcohol between .20 and .29: 13

California DUI Reported blood-alcohol between .30 and .39: 1


http://www.napavalleyregister.com/articles/2008/03/04/news/dui/doc47cc49b70100d035891514.txt

California DUI for drinking Kava?

California DUI attorney case law news

People v. Olive (2001) 92 Cal.App.4th Supp. 21 [112 Cal.Rptr.2d 687]

Appellate Division, Superior Court, San Mateo

[No. AD-4645.

Jul. 24, 2001.]

THE PEOPLE, Plaintiff and Appellant, v. SIONE OLIVE, Defendant and Respondent.

(Superior Court of San Mateo County, Southern Judicial District, No. SM306891,
Marta S. Diaz, Judge.)

(Opinion by Kopp, J., with Holm, P. J., and Pfeiffer, J., concurring.)

COUNSEL

Hugo Borja for Plaintiff and Appellant.

Rachel Holt for Defendant and Respondent. {Page 92 Cal.App.4th Supp. 23}

OPINION

KOPP, J.-

This appeal involves a legal issue of first impression and continuing public
interest in California.

Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at
1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers.
Requested to walk to the officers' vehicle, respondent displayed difficulty in
maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were
red and watery. He denied drinking any alcohol but stated he had consumed
approximately 23 cups of kava. Asked if he felt any effects from the kava, respondent
replied that he felt "slow and heavy." Immediately thereafter, physical sobriety
tests were administered to the respondent. His performance was flawed. A preliminary
alcohol screening test showed 0.00 percent alcohol in his blood. One of the
officers then arrested respondent after forming the opinion that respondent was under the
influence of alcohol or a drug and his ability to operate a motor vehicle safely
was impaired.

Appellant commenced criminal action against respondent on June 19, 2000, accusing
him of violating Vehicle Code section 23152, subdivision (a). fn. 1 Respondent
moved to dismiss the charge, claiming unconstitutionality of section 23152,
subdivision (a) as applied to him in the circumstances of the case. He alleged the statute
was "overly broad and vague" and its {Page 92 Cal.App.4th Supp. 24} application on
the facts of the case denied him "due process of law." Respondent further
contended section 23152, subdivision (a) provides no notice that driving under the
influence of kava is a crime and that neither by statute nor case law is kava deemed a
drug under section 23152, subdivision (a).

Respondent also moved pursuant to Penal Code section 1538.5 to suppress evidence
from a postarrest urine test. Respondent's motion to suppress evidence was
considered first by the trial court at a hearing in which the arresting officer testified
for appellant and was cross-examined by respondent. The respondent neither
produced any evidence nor exercised responsibility for sustaining the burden of his
motion to dismiss the case. In fact, appellant's evidentiary presentation anent the
motion to suppress evidence and the testimonial hearing thereon were subsumed by the
court's consideration of the motion to dismiss for unconstitutionality. The trial
court denied the motion to suppress evidence and, after considering legal argument
in which the court requested appellant to proceed first, ordered dismissal of the
case, declaring it was doing so, "in this case, under these circumstances, based
on the evidence in this particular record."

[1a] Appellant appeals, claiming dismissal occurred pursuant to Penal Code section
1385 "in furtherance of justice" and that the trial court abused its discretion
thereunder. We reverse, not because Penal Code section 1385's discretionary power
was abused (Pen. Code, § 1385 was not the basis of dismissal), but because (1)
respondent, not appellant, bears the burden in his due process attack of showing
Vehicle Code section 23152, subdivision (a)'s unconstitutionality as applied and
failed utterly to do so, and (2) such showing as was adduced in the motion to suppress
hearing persuades us the statute is constitutional as applied to respondent. As
noted in People v. Archerd (1970) 3 Cal.3d 615, 639 [91 Cal.Rptr. 397, 477 P.2d
421], in which the defendant raised preindictment delay as a violation of his due
process right to a speedy trial, an accused must demonstrate "prejudice or improper
motive by the prosecution ... [and thereafter] the burden shifts to the People to
show that the pre-indictment delay was the result of a valid police purpose."
Similarly, respondent, not appellant, was first obliged procedurally to establish, by
experts or other evidentiary sources, unconstitutional application, after which
appellant could respond.

Since no facts were advanced by respondent concerning unconstitutional application
of section 23152, subdivision (a) to him, he rests his unconstitutionality
argument upon the lack of any judicial decision and omission of a literal statutory
statement that kava constitutes a "drug" within the meaning of section 23152,
subdivision (a). We could remand to the trial court for {Page 92 Cal.App.4th Supp. 25}
failure to compel respondent's execution of his burden to show unconstitutionality of
section 23152, subdivision (a) as applied. [2] We do not do so because
interpretation of a statute and the determination of its constitutionality are questions of
law, absent any factual showing by an accused. As an appellate court, we apply a
de novo standard of review. (People v. Health Laboratories of North America, Inc.
(2001) 87 Cal.App.4th 442, 445 [104 Cal.Rptr.2d 618].)

[3] All presumptions favor the validity of a statute, and statutes "must be upheld
unless their unconstitutionality clearly, positively and unmistakably appears."
(Smith v. Peterson (1955) 131 Cal.App.2d 241, 246 [280 P.2d 522, 49 A.L.R.2d
1194].) A criminal statute satisfies due process so long as it is "definite enough to
provide a standard of conduct for those whose activities are proscribed [citations]"
and "provide[s] definite guidelines for the police in order to prevent arbitrary
and discriminatory enforcement. [Citations.]" (People v. Heitzman (1994) 9 Cal.4th
189, 199-200 [37 Cal.Rptr.2d 236, 886 P.2d 1229].) A statute must give fair
warning and sufficiently inform ordinary people with average intelligence of the acts
it declares prohibited and punishable. (Burg v. Municipal Court (1983) 35 Cal.3d
257, 270-272 [198 Cal.Rptr. 145, 673 P.2d 732].) The defendant in Burg challenged
the then existing 0.10 percent blood-alcohol standard for conviction of a section
23152, subdivision (b) violation, with a vagueness theory that it was impossible
"for a person to determine by means of his senses whether his blood-alcohol level is
a 'legal' 0.09 percent or an 'illegal' 0.10 percent." (Burg, at p. 270.) The court
rejected defendant's curious theory and commented that consumption of a quantity
of alcohol "should notify a person of ordinary intelligence he is in jeopardy of
violating the statute." (Id. at p. 271.)

[1b] Respondent herein contends that without inclusion of kava, in haec verba,
section 23152, subdivision (a) is void for vagueness. Actual notice of each drug
constituting a basis for prosecution under section 23152, subdivision (a) is not
required if a person is reasonably made aware of the proscribed conduct, namely,
impaired driving ability resulting from ingestion of some substance. "It is not required
that a statute, to be valid, have that degree of exactness which inheres in a
mathematical theorem. It is not necessary that a statute furnish detailed plans and
specifications of the acts or conduct prohibited." (Smith v. Peterson, supra, "131
Cal.App.2d at p. 246.)

In People v. Buese (1963) 220 Cal.App.2d 802, 806-807 [34 Cal.Rptr. 102], the
court held not void for vagueness a statute barring transportation of "drugs" into a
county jail. The drug in issue was a hypnotic. The court observed: " 'Drugs' is the
general word used in association with 'narcotics' and 'alcoholic beverages.'
These terms have a number of things in common, {Page 92 Cal.App.4th Supp. 26} included
among which is the fact that they are taken internally and when so taken they
affect the brain, and particularly that function of the brain controlling judgment.
By use of the word 'drugs' it is reasonable to assume the Legislature intended to
include those drugs having similar characteristics. So interpreted hypnotic drugs
are clearly within a much larger group possessing such similarity." (Id. at p.
807.)

As used in section 23152, "drug" is defined by section 312, which declares: "The
term 'drug' means any substance or combination of substances, other than alcohol,
which could so affect the nervous system, brain, or muscles of a person as to
impair, to an appreciable degree, his ability to drive a vehicle in the manner that an
ordinarily prudent and cautious man, in full possession of his faculties, using
reasonable care, would drive a similar vehicle under like conditions."

Omission of kava by its name does not render Vehicle Code section 23152,
subdivision (a) unconstitutionally vague as applied. (People v. Avila (2000) 80 Cal.App.4th
791, 802-803 [95 Cal.Rptr.2d 651]; People v. Keith (1960) 184 Cal.App.2d Supp.
884.) In Avila, a Penal Code section 286, subdivision (i) action, the Court of
Appeal iterated: "A statute provides adequate notice when its 'language conveys
sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practices.' " (People v. Avila, supra, 80 Cal.App.4th at pp. 802-803,
italics added.) No actual substance was (or is) identified in Penal Code section
286, subdivision (i). There, the court held the purpose of the allegedly vague
language in that statute was "to define the crime in terms that clearly warn against
the commission of sodomy on a victim whose ability to resist, ... is prevented by
substances having anesthetic or intoxicating effects ...." (Avila, at p. 798.)

Section 23152, subdivision (a) provides that vehicle operation while under the
influence of a substance other than alcohol which could "affect the nervous system,
brain, or muscles" (§ 312) in such a way as to impair a person's ability to drive
as an ordinarily prudent and cautious man using reasonable care would drive a
vehicle under like conditions is a crime. It describes conduct; it does not purport to
identify particular drugs, and it is not required constitutionally in this case
to do so. (Testimony offered by appellant at the hearing on the motion to suppress
evidence demonstrates respondent was himself aware of kava's effects the very
night of his arrest; he felt "slow and heavy." fn. 2

Because respondent failed to sustain the burden of proof created by his due
process motion to dismiss for unconstitutionality as applied and because {Page 92
Cal.App.4th Supp. 27} section 23152, subdivision (a) in conjunction with section 312
conveys legally sufficient warning about the prohibited conduct, the judgment
dismissing the criminal action against respondent is reversed. The case is remanded for
trial.

Holm, P. J., and Pfeiffer, J., concurred.

­FN 1. All statutory references are to the Vehicle Code unless otherwise stated.

­FN 2. The effects upon his motoring ability were plainly observed by the
arresting officer, who also observed respondent's flawed performance on physical sobriety
tests.

[End_of_Volume 92 Cal.App.4th]

Monday, March 3, 2008

Effects of Fatigue And Other Human Factors Upon Driving Performance

California DUI Attorney news

The Effects of Fatigue And Other Human Factors Upon Driving Performance

Arnedt, Owens, Crouch, Stahl, Carskadon, Neurobehavioral Performance of Residents After Heavy Night Call vs. After Alcohol Ingestion 294(9) JAMA 1025-1033 (2005)

CONTEXT: Concern exists about the effect of extended resident work hours; however, no study has evaluated training-related performance impairments against an accepted standard of functional impairment.

OBJECTIVES: To compare post-call performance during a heavy call rotation (every fourth or fifth night) to performance with a blood alcohol concentration of 0.04 to 0.05 g% (per 100 mL of blood) during a light call rotation, and to evaluate the association between self-assessed and actual performance.

DESIGN, SETTING, AND PARTICIPANTS: A prospective 2-session within-subject study of 34 pediatric residents (18 women and 16 men; mean age, 28.7 years) in an academic medical center conducted between October 2001 and August 2003, who were tested under 4 conditions: light call, light call with alcohol, heavy call, and heavy call with placebo.

