An 18-year-old Montrose woman was arrested on suspicion of driving under the influence after a major car accident in North Glendale. Police say the young woman attempted to pass another car on a turn, and her vehicle collided with a light pole and then a tree, causing the car to flip onto its roof.
]]> The two passengers in the car were able to crawl out, but the young driver was trapped inside. Rescuers from the Glendale Fire Department had to remove her, and she was taken to Huntington Memorial Hospital to be treated for injuries.Police claim the young woman admitted that she and her friends had been drinking earlier in the evening, and that they had smoked marijuana and were in the possession of alcohol at the time of the crash. However, it remains to be seen whether those statements were obtained in accordance with proper police procedure.
Given the driver's age, any amount of alcohol detected in her system could result in a drinking violation, but a news report doesn't indicate whether any field sobriety tests or blood-alcohol tests were administered at the scene. Since the 18-year-old was taken to a hospital for treatment, we could assume that she was given a blood-alcohol test. But if she wasn't given such a test, a prosecutor may have a hard time proving she was intoxicated.
We've discussed before how a serious car accident, and especially one that causes injuries, can make a person appear drunk. However, an aggressive DUI defense will call into question the prosecutor's assumptions and seek a significant reduction of charges.
Source: Montrolse Patch, "Montrose Woman Flips Car in Alleged DUI Crash," Nicole Charky, May 16, 2012
]]>The elements of self defense are (1) the defendant reasonably believed that they were in imminent danger of being unlawfully touched; (2) that the defendant reasonably believed that their use of force was necessary to defend against the danger; and, (3) that defendant used no more force than necessary to protect themselves. The defendant's belief is subjective. That means that it doesn't matter if a reasonable person would believe they were in danger, it matters that defendant believed they were in danger. The defendant could have relied on information that is not true to form their belief in the danger if that belief is reasonable.
The potential harm has to be imminent. You can't react with force now to a threat that may happen in the future.
If there were past threats of harm by against the defendant or another, that may be considered in determining whether the defendant's conduct was reasonable. It may be that prior threats would make a defendant act more quickly or with more force in defense of others.
There is no duty to retreat. You are entitled to stand your ground. You may pursue an assailant until the threat has passed. The fact that retreat was possible is irrelevant to the consideration.
Two unique situations are posed by mutual combat or where the defendant is the initial aggressor. Mutual combat takes place where both/all parties agree to begin to fight. In both, you only have the right to defend yourself/others if you try in good faith to stop the fighting; let the opponent know that you intend to stop fighting; and, give the opponent a chance to stop fighting. There is an exception to the requirement to withdraw from the fight where one starts the fight with non-deadly force and the opponent escalates the fight by using deadly force.
Do not hesitate to contact me to discuss these defenses or any others at (213) 479-5322.
]]>Now, contradicting the father's statements, the police in Los Angeles claim that Bynes didn't take a breath test at all. In fact, authorities say the actress refused a chemical test.
]]> In California, if you decline to take a Breathalyzer test or a blood test in connection with being arrested on suspicion of drunk driving, you could lose your driver's license for a year without the opportunity to receive a restricted license. If you are convicted again after refusing a chemical test, there is an automatic two-year suspension of your driver's license, and a third conviction after a refusal carries a three-year suspension.Amanda Bynes' first court date is set for the beginning of June in Beverly Hills, and it will be interesting to see how the case plays out. There may be mitigating circumstances that haven't yet come to light, but if Bynes is convicted this first time, it would mean her license will be suspended for one year.
While a year-long license suspension may not keep the celebrity actress from working, the same isn't true for most people. A license suspension without the possibility of a restricted license keeps many people from getting to work, and that means people lose their jobs. In addition, a DUI-related conviction can make your car insurance premiums go up, and the fee to reinstate a driver's license can cost at least $100.
To fight against those penalties, Californians with DUI concerns should do what they can to educate themselves about their rights. A strong DUI defense can help achieve the best outcome in a difficult situation.
Source: Radar, "Amanda Bynes DUI Case: Will Be Charged For Failure To Take Chemical Test," May 4, 2012
]]>In 2009, the National Academy of Science released a study calling a host of 'forensic' expert subjects into dispute. From fingerprinting, firearm analysis to DNA and bitemark anaylys -- the underpinnings of the 'science' used convict people in this country -- was called into question. The study called for numerous changes to ensure that the fields were treated more like hard sciences and less like phrenology.
