Los Angeles DUI Defense Law Blog

The Second Court of Appeals has ruled that red light camera ticket evidence is inadmissible.  In the case of People v. Borzakian the Court of Appeals held that the State did not lay a proper foundation for the admission of the red light photos.  Before any evidence can be admitted the proponent must lay a foundation, that is show that the evidence is what it purports to be. The State can not do that where, as in the photo evidence, their officer is not the one who personally maintains the camera.

The Court reasoned that the police officer did not and could not properly authenticate the procedure used to maintain the camera.  Because the City of Beverly Hills contracted to Redflex (the camera manufacturer/maintainer) the maintenance, the Beverly Hills records could not be considered business records.

Prior to the appellate court ruling in Borzakian there were two opposing red light camera cases.  People v. Khaled from the Orange County Appellate Division held that the photos were inadmissible.  People v. Goldsmith from LA County Appellate Division held that they were admissible. The Second District followed the holding in Khaled and rejected the holding from Goldsmith.  The Court points to the weakness in Goldsmiths' argument that a photo is a writing and therefore hearsay in California law.  The only thing that Evidence Code Section 1552 does is say the printer worked, not that what was printed is an accurate representation of the video.

In a footnote, the Court of Appeal addressed Borzakian's other issue: the Confrontation Clause. The Court noted that the Redflex evidence has as its primary purpose the of establishing prior events potentially relevant to a criminal prosecution (Bullcoming v. New Mexico) and is therefore testimonial, triggering the confrontation clause. This is dicta as the Court relies on the lack of foundation to overturn the conviction and doesn't have to reach the confrontation issue.

If you or someone you know has an issue with red light cameras, evidential foundations, confrontation or any DUI/Criminal related issues do not hesitate to contact me at (213) 479-5322.

In Los Angeles and throughout the country, police reports and stories in the media often take a similar perspective with regard criminal charges. But sometimes a report or a story fails to offer precisely the information a prosecutor would need to make a strong case against a defendant. Likewise, a solid criminal defense must use any lack of evidence to show that an accused person is not guilty of the crimes with which he or she is charged. With these issues in mind, readers in Los Angeles will be interested in a recent DUI case involving two elderly people from Azusa.

Police have charged a 74-year-old Azusa man with DUI after his vehicle apparently struck a 76-year-old Azusa woman as she was crossing a street. The woman was flown to a Los Angeles County hospital, where she was later pronounced dead.

Here is my review of the 2011 cases affecting DUI arrests:

Bullcoming v. New Mexico: The U.S. Supreme Court finds the confrontation clause is violated when an expert who neither performed nor observed the DUI chemical test testifies.  Also, the test results are not admissible as business records because the document was created solely for evidentiary purposes.

People v. Thomas: Cops stop Thomas for trumped up traffic stop.  Cops initiate DUI investigation, including giving Thomas PAS test.  Thomas passes, PAS, is released.  Cops use saliva from mouthpiece of PAS device to test Thomas' saliva against burglary they suspected him of committing.  Saliva admissible because Thomas could have wiped off saliva, he therefore gave up his legitimate expectation of privacy to the saliva on the mouthpiece.

People v. Vangelder: Defense expert testifies that breath sample collects alcohol up and down windpipe and in mouth, therefore reading is not accurate because sample is not comprised entirely of alveolar air.  Held: Expert can testify to this and its relevant to both .08 or above count and driving while ability impaired count.

People v. Alvarado: Lack of publication by itself doesn't render DUI checkpoint stop illegal, but lack of publication combined with other factors can.

People v. Carmona: If no other vehicle is affected by turn even if driver doesn't signal within 100 feet of turn, a stop for this reason is illegal and suppression is required.

Petrus v. DMV: License suspension reversed because defense counsel didn't receive blood test result until minutes before the DMV hearing.

People v. Nottoli: Arrest for being under the influence of controlled substance provides police with reasonable basis to search for evidence of that offense.

People v. Ferguson: Driver has legitimate expectation of privacy in car's black box data.

If you have questions concerning these cases from 2011 affecting DUI arrests and other areas of criminal law, do not hesitate to call me at (213) 479-5322 or visit my website.

In U.S. v. Jones, the Supreme Court ruled on Fourth Amendment challenge to GPS. In Jones, the FBI and DC police installed a GPS on Antoine Jones', a DC nightclub owner, car.  They used the GPS data to follow Jones around for a month.  The cops used the information they gathered to obtain a search warrant. The cops used the search warrant to seize lots of cocaine and money.  The cops used the money and cocaine to prosecute Jones.

Jones' lawyer moved to suppress the evidence seized as a result of the GPS information (the fruit of the poisonous tree) as the GPS was placed on the car without a warrant. [There actually was a warrant, but it was only valid for 10 days and only allowed the GPS to be placed on the car in DC.  The cops waited until the 11th day and placed the GPS on in Maryland.] The Government argued that they did not need a warrant to attach the GPS. The DC District Court sided with the Government because, they held Jones did not have a reasonable expectation to privacy in the GPS data and allowed introduction of the evidence.  The Defendant appealed, the appellate court reversed, the Government appealed to the Supreme Court.

A majority of the justices of the Supreme Court hold that (1) the Fourth Amendment is violated when someones property, person or effects are intruded upon and Jones is car is an effect; and (2) that since the jurisprudence of the fourth amendment is based on common law notions of trespass and the cops putting the GPS on Jones' car was a trespass.

This holding seemingly expands the protections of the fourth by reinvigorating the pre-Katz intrusion as trespass doctrine and because five of the justices held also keeping 'legitimate expectation of privacy in the area searched' alive and well.

If you have a search and seizure issue in your DUI or other criminal case call me at (213) 479-5322 or click here to visit my DUI website or here to visit my general criminal website.