INTERVENTIONS: Residents attended a test session during the final week of a light call rotation (non-post-call) and during the final week of a heavy call rotation (post-call). At each session, they underwent a 60-minute test battery (light and heavy call conditions), ingested either alcohol (light call with alcohol condition) or placebo (heavy call with placebo condition), and repeated the test battery. Performance self-evaluations followed each test.

MAIN OUTCOME MEASURES: Sustained attention, vigilance, and simulated driving performance measures; and self-report sleepiness, performance, and effort measures.

RESULTS: Participants achieved the target blood alcohol concentration. Compared with light call, heavy call reaction times were 7% slower (242.5 vs 225.9 milliseconds, P<.001); commission errors were 40% higher (38.2% vs 27.2%, P<.001); and lane variability (7.0 vs 5.5 ft, P<.001) and speed variability (4.1 vs 2.4 mph, P<.001) on the driving simulator were 27% and 71% greater, respectively. Speed variability was 29% greater in heavy call with placebo than light call with alcohol (4.2 vs 3.2 mph, P = .01), and reaction time, lapses, omission errors, and off-roads were not different. Correlation between self-assessed and actual performance under heavy call was significant for commission errors (r = -0.45, P = .01), lane variability (r = -0.76, P<.001), and speed variability (r = -0.71, P<.001), but not for reaction time.

CONCLUSIONS: Post-call performance impairment during a heavy call rotation is comparable with impairment associated with a 0.04 to 0.05 g% blood alcohol concentration during a light call rotation, as measured by sustained attention, vigilance, and simulated driving tasks. Residents' ability to judge this impairment may be limited and task-specific.

Source: www.pubmed.org – A service of the National Library of Medicine and the National Institutes of Health

California DUI conviction list

California DUI attorneys' arrest news

Adler, Denise, 44, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Amail, Jonathon, 28, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender drinking-driver California DUI program, driver's license restricted.

Andrade, Jesus, 50, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, seven days in jail, first-offender drinking-driver California DUI program, driver's license restricted.

Arevalo, Miguel, 52, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 10 days in jail, second-offender drinking-driver California DUI program, driver's license restricted.

Bastida, Jose, 25, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Brophy, Thomas, 28, of Stockton: First California DUI conviction, three years' California DUI formal probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Caracter, Ronald, 41, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 10 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Cardenas, Elizabeth, 29, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender drinking-driver California DUI program, driver's license restricted.

Chruys, Victoria, 45, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, five days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Espinosa, Jessie, 40, of Stockton: First California DUI conviction, three years' California DUI formal probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Estrada, Mariano, 53, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 180 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Fields, Randy, 21, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, 22 days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Foucher, Jennifer, 25, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Fuentes, Armando, 36, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 120 days in jail, second offender California DUI drinking-driver program, driver's license restricted.

Gonzales, Nicole, 23, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Hayes, Garry, 64, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, 10 days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Herrera, Santiago, 24, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Hernandez, Joseph, 33, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 120 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Martin, Joseph, 23, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 10 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Merrill, Sherry, 35, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, 16 days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Mora, Luis, 55, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, 10 days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Morrison, Troy, 40, of Stockton: Second California DUI conviction, five years' California DUI formal probation, $2,323 fine, 12 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Nguyen, San, 20, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Panduro, Lucio, 33, of Stockton: First California DUI conviction, three years' California DUI formal probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Perez, Delrios, 23, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 10 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Perez, Oscar, 22, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, seven days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Reyes, Sergio, 26, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Routt, Donald, 68, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Rim, Johnny, 23, of Stockton: First California DUI conviction, three years' California DUI formal probation, $2,323 fine, seven days in jail, California DUI first-offender drinking-driver program, driver's license restricted.

Thong, Rana, 41, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Thurman, Tanya, 33, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Toress, Efigenio, 51, of Stockton: First California DUI conviction, three years' California DUI formal probation, $2,323 fine, seven days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Sandoval, Patricia, 25, of Stockton: First California DUI conviction, three years' California DUI formal probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Ware, Robert, 28, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

Washington, Prince, 66, of Stockton: Second California DUI conviction, five years' formal California DUI probation, $2,323 fine, 10 days in jail, second-offender California DUI drinking-driver program, driver's license restricted.

Wilson, Sammie, 47, of Stockton: First California DUI conviction, three years' formal California DUI probation, $2,323 fine, two days in jail, first-offender California DUI drinking-driver program, driver's license restricted.

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More preferential DUI treatment claimed in California

California DUI attorney news

Most public service ads about driving under the influence state: Drive over the limit and you will be arrested and you will go to jail. That is, unless you are a celebrity or public official. How many regular folks are taken home by family members after an arrest, as Gustine Police Chief Kris Anderson was? No booking, no night in jail -- no fair!

Sunday, March 2, 2008

History of MADD

California DUI attorney news

Mothers Against Drunk Driving (MADD) - a historical perspective

Mothers Against Drunk Driving (MADD) has arguably been one of the most successful public-health grassroots citizen advocacy organizations in the United States in the past century. In 2005, MADD celebrated the 25th anniversary of its founding. Based on a national poll by the Gallup Organization in 2005, MADD is recognized by 94% of citizens. It is generally given credit for changing American attitudes toward drinking and driving. Since MADD’s founding in 1980, alcohol-related traffic deaths in the United States have decreased from an estimated 30,000 to 16,694 in 2004, according to the National Highway Traffic Safety Administration. This article examines the growth of MADD since its founding and attempts to gauge its contribution to the public’s understanding of the impaired-driving problem and to the reductions in alcohol-related highway deaths and injuries that have occurred in the first 25 years of its existence.