A recent article in ProPublica calls into question the underlying credentials held by the people testifying as to the accuracy and reliability of everything from blood-alcohol tests to pathology. In the study, the author was able to become certified by the American College of Forensic Examiners Institute as a Certified Forensic Consultant by taking a 250 question test and paying a $495 fee (for an additional $50 ACFEI sent the author a white labcoat). Others who've been certified by ACFEI include a housecat (Zoe D. Katz) and a convicted felon.
Membership in this organization is used by many forensic experts to boost their reliability and the reliability of their findings.
If you have any questions about experts or any other criminal or DUI matter, do not hesitate to contact me at (213) 479-5322.
]]>A recent California appellate case, People v. Bejasa holds two things:
First, when the cops handcuff Bejasa, put him in the back of the police car, then later remove him from the car and take off the cuffs, Bejasa is still in custody for the purposes of Miranda.* Bejasa had admitted being on parole, he consented to a search of his person during which syringes were found and he was told he was being 'detained' for a parole violation. This means that his statements (answers to the questions described above) must be suppressed.
Second, because Bejasa was in custody the FSTs he performed, specifically the Romberg Balance test (tilt your head back, close your eyes and estimate 30 seconds) is testimonial and must be suppressed. The court contrasts this with cases (Muniz) where the defendant was asked to recite the alphabet or count. The Romberg test requires defendant to computate and is therefore distinguishable from counting or reciting.
If you have any questions about DUI arrests, Miranda or any other issue do not hesitate to contact me at (213) 479-5322.
* Miranda v. Arizona holds that the police must advise a person of their right against self-incrimination (1) prior to questioning, (2) when the person is in custody. A person is in custody when they do not believe they are free to leave. If the person affirmatively asserts their right to remain silent, no questioning can take place.
]]>Now Canada has made it easier for those with DUI convictions to enter the country.
If you are convicted/plead guilty to a DUI (even a first time DUI), one of the consequences is that you will be denied admission to Canada. Normally, if you have been convicted of a DUI you would have to obtain an entry permit before visiting. The permit costs $200 (Canadian). As of March 1, 2012, Canada has changed its policy and no longer requires someone convicted of DUI (or any other crime for which they served no jail time) to pay the permit fee. This is anticipated to make it easier for those stopped at the border to enter without being turned away.
So now when you get to the border, you can fill out the application for a permit on site and not have to come back.
This is one of the unanticipated DUI consequences and it's good to see that Canda is making it easier to enter.
If you have any questions about DUI and Canadian migration or any other issue, do not hesitate to contact the Law Office of Edward J. Blum at (213) 479-5322.
]]>According to Riverside County authorities, a car occupied by two men -- one from La Quinta and one from Coachella -- went through a red light and collided with a sheriff's patrol car. The deputy in the cruiser was taken to a hospital in Palm Springs and treated for minor injuries. Initial reports said the accident may have involved a drunk driver, meaning a charge of felony DUI was a possibility.
]]> As for the vehicle that police say ran a red light, the 23-year-old passenger from La Quinta was not hurt, but authorities who responded to the scene arrested him on suspicion of public intoxication. He was taken to jail in Indio, but a news report did not indicate whether a breath test or any field sobriety tests were administered to determine if he was intoxicated.(We've discussed previously how car accidents can be disorienting and make people appear intoxicated when they aren't, and such concerns may come up in court as the young man mounts his defense.)
The driver of the car in question apparently left the scene of the accident on foot. Almost 12 hours later, at 11:30 a.m., police arrested a 23-year-old Coachella man on suspicion of felony hit and run.
A sergeant in Riverside County said police were already keeping the Coachella man under surveillance when he was taken into custody. He was interviewed at the Indio California Highway Patrol office. After that, police arrested him.
In this case, it would seem that prosecutors would not have enough evidence to charge the driver with DUI. Since so much time passed between the alleged incident and the young man's arrest, a breath test would have little chance of supporting a DUI conviction.
In particular, this case reminds us of how desperate drunk driving charges can make a person feel, and how badly people want to avoid them.
Source: Valley News, "Possible DUI related vehicle crash with sheriff's deputy in Coachella," April 25, 2012
]]>The case was heard in Riverside County, and the judge there agreed to reduce three of the felony DUI counts to misdemeanors. As a result, the deputy was sentenced to 90 days of home detention and five years of probation after she pleaded guilty to the charges. Had the woman's defense not requested that the felonies be reduced to misdemeanors, her penalties could have been much worse, including jail time.