IMPAIRED DRIVING (1900–1966)
Motor vehicle crashes became a problem in the beginning of
the 20th century. Alcohol has been associated with this problem
from the beginning, as is indicated by publication of the
first scientific report on the effect of drinking by operators of
“motorized wagons” in 1904 (Editorial, 1904). The federal government
was a late entrant into the drinking-and-driving field
and provided only a minor amount of research funding until the
establishment of the Department of Transportation (DOT) and
passage of the Highway Safety Act in 1966.
By then the basic scientific foundations of the relationship of
alcohol to highway crashes had been established. The classical
work ofWidmark (1932) in Sweden was the first to establish the
basic relationship between alcohol consumption and blood alcohol
concentration (BAC), and Herman Heise (1934) published
the first-known research on the effects of alcohol on driving.
Robert Borkenstein invented the first practical alcohol breathtesting
device in 1954 (Borkenstein & Smith, 1961) and conducted
the classic so-called “Grand Rapids Study” (Borkenstein
et al., 1964) that determined the relationship between BAC and
crash risk a decade later. Despite the scientific progress, the effect
of this knowledge on the public and public policy in the
United States was modest. The primary organization at the national
level concerned with impaired driving was the National
Safety Council’s (NSC’s) Committee on Alcohol, Drugs, and
Received 17 February 2006; accepted 31 March 2006.
Address correspondence to James C. Fell, Pacific Institute for Research and
Evaluation, 11710 Beltsville Dr., Ste 300, Calverton, MD 20705–3102, USA.
E-mail: fell@pire.org
Traffic Safety, which had a strong influence on state legislation.
With the support of the American Medical Association (AMA),
theNSCCommittee promoted laws that established aBACof .15
or greater as presumptive evidence of intoxication and guided
the states through the process of adopting implied consent laws,
which allow officers to require a chemical test of drivers suspected
of driving under the influence (DUI) with an automatic
loss of license if they refused. Despite NSC’s leadership, however,
most of the key laws—illegal per se laws, administrative
license suspension (ALS) laws, zero-tolerance laws for underage
drivers, and lowering illegal BAC limits—that influenced
drunk-driving law enforcement over the next four decades remained
to be enacted by most of the 50 states.
Perhaps as significant for traffic safety as the limited framework
for impaired-driving law enforcement was the lack of public
understanding of the specific problem presented by drinking
and driving and, for that matter, the traffic crash problem in general.
As Ross (1982) among others noted, during the first half of
the 20th century, crashes were attributed to “driver error.” The
term for such events was “accident,” implying that they were
chance events. The term “accident proneness” was developed
to explain why some individuals were involved in more accidents
than others. Although states, beginning with New York in
1910, had all passed impaired-driving laws, they were generally
termed “drunk-driving laws,” suggesting that only very heavy
drinking was illegal. Impaired driving attracted little attention
from the media and was overshadowed by popular entertainment
that featured films such as Animal House and Arthur and
comedians who found drunkenness a source of humor.
The publication of Unsafe at Any Speed by Ralph Nader
(1965) helped to correct the popular impression that most fatal
195
196 J. C. FELL AND R. B. VOAS
crashes were the fault of the “nut behind the wheel.” It made clear
that limitations in vehicle design played a significant role in highway
injuries andwas an important factor in moving the Congress
to establish the National Highway Safety Bureau (NHSB, the
precursor to the National Highway Traffic Safety Administration
[NHTSA]) as part of the new DOT in 1966. At about the
same time, Haddon (1970), a public-health physician active in
alcohol research, described a matrix approach to traffic safety
that noted three elements involved in crashes—the driver, the
vehicle, and the environment (roadway)—and that safety programs
could be developed for each element in three periods of
time—precrash, crash, and postcrash. That formulation not only
highlighted the complexity of the crash problem, but also took it
out of the realm of chance events and stressed the opportunity for
research to produce effective interventions. Haddon’s work had
a strong influence on the safety field, though it was unknown to
the general public, and he was appointed head of the new federal
traffic safety agency when it was established.
EARLY FEDERAL PROGRAMS (1967–1979)
Although the public and congressional attention was focused
on improving the safety of vehicles, the establishment of the
NHSB and the appointment of Haddon as its first director led
to considerable action directed at impaired drivers. The 1968
Alcohol and Highway Safety Report to Congress (USDOT,
1968) summarized what was known about the relationship of
alcohol consumption to crash risk and focused on the “problem
drinker” as a primary contributor to the problem. This report
provided the basis for the initiation of Alcohol Safety Action
Projects (ASAPs) in 35 U.S. communities to demonstrate the
potential of a comprehensive DUI enforcement and adjudication
program (Levy et al., 1977). Ironically, although the new NHSB
resulted from a movement away from the focus on driver responsibility
to concern with the vehicle/roadway environment,
the first and largest ($88 million) traffic safety demonstration
project ever funded by the federal government focused on the
problem (drinker) driver.
The ASAP program encountered many of the problems that
were exemplified in later “Safe Community” programs. There
was some controversy over the evaluation of the projects (Levy
et al., 1977; Zador, 1977; Johnson et al., 1976); nonetheless,
where any of the local projects succeeded in increasing enforcement
activity, crashes were reduced (Levy et al., 1977). One
enduring legacy from the ASAP effort was the adoption of required
educational programs for DUI offenders as standard court
practice. Under this practice, DUI offenders must attend either a
treatment program or a short educational program as a probation
requirement (Nichols et al., 1978). This procedure was adopted
nationwide, in part because of its low cost to the community, as
the offenders pay for the program.
Following the ASAP program, several smaller demonstration
projects were initiated to evaluate the effectiveness of specific
elements of the DUI criminal justice system, such as the effect
of increasing the number of DUI patrols on weekends (Voas &
Hause, 1987), the potential value of decriminalizing the DUI offense
in order to increase arrests and speed up adjudication, the
prohibition of plea bargaining, and the effectiveness of various
sentencing procedures. Many of the research studies funded by
the NHTSA have been published as governmental reports that
are now out of print. These works are not accessible in the research
literature, but many of them are covered in the reviews of
the literature produced by NHTSA every few years (e.g., Jones
& Lacey, 2002). Out of these projects came several procedures
and devices that enhanced the efficiency of the criminal-justice
system. For example, a list of vehicle maneuvers to alert officers
that the driver was possibly intoxicated was developed, as
was a three-component field sobriety test that could be used at
the roadside and has become the standard field sobriety test nationwide
(Burns & Moskowitz, 1977). Another product of this
period widely used by the courts today is a standardized procedure
for screening DUI drivers to determine the extent of their
alcohol problem (Filkins et al., 1973). Finally, the NHTSA supported
the development of evidential and preliminary breath-test
devices by establishing qualified products lists and providing a
test facility for manufacturers (NHTSA, 1984).
The early work on enforcement, adjudication, and treatment
procedures, as well as the funds flowing to the states through
Section 402 of the Highway Safety Act, has assisted states in
improving their laws and enforcement programs. Evidence of
this is indicated by the increase in DUI arrests that occurred at
the end of the seventies (FBI, 1999). Unfortunately, there was
no concurrent evidence of a reduction in alcohol-related crashes
in the late 1970s. Although the need to evaluate the ASAPs led
to the establishment of the national Fatality Analysis Reporting
System (FARS) in 1975, the current system for estimating the
number of alcohol-related fatalities was not established until
1982 (Rubin et al., 1998). Consequently, there are no comparable
data on alcohol-related crashes for the late 1970s. Total fatal
crashes, however, were increasing at that time, so it is unlikely
that alcohol-related fatalities were decreasing.
What was certainly lacking was public concern with the
drinking-and-driving problem. For some years, the NSC had
been issuing “Don’t Drink and Drive” or “If You Drive, Don’t
Drink” public service announcements (PSAs). Aside from the
limited effectiveness of PSAs in promoting safety behavior
(Wilde et al., 1971), it was unlikely that in a society in which
drinking was a favorite pastime and in which alternative public
transportation was generally lacking, public information
programs alone would have much impact (Ross, 1992). The
NHTSA, in cooperation with the newly founded National Institute
on Alcohol Abuse and Alcoholism (NIAAA), attempted to
mount a national campaign to alert the public to the drinkingand-
driving problem, focusing on the number of people killed
each year.NHTSAalso attempted to support theASAPproblemdrinker
concept by recruiting Hollywood personalities who had
been problem drinkers to participate in PSAs that stressed the
risk presented by individuals who cannot control their drinking.
There is no evidence that any of these approaches convinced the
public that drinking and driving was dangerous.
THE FIRST 25 YEARS OF MADD 197
THE EMERGENCE OF MADD (1980–1982)
In the early 1980s the public’s attitude toward drinking and
driving was substantially transformed. Citizen activism is generally
given credit for this change. In 1978, Remove Intoxicated
Drivers (RID)—the first citizen activist group dedicated
to fighting drunk driving—was established by Doris Aiken in
New York State. But it was not until 1980 that the victim activist
movement began to garner national attention. On May 3,
1980, Candy Lightner’s 13-year-old daughter, Cari, was struck
from behind by a car while walking in the bike lane with her
friend. The driver did not stop. Lightner was informed by the
California Highway Patrol the day after Cari’s funeral that they
had arrested a man and charged him with drunk driving, leaving
the scene of an accident, and vehicular manslaughter. She was
told that he had been out of jail only two days since being arrested
for another hit-and-run drunk-driving crash. His driving
record reflected three other drunk-driving arrests—two resulted
in convictions and onewas reduced to reckless driving. Five days
after her daughter’s death Candy Lightner and some friends decided
they should start an organization of some kind to fight
against drunk drivers. A friend suggested they call it “MADD”
for Mothers Against Drunk Drivers (Wilkerson, 2003; Weed,
1987).
Coincident with those developments on the West Coast, a
newspaper reporter named Sandy Golden was calling attention
to another drunk-driving victim, Cindi Lamb, who also was attempting
to combat this problem. Cindi Lamb had been struck
by a drunk driver (who was a repeat offender) in 1979 that paralyzed
her five-month-old daughter, Laura, from the neck down.
With the help of Bill Bronrott, press secretary to Maryland Congressman
Michael Barnes, Golden brought Lightner and Lamb
together for a news conference with Congressman Barnes. That
news event created a good amount of public attention to the
impaired-driving problem, and resulted in Cindi Lamb establishing
the first chapter of MADD in Maryland. Soon, the media
routinely began to contact Ms. Lightner for comments as highprofile
drunk-driving cases occurred (Wilkerson, 2003).
NHTSA’s national office became active in assisting Lightner
and Lamb at press events. In October 1980, Lightner and Lamb
held a national press event along with Congressman Barnes, Senator
Claiborne Pell of Rhode Island, Joan Claybrook (the Administrator
of NHTSA at that time), and Congressman Robert
Matsui from Lightner’s home district. Before the press event,
some MADD activists marched around the White House carrying
placards. Coverage of this protest by the press put MADD
on the nation’s radar screen. By the end of 1980, additional
MADD chapters had been formed in California and Maryland
(Wilkerson, 2003).
MADD was incorporated on September 5, 1980, as a California
corporation. By June of 1981 it had achieved IRS tax-free
status; later in the year, it received more than $100,000 in private
funding and $60,000 from NHTSA to support chapter development.
Articles on the organization appeared in the Los Angeles
Times and Family Circle, and Lightner appeared on national television
as a guest on both the Today Show and the Phil Donahue
Figure 1 Number of News Stories on Drunk Driving, 1979 to 1986 (Volume
of National Newspaper and Periodical Coverage of Drunk Driving by Year.
Newspaper volume based on count of stories in the [National Newspaper Index
includes the New York Times, the Los Angeles Times, the Wall Street Journal,
and The Washington Post]). Periodical volume based on the Magazine Index).
Show. This launchedMADDas the leading national advocate organization
concerned with impaired driving (Wilkerson, 2003).
THE GROWTH OF IMPAIRED-DRIVING PROGRAMS
(1980–1994)
Concurrent with the growth in national attention to the victims
of drunk driving and the founding and growth of MADD,
media coverage of alcohol safety issues increased substantially
(Figure 1), as did the number of DUI laws being considered by
state legislatures (Figure 2). During this period state legislatures
also increased the severity of the penalties for impaired driving.
Key Congressional legislation, sponsored by Congressman
Michael Barnes of Maryland and Jim Howard from New Jersey,
provided incentive grants for states that adopted proven enforcement
strategies and measures that strengthened laws designed
to deter impaired driving. These measures included laws that
made it illegal per se to drive with a BAC of .10 or greater and
ALS laws that provided officers with the authority to confiscate
licenses of DUI offenders at the time of arrest.
Figure 2 Number of drunk-driving laws passed by states from 1981 to 1986.
198 J. C. FELL AND R. B. VOAS
In part due to the stimulus provided by the emergence of the
impaired-driving activist movement and by active supporters in
Washington, D.C., such as Sandy Golden and Bill Bronrott, the
U.S. Congress called on the White House to establish a Presidential
Commission on Drunk Driving. In April 1982, President
Reagan took that action by announcing the formation of
the Commission; MADD was invited to participate. By the end
of 1982 there were governor-appointed DUI task forces in 16
states. MADD chapters and particularly MADD state organizations
were active in pushing the introduction of new legislation
and supporting its passage by lobbying state legislators and officials.
Beginning in 1988 with funding from the NHTSA,MADD
conducted a series of state workshops for citizen activists, police
officers, judges, and prosecutors to promote the need for
strengthened DUI laws and more intensive DUI enforcement
(Wilkerson, 2003). A major enforcement issue for NHTSA and
the nationwas “sobriety checkpoints,” which have been shownto
be highly effective in producing general deterrence to impaired
driving (Elder et al., 2002), but were viewed as unconstitutional
by some legal authorities. Their legalitywas affirmed by the U.S.
Supreme Court in the Michigan State Police v Sitz case in 1990,
in which MADD participated by submitting an amicus curiae
brief.
Perhaps most importantly during this period, Congress with
support from the scientific community and MADD and it’s allies
in the Congress enacted the national minimum legal drinking
age (MLDA) law that required states to pass legislation establishing
a prohibition against sale of alcohol to youths aged
20 and younger (Toomey et al., 1996). In July 1984, President
Reagan signed into law the Federal Minimum Legal Drinking
Age 21 (MLDA 21) Act. Senator Frank Lautenberg from New
Jersey, Congressman Jim Howard from New Jersey, Elizabeth
Dole (Secretary of Transportation at that time), Chuck Hurley
from the NSC (and currently the Chief Executive Officer for
MADD), and Bill Bronrott (from Congressman Michael Barnes
staff and currently an elected Maryland Delegate), as well as
others, worked closely with Candy Lightner and the MADD
activists to build support for this law.
In 1988, based on a Congressional resolution, President Reagan
established the U.S. Surgeon General’sWorkshop on Drunk
Driving that, for the first time, brought together public health and
traffic-safety scientists and advocates (USDHHS, 1988). This
group, in which MADD was an active participant, called attention
to the significance of environmental factors, such as alcohol
availability and advertising on impaired driving.
STALLED PROGRESS IN REDUCING ALCOHOL
FATALITIES (1995–2005)
With the great increase in media attention to the impaireddriving
problem and the surge in alcohol legislation in the 1980s,
there was a heartening reduction in alcohol-related fatal crashes
between 1980 and 1995 (NHTSA, 2004). This encouraged the
setting of ambitious goals for alcohol-safety programs. For its
10th anniversary in 1990, MADD produced a “20 by 2000”
plan that set a goal to reduce alcohol-related traffic fatalities
by 20% in the following decade—a goal that actually was met
three years early in 1997. In 1995, Secretary of Transportation
Frederico Pe˜na called a national meeting—“Partners in
Progress”—in which MADD played a very prominent role as
it established many of the agenda items (NHTSA, 1995). The
meeting set an even more ambitious national goal for the reduction
of alcohol-related crashes: reduce alcohol-related fatalities
to 11,000 a year by 2005. Unfortunately, the 17-year decline in
alcohol fatalities came to an end in 1997, and in 2005—the 10th
anniversary of the new national goals—alcohol-related traffic
fatalities remain between 16,000 and 17,000.
Despite the discouraging lack of progress in reducing alcoholrelated
fatal crashes, the last decade has seen the passage of important
new alcohol-safety legislation in which MADD played
a significant role through its state offices and congressional education
activities. Among the more significant pieces of legislation
was the zero-tolerance law that made it illegal for underage
drivers to operate a vehicle with any amount of alcohol in their
bodies. This new law was a natural complement to the existing
national MLDA 21 law under which it was illegal for a person
younger than 21 to drink alcohol (Hingson et al., 1994; Voas
et al., 2003). The National Highway System Designation Act
of 1995 (23 USC § 161, 1995) provided sanctions for states
that failed to enact a zero-tolerance law by withholding a portion
of their federal highway construction funds. By June 1998
all states had enacted legislation that complied with the federal
zero-tolerance criteria: 12 states and the District of Columbia
set the limit at .00, two states at .01, and 36 states at .02.
Another of the most significant legislative achievements advancing
alcohol safety during this period was the passage of
legislation lowering the illegal BAC limit from .10 to .08. Beginning
in the 1970s, the DOT used its authority under the Highway
Safety Act of 1966 to encourage states to adopt illegal per
se laws specifying .10 BAC as the legal limit defining impaired
driving. From the outset of the movement to adopt .10 BAC as
the national standard, there were advocates for even lower BAC
levels. In 1986, DOT formally advocated a lower illegal limit
by including a .08 BAC law as one of the regulatory criteria for
a supplemental alcohol traffic safety grant under the program
authorized by the U.S. Congress (23 USC § 408). By 1983, this
movement toward a lower BAC limit had resulted in Oregon and
Utah enacting .08 laws; similar legislation was enacted in Maine
in 1988, California in 1990, and Vermont in 1991.
Beginning in 1992, the growing evidence for impairment at
lower BAC levels (Zador et al., 2000; Moskowitz & Fiorentino,
2000) and for the effectiveness of the .08 limit (Hingson et al.,
1996;Voas et al., 2000a; Hingson et al., 2000; Shults et al., 2001),
as well as MADD’s efforts with state legislators, induced 10 additional
states to adopt .08 BAC per se laws by 1998: Kansas and
North Carolina (1993); Florida, New Hampshire, New Mexico,
andVirginia (1994); Alabama and Hawaii (1995); and Idaho and
Illinois (1997). However, the movement toward a national standard
of .08 BAC was slowed by the strong opposition from the
alcohol and hospitality industries, claiming that the lower limit
THE FIRST 25 YEARS OF MADD 199
would impact social drinking. This led to the introduction of a
bill by Senator Frank Lautenberg of New Jersey and Congressman
Frank Wolf of Virginia that called for the withholding of
a portion of the federal highway construction funds from states
that did not enact .08 legislation.
On June 15, 2000, the Senate passed H.R. 4475 (the DOT
Appropriations Bill for Fiscal Year [FY] 2001) that, through the
threat of sanctions, encouraged states to adopt .08 BAC laws by
FY 2004. The final .08 BAC bill (Section 351) was adopted by
Congress and signed by the President shortly after that (23 CFR
§ 1225, 2000). MADD played a prominent role in pushing the
legislation, including the convening of a “Youth Summit” of 435
young people from every congressional district gathering on the
Capitol steps in Washington, D.C., to visit their representatives
and promote the passage of the .08 limit. Newresearch on the .08
BAClimit has confirmed its effectiveness (Dee, 2001; Eisenberg,
2001; Bernat et al., 2004; Tippetts et al., 2005).
MADD also played a key role in the adoption of administrative
license revocation (ALR) and ALS laws, which have proven
to be an effective general deterrent to impaired driving (Voas
et al., 2000a). Throughout the 1990s, MADD officials were key
members of the Administrative License Revocation Coalition,
which was established to work toward the adoption of ALR and
ALS laws in the states. During the 1990s, 17 states adopted
ALR/ALS laws to add to the 24 states already with these laws,
at least in part due to the efforts by MADD.
Increased penalties for repeat DUI offenders also were enacted
during this period. The Transportation Equity Act for the
21st Century (TEA-21) was passed by the Congress in 1998.
MADD played a significant roll in supporting the section of the
act that provided for a minimum license suspension of one year
for second DUI offenders, as well as impoundment of the offender’s
vehicle or installation of an alcohol ignition interlock
on the vehicle. States were required to adopt such legislation or
face a transfer of funds from highway construction to highway
safety programs. Both vehicle impoundment (Voas&DeYoung,
2002) and alcohol interlocks (Willis et al., 2005) have proven to
effectively reduce DUI offender recidivism.
REASONS FOR THE GROWTH OF MADD
The rise of the drinking-and-driving activist movement in the
early 1980s led to the formation of several citizen-activist organizations,
such as RID, MADD, and Students Against Driving
Drunk (SADD), together with the establishment of the Presidential
Commission on Drunk Driving and its successor the National
Commission Against Drunk Driving (NCADD). All of these organizations
played a role in the development of public policy
in the impaired-driving area. Over the last 25 years, however,
they have followed different organizational paths. The reasons
why MADD has emerged as the best known of these entities
has interested scholars and activists. MADD was not the first
such organization. RID had been founded in 1978, two years
before the advent of MADD, and had several community units
in the New York State area by the time MADD arrived on the
scene. The Presidential Commission was formed shortly after
MADD was founded and had the full support of the federal government
during its 18-month action period. It was followed by a
succeeding organization (NCADD) sponsored by a broad crosssection
of the U.S. industry. All four of these organizations have
contributed to traffic safety and are still active today; however,
MADD has the largest membership and is the best known to the
public (Gallup Organization, 2005).
The growth of MADD has attracted the attention of a number
of social scientists: Weed (1993), McCarthy and Crishock
(1996), McCarthy and Wolfson (1996), Reinarman (1988), and
Marshall and Oleson (1993). Some researchers have attributed
the emergence of MADD to the charismatic personality of its
founder, Candy Lightner (e.g., Weed, 1993), and certainly she
played a prominent role, particularly after NBC produced a
movie on her life in 1983. MADD did enjoy the advantage of
a very photogenic, outspoken leader who rapidly became proficient
at using the public media to spread MADD’s message
(Weed, 1993; Reinarman, 1988).With this initial leadership and
the support of public-media experts from the broadcast industry
and the federal government, MADD developed a strong capability
to respond effectively to the growing press interest in the
drinking-and-driving problem. The MADD president provided
what had generally been missing in the past—a ready source of
comment for reporters on alcohol-related highway deaths and
a personification of the drunk-driving problem by a prominent
victim.
Other scientists, such as McCarthy and Crishock (1996) and
Reinarman (1988), have suggested that funding and general support
from the hospitality industry played an important role because
they saw MADD’s policies as focused on “killer drunk
drivers” and not on normal social drinkers. Reinarman noted
that the alcohol industry’s interest in blaming the problem on
the deviant driver, to deflect attention away from the full range
of problems related to alcohol consumption, moved them to
support MADD in its early years. Whatever affinity the alcohol
industry felt for the MADD objectives, there is little evidence
that alcohol industry financial support had a significant influence
on the growth of the MADD organization. The only alcohol industry
gift to MADD came from Anheuser-Busch. Reported to
be $175,000, it actually only amounted to $50,000 in cash when
the in-kind components failed to materialize. This support did
not materialize until 1983, well after much larger (more than $1
million) and more crucial contributions were received from insurance
industry leaders andNHTSAin 1981(Wilkerson, 2003).
The issue as to whether MADD profited from indirect support
or lack of opposition from the hospitality industry is difficult to
determine because there are no useful measures of that assistance.
MADD may have initially enjoyed a period during which
it was not strongly opposed by the industry; however, in the
1990s, when it expanded its program to include lowering the
legal limit, it encountered considerable opposition from alcohol
interests that remains to this day.
Reinarman (1988) suggested that the conservative political
climate represented by the Reagan presidency contributed to the
200 J. C. FELL AND R. B. VOAS
rise of MADD because its message stressed the immorality of
drunk driving and the individual’s responsibility for avoiding
that criminal act, which fit well with that administration’s conservative
law-and-order philosophy. This suggestion also is difficult
to evaluate objectively. Clearly, the public’s sympathy for
injured children can be readily aroused and the drinking driver
is an easy target, but it is not clear why that message should
resonate more under conservative governments because liberal
governments are reputed to be more supportive of federal action
in the health and safety area.
Much of the reasoning related to the emergence of MADD is
based on anecdote and opinion because there is relatively little
research evidence directly relating the organizations’ activities
to public knowledge and drinking and driving. Four conjectures
can be offered for MADD’s emergence as the leading grassroots
organization in the impaired-driving area:
• The “placing of a face on the traffic injury problem.” As noted,
media campaigns directed at the alcohol safety problem before
1980 had failed to move the public to action. Reports
of thousands of victims were just statistics and were ineffective
because numbers are too impersonal to convey the toll
on victims’ lives and their families. Appeals to avoid drinking
and driving without the public first accepting that there was a
problem were, for the most part, ignored.MADDnot only personalized
the traffic-crash victim, but also focused attention
on the most appealing of the victims—children—that caught
the attention of the media and the public.
• Governmental assistance. In the early 1980s, NHTSA’s special
effort to promote community involvement in the trafficsafety
problem included providing staff to support the emerging
citizen-activist movement. NHTSA provided technical
assistance on alcohol-safety laws and research and provided
introductions to members of Congress, existing safety organizations,
and the press that MADD leadership could exploit
more successfully than other emerging groups at that
time.
• Recruitment of national experts. Although it caused considerable
tension and stress within the organization and contributed
to the loss of its founder, MADD was ultimately successful
in bringing onto its national board and into its national
office experts in citizen-activist organization, traffic safety,
legislation, lobbying, media, and fundraising, while maintaining
a strong role for victims in the governance of the
organization.
• Effective victim services. MADD appears to have been particularly
successful in developing a strong victim-services
organization as evidenced by its continuing substantial support
from the Department of Justice, Office for Victims of
Crime. This served as an important recruiting base for its
membership. In addition, the MADD leadership was effective
in bringing forward the families of victims to present
their stories, which received wide coverage in the press, increasing
its name recognition and supporting its fund-raising
efforts.
McCarthy andWolfson (1996) have provided a relatively detailed
analysis of the growth and characteristics of the two best
known drinking-and-driving activist organizations: MADD and
RID. They note that between 1979 and 1985, MADD received
far more national publicity than RID. MADD activists at the
local level had the advantage of approaching communities that
already were aware of MADD and its goals. They characterized
MADD as a top-down organization, noting its stronger
control over membership requirements by the national office
compared to the bottom-up organization of the more loosely affiliated
RID community groups. The MADD chapters tended
to have larger mailing lists and budgets that were five times
higher than their RID counterparts. The authors conclude that
three factors account for the differences between MADD and
RID: (1) the selection effects from MADD’s more stringent criteria
for group chartering; (2) greater interest and enthusiasm
for MADD groups due to the wide popularity and knowledge of
MADD; and (3) the direct chartering of the organization and its
leaders, which motivated individuals to become associated with
a highly prestigious national organization.
Weed (1993, pp. 330–333) has provided a sociological analysis
of the early history of MADD based on the work of
Weber (1964), pointing to the traditional conflict among
founders of reform movements who gain authority from their
victimization experiences. They attract other advocates to an organization
that is not highly structured and where no one has an
office, but all are answering a “call to action.” In such organizations,
the leader has full authority, and the unit is held together
by a common passion for the cause (Weber, 1964, p. 360). The
problem presented by such organizations is that to grow they
must raise funds and deal with the complexities of fund-raising
regulations and taxation. This requires standard business practices
and procedures that may lead to a modification of goals or
the setting of new goals for the organization (McCarthy et al.,
1991). This, in turn, results in recruiting specialists in finance
and administration into the organization who might support the
objectives of the organization but do not share the passion of the
victim’s experience or motivation.
Weed (1993), who had access to MADD staff and records
during the period from 1984 to 1987, applied this social-science
theory to what he saw as the conflict in the early history of
MADD between the National Board of Directors and the charismatic
founder, Candy Lightner. He saw a part of the conflict as
resulting from outside pressures from such organizations as the
Better Business Bureau, but, ultimately, he concluded it was the
inability of charismatic leadership to work with administrative
structures. He gives Lightner a great deal of credit for MADD’s
legislative successes and building the organization, which by
the time she left MADD in 1985, had grown to 360 chapters.
Nonetheless, he leaves the picture of an organization bereft of
its engine, with some threat to its continued existence.
Unfortunately, Weed’s analysis ended at that point and thus
failed to follow the full development of the MADD organization
beyond 1985. MADD ultimately developed into a large,
highly organized national entity while preserving much of its
THE FIRST 25 YEARS OF MADD 201
charismatic element. The organization that evolved in the years
immediately following Lightner’s resignation established a governing
board of directors. Initially, most of the directors were
drawn from the business world and were not localMADDmembers;
however, following Lightner’s departure, chapter members
became the majority on the board. As is the case for most large,
nonprofit organizations, MADD employs an executive director
who manages the central office staff with specialists divided into
several departments (e.g., field issues, programs, public policy)
and reports to the Chairman of the Board. Recently, the new
executive director of MADD has been given the title of Chief
Executive Officer, further distinguishing that position from the
national president, who is the chief spokesperson for MADD.
The central office staff supports local chapters and conducts national
programs. A key feature of MADD’s public-media program
is the president, who is always a victim member of the
organization. The president fills the role of chief spokesperson
for MADD and management of the central office is left to the
executive director. This preserves the authority and passion of
the public face of the organization without placing the burden
of managing a large national staff on a victim volunteer.
A part of this organizational growth and transformation, not
recorded byWeed, was the development of a strong support program
for the victims of impaired drivers.Aunique 21-hour training
program was developed to assist members in supporting victims
and helping them deal with the courts and with their physical
and psychological injuries. Currently, MADD has 1,200 victim
advocates trained under that program, 1,100 of whom are volunteers
(100 are paid by MADD). Though less well known to the
public than its campaign for stronger DUI laws, it was MADD’s
service to victims that helped ensure a growing membership.
McCarthy and Wolfson (1996) found that victim services are
strongly related to membership. In 2003, MADD provided service
to more than 27,000 victims, and in 2004 served more than
31,000 victims of alcohol-related crashes.
Aside from developing a very professional model for assisting
impaired-driving crash survivors and victim families, the organization
promoted victims’-rights legislation to ensure that state
victim-compensation laws included victims of drunk drivers.
MADD also has supported a National Victim Rights Amendment
to the Constitution. MADD was the first organization to
develop a formal program that used victims in an intervention
effort with individuals convicted of crime. The organization is
currently involved withVictim Impact Panels (VIPs) in 190 communities.
VIPs are designed as a therapeutic experience for the
victims and an opportunity for convicted DUI drivers, most of
which have not yet been in a crash, to understand the injuries that
their behavior can inflict on other road users. Although Shinar
and Compton (1995) found some evidence for the effectiveness
of VIPs, other studies did not support their results (e.g., Polacsek
et al., 2001). These results, however, do not reduce the potential
importance of VIPs to the recovery of the victim.
Also not recorded by Weed—because it occurred somewhat
after his study—was the integration of researchers into the development
of MADD’s public-policy program. As noted in the
Figure 3 Cumulative growth in the number ofMADDchapters, 1980 to 2004.
beginning of this article, alcohol safety is a complex field requiring
programs that deal with alcohol availability and consumption,
as well as drinking and driving itself. To establish a broad
base of national support, it was necessary for MADD to develop
public policies beyond the focus of increasing sanctions for impaired
drivers. This program expansion, which included not only
underage drinking but also support for responsible beverage service
and sales practices and safety belt legislation, was considered
essential to MADD accomplishing its mission to eliminate
impaired driving. However, this expansion had to be accomplished
without it appearing to the public that MADD was diluting
its primary mission and without diminishing the support
of the volunteer members. MADD achieved this transition by
inviting researchers to serve on the national board, establishing
the position of vice president for public policy, and adopting the
position that no policy action would be supported unless there
was scientific evidence for its effectiveness.
Thus, MADD moved rapidly from a small local group with
no formal structure in 1980 to a highly structured national
organization with revenues of almost $50 million by 1990
(Wilkerson, 2003). McCarthy and Wolfson (1996) attributed
much of MADD’s success to its organizational ability and its effectiveness
in attracting members and funds. The resulting rapid
expansion in the number of chapters is shown in Figure 3 and the
increased revenues are shown in Figure 4. This growth was in
Figure 4 Growth in total MADD revenue, 1984–2004.
202 J. C. FELL AND R. B. VOAS
contrast to the RID organization (www.rid-usa.org) that was the
principal alternative victims’ organization to MADD. RID, although
making important contributions to the impaired-driving
effort, remained an affiliation of more local, autonomous entities
under the leadership of the founding members with a limited
number of local chapters and limited national visibility.
The McCarthy and Wolfson study provides an interesting
comparison between an organization that retained its initial,
purely volunteer character and its original charismatic leader
(RID) and one that went through a considerable transformation
(MADD). MADD established a strong central administration,
encompassing policies not in its original charter while taking
steps to preserve the passion exhibited by its founder, Lightner,
who was no longer with the organization. Despite some financial
crises along theway and premature obituary announcements
(Marshall & Oleson, 1993), MADD has become a unique organization
that other activist groups might profit from emulating.
The management of the organization is vested in the board, comprised
of a majority ofMADDmembers from local chapters and
a professional executive director who manages the central office
staff. The MADD president is relieved of administrative duties
and thus is freed to act as a full-time spokesperson for the organization.
The absence of its charismatic founder has allowed
other victim members of MADD to represent the organization
to the nation. This experience has demonstrated the power of the
message—the personal stories of loss and grief—in obtaining
legislative action and public support. In 2005, for the first time,
a male victim was elected to the presidency of MADD.
MADD POLICY DEVELOPMENT
During its 25-year history,MADDhas dealt with many issues
central to highway-safety policy while developing its own program.
An understanding of its efforts as a victims’ organization
in dealing with the wide rage of critical and controversial issues
in the traffic-safety and public-health fields can be instructive to
similar organizations and to public-health researchers. Unfortunately,
most of this activity is undocumented. However, both the
authors have served on the MADD National Board in different
periods of time beginning in 1982 to the present, covering most
of the organization’s existence, and can provide some observations
based on that experience. A brief review of some major
issues will assist both in understanding theway in whichMADD
grew into its present status and in evaluating its achievements.
A few of the developmental issues encountered over the 25-year
history of the organization can be described.
Individual Versus Systems Approach
The attention of victims is naturally drawn to the drunk driver
and his or her conviction and sanctions. Therefore, MADD policies
naturally and necessarily focused on the criminal drunk
driver when it was first established. However, this emphasis
is reminiscent of the “nut behind the wheel” approach to traffic
safety in the first half of the 20th century. That impaired
drivers cause crashes is not doubted. Alcohol-related incidents,
however, are influenced by a multiplicity of factors: those in
the criminal justice system, such as safety campaigns, driver licensing,
traffic-law enforcement; those in the alcohol regulatory
system, such as alcohol sales taxes and beverage-service practices;
and those in the drinking-and-driving environment, such
as alcohol advertising and alternative transportation strategies.
Public-health researchers, such as Holder (1987) andWagenaar
and Farrell (1989), and criminologists, such as Ross (1992),
have focused on environmental factors central to the long-term
challenge of reducing alcohol problems including drinking and
driving. To encompass the broader field of environmental prevention
it was important to avoid a limited focus on the “killer
drunk” (Gusfield, 1981).
A critical concern of any organization is to maintain its identity
and stay on target. Early in its history, MADD was faced
with a focus on the individual offender versus the environmental
prevention issue when it became involved in the movement
to raise the drinking age to 21. This issue clearly falls into the
realm of alcohol regulation, but also is definitely related to underage
impaired-driving crashes (Wagenaar & Wolfson, 1994;
Shults et al., 2001). Lightner recognized this relationship and,
although this threatened a dilution of the MADD mission of focusing
on drunk drivers, led the organization to strongly support
the measure. Over time, MADD broadened its support to other
alcohol-safety issues, such as zero-tolerance laws for youth and
.08 per se laws, as well as programs related to alcohol sales. This
broadening of the MADD agenda was institutionalized when
in 1985 the name was changed from Mothers Against Drunk
Drivers to Mothers Against Drunk Driving.
Position on Drinking Versus Drinking and Driving
From its inception, MADD was faced with the conflict between
measures to control drinking and driving and policies and programs
to control alcohol consumption. This problem was a part
of the individual versus systems approach just discussed. There
is substantial evidence that alcohol availability, particularly to
youth, is related to the frequency of impaired-driving crashes
(Wagenaar&Holder, 1991, 1995). It was inevitable thatMADD
would be challenged to take positions on such issues as underage
drinking, alcohol taxation, and alcohol advertising. Moreover,
even if such issues could have been entirely avoided, purely
traffic-safety policies, such as lowering the illegal BAC limit
to .08, brought MADD into conflict with most of the alcohol
and hospitality industries. Some representatives of the alcohol
industry saw that as an attack on their core clientele of “social
drinkers” (Pe˜na, 2003). MADD has attempted to maintain the
distinction between its opposition to drunk driving and advocacy
of the responsible use of alcohol by adults. It is often difficult to
maintain such a separation in public statements when research
suggests that any measurable amount of alcohol affects performance
(Moskowitz et al., 1985, 2000). Thus, the “best practice”
is no driving after any drinking, a message that provokes a response
that the speaker is a neoprohibitionist (Pe˜na, 2003).
This issue of MADD’s position on drinking, as opposed to
impaired driving, became a focus of the political controversy
THE FIRST 25 YEARS OF MADD 203
over the reduction of the legal limit from .10 to .08 in the period
leading up to action by the U.S. Congress in 2000. Using
a BAC prediction system (NHTSA, 1994) to estimate the BAC
of a small woman and large servings of wine consumed rapidly
on an empty stomach, spokespersons from the alcohol industry
claimed that two glasses of wine could result in an .08 offense
(Pe˜na, 2003). The alcohol industry, and particularly the Century
Council, also promoted the concept of the “hard core drinking
driver” from Simpson, Mayhew, and Beirness (1996), which
suggested that the emphasis in drinking-and-driving programs
should be placed on drivers with high BACs in the .15 or higher
range rather than those with low or moderate BACs. Thus, they
claimed that MADD was focusing on social drinkers rather than
the problem drinkers at highest risk for crash involvement. The
issuewas further sensitized by theAMAcalling for lowering the
illegal BAC to .05. This supported the alcohol industry’s contention
that the .08 limit was just the first step in the direction
of lowering the legal BAC to .05 (the current level in most of
Europe) or even to .02 (the current level in Sweden). Although
MADD spokespersons have never advocated moving to the .05
level, some representing the alcohol industry pushed the view
that “The road to neo-Prohibition proceeds along two lines of attack.
First, anti-drunk-driving advocates aim to steadily decrease
the amount of alcohol a motorist can consume before becoming
a criminal. Second, the movement works to ever expand the
settings where any drinking of alcohol beverages is verboten”
(Pe˜na, 2003, p. 7). Although MADD succeeded in promoting
the passage of a Congressional mandate to the states to adopt
.08 per se laws and all 50 states and DC now have such laws, the
problem of fending off claims that it is “prohibitionist” remains.
Punitive Versus Remedial Measures for Drunk Drivers
When their loved ones have been seriously injured or killed, the
victims naturally demand severe sanctions for the offenders. An
early goal of MADD public policy was to demand jail terms for
first offenders as well as multiple DUI offenders. In the 1960s
and 1970s sanctioning of DUI offenders by the courts was relatively
lenient, even to the extent of avoiding license suspension
in many cases. Appropriately, MADD supported more substantial
penalties to strengthen general deterrence and to prevent
convicted offenders from immediately getting back on the road.
Thus, MADD played an important role in encouraging states to
lengthen the periods of license suspension and to adopt ALS
laws.
The call for jail for first offenders and increased jail time for
multiple offenders was more controversial. The jail sanction can
be seen as having what Ross (1984) has called a short-term “general
deterrence” impact on potential drunk drivers and a longterm
“educational” component (Andenaes, 1974) for society as
a whole that characterizes impaired driving as a crime. Thus, jail
had a potential role to play in combating the public disregard
of the drinking-and-driving problem before 1980. However, jail
space is limited and the cost of confinement to the community
and the criminal-justice system is high, as noted in a study of the
California legislation requiring jail sentences for first offenders
by Kinkade and Leone (1992). Although there is some evidence
(Zador et al., 1988) that jail is effective in producing general
deterrence, that evidence is compromised by the fact that most
state laws mandating incarceration provide for the substitution
of community service due to the lack of jail space. Further, there
is no evidence that serving jail time reduces future recidivism
(Voas, 1985). Consequently, MADD has accepted the limitations
of jail for first offenders; although, it continues to support
longer license suspension periods. However, MADD’s position
on jail sentences for multiple offenders remains unchanged. Despite
its initial punitive focus, MADD also has come to support
improved treatment programs for offenders as it has accepted
the evidence that offenders, particularly multiple offenders, exhibit
drinking problems (Wells-Parker & Williams, 2002) and
that court treatment programs are effective (Wells-Parker et al.,
1995).
Participation in Safety-Belt Campaigns
The prevention of impaired driving and the use of safety belts
are two of the three most important driver-behavior issues related
to crash injury (along with excessive speed). Early in its
history, MADD’s effort to keep on message was challenged by
the issue of supporting safety-belt messages and particularly
safety-belt laws. Many national organizations adopted safety
belt laws as a central element of their programs and the NHTSA
initiated programs to encourage states to adopt primary enforcement
safety belt laws, so there was not a direct need for MADD
to be involved. Even so, there are a number of possibilities for
combined enforcement campaigns such as checking safety-belt
use at sobriety checkpoints and detecting impaired drivers during
nighttime safety-belt usage enforcement activities. Initially,
some were concerned that this would dilute MADD’s drinkingand-
driving message, but, ultimately, these concerns were resolved
by promoting safety belts as the best protection for potential
victims against the drunk driver. This ability to assume
other key safety measures within the MADD mission was probably
an important factor in keeping the organization within the
mainstream of the highway-safety movement.
Integration of Youth Programs into MADD Activities
Early support for the MLDA 21 law represented MADD’s first
major step toward broadening its original focus on the criminal
drunk driver. This commitment was carried forward in its strong
support for the national zero-tolerance law. This law established
a legal base for reducing the availability of alcohol and controlling
underage impaired driving and also presented a challenge
to MADD for the inclusion of youth in its activities, particularly
in the areas of alcohol safety and enforcement of underage
drinking-and-driving laws.
A national organization of youth called “Students Against
Driving Drunk” developed independently. In the early nineties,
the two organizations entered into discussions of the possibility
of an amalgamation (Wilkerson, 2003). This did not occur for
a number of reasons, but clearly a central issue was that the
SADD leadership was uncomfortable with strongly supporting
204 J. C. FELL AND R. B. VOAS
theMLDA21 and zero-tolerance laws.SADDwent on to change
its name to “Students Against Destructive Decisions,” and its
focus is primarily on peer-to-peer education programs.
Consequently, theMADDleadership still needed to develop a
system for mobilizing underage youths concerned with impaired
driving. Its approach was to develop an outreach program—
Youth in Action (YIA)—to youths. This program established
youth groups (principally at the high-school level) sponsored by
localMADDchapters. The YIA program partners young people
with adult leaders in the community to work toward “environmental”
prevention strategies. Projects focus on strengthening
enforcement of underage drinking laws and policy change. YIA
teams have been trained in more than 40 communities across the
country. These young activists have proved to be particularly effective
in drawing the attention of the press and community
members to the underage drinking problem. Their partnerships
with local law enforcement agencies, schools, and community
leaders have helped to promote local enforcement programs and
support key underage-drinking legislation (Fell, 2004).
The power of young activists also was mobilized at the national
level through a NationalYouth Summit conducted in 2000.
The summit had a potentially significant effect on the congressional
passage of the .08 BAC limit. This effort to recruit youth
involvement culminated in the establishment of a youth position
on MADD’s National Board in 1998 and in 1999 and the modification
of MADD’s mission statement “The mission of Mothers
Against Drunk Driving is to stop drunk driving and support the
victims of this violent crime” to include the words “and prevent
underage drinking” (Wilkerson, 2003).
Coordinating Policy with Research
A large number of policies and programs can influence impaired
driving. Several of these policies (such as ALS laws, .08 laws,
andMLDA21 laws) have been evaluated, and their effectiveness
has been well documented. Other measures have not been evaluated
or have been poorly assessed. In the rapidly developing
technological area dealing with impaired driving, new devices
and measures touted to be effective in preventing or reducing
injuries appear regularly. Only recently has the Centers for Disease
Control and Prevention (CDC) initiated a coordinated effort
to assess major countermeasure programs (Shults et al., 2001).
As with other organizations, MADD has been repeatedly faced
with decisions about which programs to support and the level of
effort that should be devoted to their promotion.
Such issues arrived early for the MADD leadership. Some
of the policies growing out of the victims’ concern with strong
penalties for drunk driving, such as jail terms, were difficult
to implement and not as well supported by research as other
policies, such as ALS and MLDA 21. To meet the need for
expert advice on program priorities, MADD leaned heavily on
the NHTSA’s research and program staff and a few outside scientists.
In 1990, MADD Public Policy Committee Chairman,
Beckie Brown, convened an advisory group of scientists to develop
recommendations for action over the next decade titled
“20 by 2000.” This group provided a set of priorities based on
the best research available at the time and provided consulting
services on program issues as they arose (Brown et al., 2004).
The general success of that program led to the national board
adopting the principle of only supporting laws and policies for
which there was scientific evidence of effectiveness. The reliance
on scientific information to guide policy and program
planningwas further institutionalized by providing two positions
on the national board for research specialists. In recognition of
MADD’s efforts to coordinate policy based upon scientific research,
the International Council on Alcohol, Drugs and Traffic
Safety (ICADTS) presented the MADD organization the prestigious
Widmark Institutional Award in 1995. In recognition
of Ms. Brown’s individual efforts, she was given the Haddon
Award in 2004 by ICADTS for advocating “scientifically-based
changes in public policy which have reduced the adverse effects
of alcohol or other drugs on traffic safety.”
Increasing Membership Diversity
The founders of the drunk-driving activist movement initially
tended to be White and, for the most part, early chapters were
formed by White middle-class victims. Because a major source
of new members for MADD was the service that members provided
to the victims of alcohol-related traffic crashes, and because
this activity had to be highly sensitive to the stress that the
families of crash victims were under, itwas natural that members
could bond best with individuals most like themselves. Consequently,
MADD grew into a predominantly White organization
and experienced some difficulty in providing victim services to
minorities. The MADD National Board recognized this limitation
and in 1997 established a diversity task force with the objective
of strengthening the minority membership of MADD. This
led to the development of a permanent position on the national
office staff for a Diversity Coordinator. In 1999, in conjunction
with the NHTSA,MADDsponsored a National Diversity Forum
in Florida, to which the leaders of the nation’s major minority
organizations were invited. This movement toward diversity is
critical to MADD’s continued growth, because research indicates
that certain minorities, such as Hispanics, are more involved
in drinking and driving and alcohol-related crashes and
minority involvement in this problem will grow as they become
a larger part of the driving population (Voas et al., 1998, 2000b).
In 2004, of the 15,346 new victims served by MADD—where
the ethnicity of the victim was known—15% were Black, 13%
were Hispanic, and 69% were White (MADD, personal communication
from the MADD National Office, Irving, Texas, 2005).
At the present time, theMADDnational president is an African-
American male.
Influencing State Programs
Funds for state traffic-safety programs are managed through the
state offices of highway safety and are under the control of the
Governor’s Highway Safety Representative. In the early days
of the Highway Safety Act, NHTSA regional administrators
exercised considerable influence over state expenditures under
their authority to review and approve the annual safety plans
THE FIRST 25 YEARS OF MADD 205
submitted by the state directors. Over time, resistance by some
state officials to submitting the plans for review and approval resulted
in the abolishment of that requirement in favor of requiring
the state to go through a prescribed planning process without the
detailed approval process. This resulted in less federal influence
on state safety programs. NHTSA might have strengthened its
influence by establishing some national performance criteria for
rating state programs, but the agency apparently determined that
thiswas not practical given the political sensitivities surrounding
the distribution of highway safety funds.
The MADD leadership became concerned that, as a result
of the weakening of federal influence over state highway-safety
expenditures, support for alcohol-related countermeasure programs
was decreasing. Consequently, MADD began to provide
regular appraisals of the adequacy of state highway-safety programs.
This involved considerable political risk, as low assessments
were likely to antagonize state officials and the failure to
be critical risked a lack of credibility. The availability of the core
group of researchers and highway-safety specialists brought together
by Brown to develop the “20 by 2000” plan provided the
basis for designing a comprehensive survey of state impaireddriving
countermeasure programs. The survey was conducted
by the state MADD chairman or public-policy specialist by contacting
state officials and gathering information on state laws,
programs, and traffic statistics.
In 1991, MADD launched its “Rating the States” (RTS) program,
which became a continuing series of reports (MADD,
1991–2005) that provided a letter-grade score in nine impaireddriving
program areas: DUI laws, DUI enforcement, DUI sanctions,
underage-drinking programs, victims’ issues, political
leadership, state traffic-records systems, regulation and control
of alcohol sales, and alcohol-related fatality trends. Each report
was released at a national news conference that garnered extensive
coverage by the news media. Individual state press events
also were held. As expected, some state officials were outraged
when their state programs received low grades. Nonetheless, in
several states, the news coverage stimulated action by the governor
or the state legislature to adopt much needed legislation
(Russell et al., 1995).
Much of the information that went into the RTS program
was qualitative, thus making it less usable for program evaluation.
Despite this limitation, Shults et al. (2002) found that
the RTS grades that the states received were associated with
self-reported impaired driving in those states. This association
betweenMADDstate grades and a measure of alcohol-impaired
driving was calculated using multiple logistic regression analyses
on the Behavioral Risk Factor Surveillance System (BRFSS)
survey data from each state. Those living in states with aMADD
grade of “D” were 60% more likely to report driving after drinking
too much than those living in states that received an “A”
grade from MADD. The association was for both men and
women. These findings suggest that stronger state-level DUI
laws, enforcement, and programs are associated with reductions
in alcohol-impaired driving (Elder et al., 2002).
These policy adaptations to the ongoing federal and state program
activities appear to have helped MADD broaden its base
while still maintaining its identity as the premier victims’ organization
concerned with impaired driving. Had the organization
not been able to incorporate the broader objectives growing out
of traffic safety and public-health research, itwould have had difficulty
obtaining the support of government agencies and other
related safety organizations.
EVIDENCE FOR THE EFFECTIVENESS OF MADD
Press reports and statements by governmental officials and
safety activists provide a vast amount of qualitative evidence for
MADD’s effect on the impaired-driving problem in the United
States (Gladwell, 2001). However, crashes are a function of a
complex set of factors that makes the evaluation of any intervention
effort difficult. Attempting to assess the effect of the
wide variety of programs and policies sponsored or promoted
by MADD over 25 years using objective data is clearly difficult
to accomplish with any precision. This is particularly true
as many organizations (NHTSA, NSC, RID, state and local officials,
and individual industries) are working toward the same
goals, so teasing out the relative contribution of each organization
is clearly not possible. Perhaps the best analysis can be made
by considering the factors that enter into the general model for
predicting crash involvement. There is general acceptance of the
relationship between laws, their enforcement, and public education
on driver perceptions of the risk of being caught for DUI and
punished which affect public attitudes toward impaired driving.
These perceptions and attitudes are, in turn, related to crash involvements.
Thus, the causal model (Figure 5) may be useful in
analyzing the potential effect of MADD’s programs on crashes.
Legislation
MADD played a major role in the strong growth of impaireddriving
legislation shown in Figure 2. Merki and Lingg (1987)
concluded that MADD had been a major force behind the adoption
by the states and communities of eight effective impaireddriving
strategies. Perhaps the six most important pieces of alcohol
safety legislation in state legislatures in the last quarter
century were (1) MLDA 21 laws, (2) zero tolerance for youth
laws, (3) .08BAClimit laws, (4)ALSlaws, (5) illegal per se laws,
and (6) increased sanctions for repeat DUI offenders. MADD
played a central role at both the national and the state levels in
obtaining the passage of the first three laws, as was indicated
by the MADD president being invited to speak at the formal
signing of each of the bills. MLDA 21, zero-tolerance, and .08
laws were the only pieces of safety legislation for which the
Congress authorized the withholding of highway safety funds
from states that did not enact the legislation. MADD’s role
in the other three legislative areas also was substantial. The
movement of the states to illegal per se laws was already underway
before MADD was founded, but MADD support hastened
the adoption of the legislation during the 1980s and 1990s.
Figure 5 Model of major elements in law enforcement programs to reduce
alcohol-related crashes.
206 J. C. FELL AND R. B. VOAS
MADD played a direct role in the drafting of the TEA-21 legislation
that strengthened the sanctions for repeat DUI offenders.
MADD’s role in the adoption of ALS laws was previously
discussed.
Enforcement
At the community level,MADDchapters have supported policeenforcement
activities by demanding strong DUI enforcement
and acknowledging police efforts through annual awards to the
officers who make the most DUI arrests. At both the local and
national levels, MADD has supported sobriety checkpoints. At
the national level they have supported special incentive funding
for checkpoints under Section 410 of the Highway Safety
Act. They also submitted an amicus curiae brief in support of
checkpoints when the U.S. Supreme Court reviewed the issue
in the Sitz case. FBI crime-record data (Figure 6) indicate that
DUI arrests began to rise in 1978, before the advent of MADD,
indicating that the effort of the NHTSA to provide new tools for
the police and to finance DUI enforcement programs through the
Highway Safety Act was beginning to pay off. However, DUI
arrests reached their peak between 1982 and 1992, the years in
which MADD was most visible and politically active, so it is
probable that MADD was important in sustaining this rise in
enforcement activity.
Although Ross and Voas (Ross, 1982; Ross & Voas, 1990)
noted that the probability of apprehension is the most important
factor in producing deterrence, the severity of the sanction
and the speed with which it follows the arrest also are important
factors in deterrence. At the beginning of the 1980s, DUI
offenders were frequently given relatively light sentences. The
driver involved in the death of Candy Lightner’s daughter was a
three-time offender. Thus, from the beginning of the movement
there was active concern with court-sentencing practices. Consequently,
MADDdeveloped an active court-monitoring process
that Compton (1988) credited as having a positive effect on the
adjudication of DUI offenders. Additionally, MADD actively
supported efforts at the state level to pass ALS laws, which have
been shown to be associated with crash-injury reductions (Zador
et al., 1988; Voas et al., 2000a) and gave such legislation high
priority in its RTS program.
Figure 6 Estimated DWI arrests in the United States (1978 to 2003).
Publicity
Figure 1 clearly shows a major increase in media coverage
of the drunk-driving issue beginning in 1980. Most observers
(McCarthy et al., 1987) have given credit to victim activist
groups, particularly MADD, for this sudden increase in press
coverage. As noted, MADD has maintained a public-relations
capability to respond rapidly to print and electronic media inquiries
through statements and interviews with its president.
Although media coverage has declined since the early 1980s,
MADD still has kept the issue before the public, particularly
in connection with holiday periods and highly publicized crash
events and by responding to attacks on MADD supported programs
by some of their critics.
Deterrence
Surveys shortly after MADD’s founding indicated a reduction in
reported drinking and driving. The Harris polling organization
reported that its annual national survey of U.S. adults showed an
increase in respondents who said they never drink or never drove
after drinking from68%in 1983 to74%in 1986 (Howland, 1988,
p. 169). The CDC also reported reductions in reported impaired
driving in its state behavioral risk surveys. The percentage of
respondents who reported “driving after drinking too much”
decreased from 5.5% in 1984 to 4.5 % in 1986/1987 (CDC,
1986a, 1986b, 1987).
More recent surveys have shown a continuing public awareness
of the drinking-and-driving problem. Unfortunately, there
have been no completely comparable drinking-and-driving surveys
that cover the period from 1980 to the present. NHTSA
has conducted biannual national surveys since 1990. These surveys
indicate little change during the 1990s in the percentage
of U.S. residents who report driving within two hours of drinking
in the past year (Royal, 2000), despite the change in trend
in alcohol-related fatal crashes (Figure 7). The role of MADD
in producing deterrence to drinking and driving is difficult to
determine. However, two national Gallup surveys conducted in
the early 1990s indicated that 71% of the public recognized
MADD’s name unaided and, when the term MADD was recognized,
95% perceived that it was effective in reducing drunk
driving (Gallup, 1993, 2000, 2005). This suggests that, at least
Figure 7 Percentage of reduction in fatally injured drinking drivers and
pedestrians and per capita alcohol consumption in the U.S. from 1982 baseline
year.
THE FIRST 25 YEARS OF MADD 207
Figure 8 Percentage of weekend nighttime drivers with positive BACs on
U.S. roads.
by the second decade after its founding, MADD was having an
impact on the public’s view of impaired driving.
Impaired Driving
National surveys of weekend nighttime drivers on U.S. roads
were conducted in each of the last three decades of the 20th
century. The results of these surveys (Figure 8) provide strong
evidence of a substantial reduction in impaired driving in the
United States between 1973 and 1996 (Voas et al., 1998). The
point at which the downward trend from 36.1% of drivers with
positive BACs in 1973 to the 25.9% in 1986 cannot be determined,
so the role of MADD in this change is unclear, though
it is likely based on the trends in publicity and DUI laws, much
of which occurred after 1980. The reduction between 1986 and
1996 clearly occurred during the period in which MADD had
established itself as the leading advocate organization with chapters
throughout the country. The decade from 1986 to 1996 corresponds
to a period after which much of the early surge in legislation
peaked (see Figure 2) and was in place in many states,
presumably having an effect on impaired driving.
Alcohol-related Crashes
One study (McCarthy & Ziliak, 1990) that has attempted to directly
measure the MADD contribution to crash reduction was
limited to the state of California during the years from 1982
to 1985. Using data from state crash files and the number of
MADD chapters, the authors concluded that the incidence of
DUI crashes in a locality increases the probability that a MADD
chapter will be established in the community and that the presence
of a MADD chapter significantly reduces the number of
DUI injury crashes. McCarthy and Ziliak also confirmed the
expectation that a higher level of enforcement activity reduced
alcohol-related injury crashes.
A more qualitative estimate of the impact of MADD on
crashes can be deduced from the trend in alcohol-related fatal
crashes. The FARS is a census of all fatal crashes on U.S.
roadways since 1975, but the current system for estimating
alcohol-related fatalities was not initiated until 1982. Based on
the NHTSA imputation system (Subramanian, 2002), alcohol-
Figure 9 Total U.S. highway fatalities 1975 to 1985.
related traffic fatalities have declined from 26,173 in 1982 to
16,694 in 2004, a 36% decrease, whereas non-alcohol-related
traffic fatalities have gradually increased from 17,772 in 1982 to
25,942 in 2004, a 46% increase. Similar percentages for 1975 to
1982 are not available, but as shown in Figure 9, the total annual
number of traffic fatalities during that period increased during
the last half of the 1970s, peaked in 1979 and 1980, but declined
in 1981 and 1982. Thus, there is no indication of a significant
reduction in alcohol-related fatalities before 1981. Beginning in
1982, the percentage of all fatally injured drivers and all fatally
injured pedestrians who had had been drinking (with positive
BACs) declined from 1982 through 1995 and then leveled off
for the next decade (Figure 7). The reduction in the percentage
of fatally injured drivers who were drinking was substantially
greater than that experienced for fatally injured pedestrians. The
percentage reduction in fatally injured drivers with alcohol also
was greater than the percentage reduction in per capita alcohol
consumption. This suggests that the change in national alcohol
consumption that might have produced much of the reduction in
fatally injured drinking pedestrians did not account for the larger
reduction in impaired driver deaths. Because MADD targeted
drivers, not pedestrians or drinking in general, this difference
supports the hypothesis that it had an effect on drinking-driver
deaths and injuries beyond that which might be accounted for
by the observed reduction in alcohol consumption.
The reduction in alcohol-related fatalities following the emergence
of victim-activist groups supports the hypothesis that they
had an important affect on highway safety in the 1980s. The
continuation of substantial reductions into the early 1990s when
MADDemerged as the primary victim-activist organization suggests
that it had the primary influence on the observed reduction.
It is estimated that more than 300,000 lives have been saved due
to the reduction of alcohol involvement in fatal crashes from
60% in 1982 to 39% in 2004 (Table I).
However, to accept the hypothesis that MADD was partially
responsible for the observed reductions requires a comparison
set of data not influenced by a victim-activist organization. Because
alcohol-related fatalities in other industrialized countries
also were reduced during the 1980s (Sweedler et al., 2004),
the interpretation of the relationship of MADD to the reduction
in alcohol-related fatalities in the United States must be
guarded.
208 J. C. FELL AND R. B. VOAS
Table I Lives saved due to the reduction of alcohol involvement in fatal traffic crashes from 1982–2004, source: Fell (1995)
Estimated Total
Alcohol-Related Non-Alcohol- Fatalities if Lives Saved due
Total Fatalities Related Fatalities Alcohol-Related to Reduction in
Traffic had Remained at Alcohol in Fatal
Year Fatalities % Number % Number 1980 Level Crashes
1982 43,945 60% 26,173 40% 17,772 43,945 —
1983 42,589 58% 24,635 42% 17,954 44,395 1,806
1984 44,257 56% 24,762 44% 19,495 48,205 3,948
1985 43,825 53% 23,167 47% 20,658 51,081 7,256
1986 46,087 54% 25,017 46% 21,070 52,100 6,013
1987 46,390 52% 24,094 48% 22,296 55,132 8,742
1988 47,087 51% 23,833 49% 23,254 57,500 10,413
1989 45,582 49% 22,424 51% 23,158 57,263 11,681
1990 44,599 51% 22,587 49% 22,012 54,429 9,830
1991 41,508 49% 20,159 51% 21,349 52,790 11,282
1992 39,250 47% 18,290 53% 20,960 51,828 12,578
1993 40,150 45% 17,908 55% 22,242 54,998 14,848
1994 40,716 43% 17,308 57% 23,408 57,881 17,165
1995 41,817 42% 17,732 58% 24,085 59,555 17,738
1996 42,065 42% 17,749 58% 24,316 60,126 18,061
1997 42,013 40% 16,711 60% 25,302 62,564 20,551
1998 41,501 40% 16,673 60% 24,828 61,392 19,891
1999 41,717 40% 16,572 60% 25,145 62,176 20,459
2000 41,945 41% 17,380 59% 24,565 60,742 18,797
2001 42,196 41% 17,400 59% 24,796 61,313 18,881
2002 43,005 41% 17,524 59% 25,481 63,007 20,002
2003 42,884 40% 17,105 60% 25,779 63,744 20,860
2004 42,636 39% 16,694 61% 25,942 64,147 21,511
TOTAL LIVES SAVED 312,549
If the proportion of alcohol-related fatalities had stayed the same as 1980–1982, lives saved per year could be calculated by converting the 40% non-alcohol-related
to decimal .4044147 and dividing the non-alcohol-related fatalities each year by this decimal. As in 1983, non-alcohol-related fatalities were 17,954. If divided by
the decimal .4044147, the estimated total fatalities if the proportion had remained the same would be 44,395. Taking the 44,395 and deducting the actual 1983
fatalities of 42,589 would result in a figure of 1,806 lives saved. This same formula would be used for each year. Alcohol-related fatalities from 1982–2004 are
from the new FARS Imputation Method.
The relationship of MADD activities to news coverage, state
DUI legislation, the reductions in impaired drivers on the road,
and the alcohol-related fatalities described herein have generally
persuaded researchers that MADD should receive substantial
credit for the reductions in alcohol-related highway injuries in
the United States. Aside from the McCarthy and Ziliak (1990)
study that found a measurable relationship between the presence
of a MADD chapter and a reduction in DUI-related injury
crashes, Merki and Lingg (1987) concluded that MADD
has been a major force behind whether states and communities
adopted eight effective impaired-driving strategies. Marshall and
Oleson (1996) described the beneficial effects of MADD’s victim
services, and McCarthy andWolfson (1996) concluded that
an affiliation with MADD appears to energize local leaders in
countering drunk driving. Compton (1988) found a preliminary
effect of the adjudication of DWI offenders due to MADD’s
court-monitoring program.
Although the focus of most evaluations of MADD have been
on the extent of its impact on alcohol-related crashes, ironically,
its most important impact may have been on the public’s attitude
about drinking itself. MADD played an important role
in the passage of the national MLDA 21 law. O’Malley and
Wagenaar (1991) demonstrated that youths growing up in states
with such laws drank less once they came of age than did youths
from states where the drinking age was lower than 21. By making
impaired-driving socially unacceptable MADD created a
standard for consumption and a credible basis for those who
choose not to drink to provide the socially condoned excuse that
“I am driving.” Although publicizing the impaired-driving problem
has not resulted in drivers avoiding drinking, it has placed
pressure on those that might otherwise consume more heavily. It
is possible that the campaign against drinking and driving, with
greater enforcement and more severe sanctions for offenders, has
had an impact on alcohol consumption. Data from youths leaving
heavy-drinking locations (Lange et al., 2006) have demonstrated
that, relative to passengers, patrons who are drivers have lower
BACs.
Apotentially unintended negative consequence of the success
of the anti-drunk-driving campaign, compared to other public
health educational efforts, is that, although the public recognizes
the driving risks involved in heavy drinking, they have failed to
appreciate other alcohol-related health risks, such as nontraffic
injuries, violence, and risky sexual behavior. This is manifested
in parents who preside at teen beer parties under the impression
that as long as they confiscate the car keys and keep the youths
from driving, the young people are safe (e.g., Balko, 2005).
THE FIRST 25 YEARS OF MADD 209
LOOKING TO THE FUTURE
MADD’s 25th anniversary came approximately 40 years
after the initiation of federal efforts in the field of alcohol
safety with the establishment of the NHTSA. During that time
alcohol-related fatalities have decreased by at least 35%. That
is a substantial success, but the failure over the last decade to
make substantial progress is disappointing. Given the relatively
strong criminal-justice framework constructed over the last four
decades, a critical question for the future is “What remains to
be done?” In the1980s when MADD was founded, the alcohol
safety infrastructure at the state level was incomplete. Many
states lacked the basic foundations of an alcohol-safety legislative
system, including illegal per se laws, ALS, MLDA 21 laws,
and zero-tolerance laws. Most states had established relatively
high BAC limits for driving at .10 or .15, and the sanctions for
DUI offenders were lowor compromised by plea bargaining and
unregulated diversion programs. Currently, all states have age
21 MLDA, zero tolerance, and .08 laws, and most states have
the other elements of a comprehensive alcohol traffic safety legal
system. A key problem currently is the lack of effective enforcement
of these laws. It has proved to be easier for organizations
such as MADD to encourage states to pass laws than to motivate
state and local governments to provide the resources to support
their enforcement.
Impaired-Driving Goal
MADDhas responded to the lack of progress over the last decade
by setting a goal to reduce the percentage of drunk drivers in
fatal crashes by 25% over the next three years (2006–2008).
In 2003 (the last year of available detailed data when MADD
established this goal) 42,509 people were killed in traffic crashes
in the United States. Drivers who were legally drunk (i.e., BACs
of .08 or greater, the limit in every state) were involved in 31%
of those fatal crashes, resulting in 13,045 fatalities. By focusing
on five key strategies MADD believes that rate can be cut by
25% from 31% to 23% over the next three years. If the 25%
reduction goal can be achieved, 3,261 lives would have been
saved in 2003, for example.
MADD, with its partners, has proposed five strategies to meet
that goal: (1) working with law enforcement to promote highly
publicized, frequent sobriety checkpoints or similar enforcement
methods in each state; (2) working to achieve high levels of
safety belt use in each state, including the enactment of primary
safety belt laws in the 26 states that do not have such laws;
(3) supporting the development and use of effective technology,
such as alcohol ignition interlocks on vehicles to prevent impaired
driving byDUIoffenders; (4)working to improve theDUI
criminal-justice system performance and accountability, including
the reinstitution of court monitoring by MADD volunteers;
and (5) promoting effective alternative transportation programs
to prevent drunk driving. It remains to be seen whether these
strategies will have an effect on the problem.
Underage-Drinking Goal
It is a mark of the growth of MADD since its origin in 1980
that, in addition to an impaired-driving goal, it has set a goal for
reducing underage binge drinking (five or more drinks in a row
for men and four or more for women in the past month). The
objective is to reduce by five percentage points the 31% of 16
to 20 year olds who report binge drinking (SAMHSA, 2004).
Although MADD supports all of the recommendations from
the Institute of Medicine report on underage drinking (Bonnie
and O’Connell, 2003), MADD plans to focus on two strategies:
(1) work with police departments to strengthen the enforcement
of MLDA 21 laws and (2) support and ensure adequate
resources for a national media campaign on underage drinking
focused on the adults. Most alcohol obtained by underage
drinkers is through adults older than 21 and, in many instances,
the parents.
To be successful in this endeavor, MADD plans to build on
recent research funded by the NIAAA (Grant & Dawson, 1997;
Hingson, Heeren, Zakocs, Winter, & Wechsler, 2003) demonstrating
the impact of early onset of drinking on adult drinking
and driving-and-drinking problems.
More difficult still will be the reduction of binge drinking on
the college level. Despite substantial efforts to reduce college
drinking problems, Hingson and colleagues (2005) estimated
that each year 1,400 college students between the ages of 18 and
24 die and 500,000 are injured from alcohol-related causes. In
a more recent article, Hingson and colleagues (2005) reported
that alcohol-related injury deaths increased from 1,400 to 1,700
between 1998 and 2001, indicating that high-risk drinking at
colleges and universities is increasing. Consequently, there is
still pressure from some college administrators and the media to
repeal the age 21 drinking limit (Seaman, 2005). Bills to repeal
age 21 laws have been introduced in the legislatures of Vermont,
Wisconsin, and Louisiana. MADD may find that a substantial
effort will be needed to keep the Congress from rolling back the
minimum drinking age. The organization that, when founded,
was focused on the criminal drunk driver, has moved to make
the reduction of underage drinking—the spawning ground for
the problem—into one of its’ major objectives for the future.
Thus, MADD may be taking on a problem more difficult than
impaired driving.
Victim Services Goal
As indicated earlier, a major source of strength for MADD is
its highly developed program of service to the victims of drunk
drivers. Its Victim Assistance Program had more than 1,200
trained victim advocates and, in 2004, assisted more than 31,000
victims and survivors of impaired-driving crashes nationwide, a
15% increase from 2003. Marshall and Oleson (1996, p. 6) have
recognized the program as “filling a cultural void and providing a
way for people to manage and channel their grief inways that are
psychologically healthy and socially constructive.”Weed (1987)
noted that victim activists gain status and experience that facilitates
their playing leadership roles—leadership that MADD has
harnessed in building its local chapters (McCarthy & Wolfson,
1996). MADD has set a goal of increasing the number of victims
served by at least 20% a year through 2008, an important
objective to its continued growth.
210 J. C. FELL AND R. B. VOAS
CONCLUSION
There is considerable evidence that MADD has made a difference
in the United States regarding alcohol-impaired driving.
MADD has contributed to the public’s view that drunk driving
is socially unacceptable. MADD has played an important
role in encouraging state legislatures to enact more effective
impaired-driving laws and has been a prominent player in landmark
federal legislation (MLDA21, zero tolerance, .08 BAC per
se). Because of these accomplishments, there are now official
MADD affiliations in Guam, Puerto Rico, Canada, Sweden, and
Japan.
MADD’s best-kept secret is its service to victims. More than
31,000 victims were served by MADD in 2004 with emotional
support, victim assistance, and court accompaniment. Currently,
41,000 of MADD’s 67,000 active members, and an unknown
number of contributors, are alcohol-related crash victims. Because
the source of their motivation for the cause is direct experience,
and not the varying waves of public opinion, they form
the bedrock of the organization for the future.
Since 1999, when it added preventing underage drinking to
its mission statement, MADD has provided strong support for
the enforcement of drinking-age laws, which unfortunately are
in a very similar stage as was drunk driving in this country in
the 1960s and 1970s—illegal but tolerated. That must change if
long-term progress is to be made in reducing impaired-driving
and other alcohol-related problems. MADD is attempting to
meet this challenge, just as it did the impaired-driving problem
25 years ago.
ACKNOWLEDEGMENTS
Some of the information on the history of MADD was summarized from
a document written by Dean Wilkerson, former Executive Director of MADD.
Information coming from that unpublished document is acknowledged by reference
to it in the article. We recognize Dean’s hard work and dedication to
MADD during his tenure. Partial support for this article was provided by a grant
from the NIAAA (K05 AA014260).

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