]]> According to witnesses, the defendant's vehicle collided with several parked cars at an apartment complex and ran over a pedestrian's foot. The deputy apparently did not stop to assist, and witnesses gave the investigating authorities the license plate number of her car.Later that same night, local police received a call that a vehicle had run into a water fountain at the Marrakesh Country Club. Police then matched the license plate number with the one provided by witnesses at the apartment complex.
A news report indicated that a forensic chemist estimated the deputy's blood-alcohol level to be roughly 0.09 percent, though it isn't clear in the report how that conclusion was made. Presumably, a breath test was administered, though such tests have been shown to provide inaccurate results.
The deputy in this case is still an employee of the San Diego County Sheriff's Department. For Los Angeles residents who have DUI concerns, the woman's case illustrates how a carefully considered plea agreement can prevent a bad situation from becoming worse.
Source: Santee Patch, "Ex-Ramona Detective Gets 90 Days Home Detention in DUI Case," April 22, 2012
]]>The bizarre sequence of events took place when a 21-year-old college student was pulled over after police allegedly witnessed his vehicle drifting into the bike lane. The man said he had consumed several beers two hours earlier. He apparently failed field sobriety tests, blowing a .166 and a .148 on breath tests.
]]> The young man was booked into the county jail and released after two hours when his father came to pick him up. According to the report, the man and his father must have gone directly to the impound lot. Police received a call from an employee at the towing company saying that a man who sounded intoxicated was en route to pick up his vehicle.When the 21-year-old left the lot with his car, a California Highway Patrol dispatcher was waiting, and pulled him over again after the driver bumped into the curb. A second round of breath tests returned blood-alcohol readings of .096 and .095.
The college student, who now faces two drunk driving charges, has pleaded not guilty. In all DUI cases, it is important that defendants are fully aware of their rights. We have discussed previously how breathalyzer tests are not always accurate, and many California residents are able to see the charges against them reduced or even dropped after a closer look at the facts of a case.
Source: New Times, "Two for one," Matt Fountain, April 19, 2012
]]>But Californians know that police reports don't always offer a fair assessment of the circumstances of an arrest, and the claims of Bynes' father deserve some attention. After all, he says he was told that his daughter blew a zero on a Breathalyzer. Previously on this blog, we've discussed how breath tests aren't always accurate, but a zero-reading would leave the police with very little evidence if any.
]]> It remains to be seen whether the father's statements are accurate. Still, he went on to make some interesting claims. He said the fender-bender that led to Bynes' arrest was actually the fault of the arresting police officer, who the father thinks pulled out in front of his daughter, causing the accident. Again, whether or not that was the case remains to be seen, though it isn't hard to imagine that particular situation and how the 26-year-old Bynes would be visibly upset after the collision.Car accidents can be upsetting for anyone involved, and sometimes the resulting emotions can make a person seem unsteady or intoxicated, even though that doesn't necessarily mean a DUI conviction is in order.
Moreover, some news sources have reported that Bynes was partying prior to and after her arrest, but such claims have little or no relevance unless they can be used as evidence in court.
It will certainly be interesting to see how the case plays out and how Bynes' father's statements compare with those of the police.
Source: Los Angeles Times, "Amanda Bynes' father says she wasn't drinking before DUI arrest," Christie D'Zurilla, April 9, 2012
]]>Brown was recently arrested in suburban Los Angeles, and three misdemeanor charges have been filed against him. Two of the allegations are DUI-related, and Brown has also been charged with driving on a suspended license.
]]> The California Highway Patrol claims Brown was driving unsafely when his vehicle was stopped, but the singer's attorney (not affiliated with this firm) denies that claim. The police say Brown was talking on a cell phone without a hands-free unit, and that was why he was initially pulled over. During the traffic stop, the officer apparently suspected the singer of being intoxicated. Brown is said to have failed a field sobriety test, though a local news report didn't specify what kind of test was administered.Brown is accused of having a blood-alcohol level exceeding 0.08 percent -- the legal limit for driving -- but whether the blood-alcohol test was accurate remains to be seen. In addition, Brown's defense appears to contest whether the police had the right to pull the singer over in the first place. If it can be shown that the police did not have probable cause to stop Brown's vehicle, then the charges against him could be reduced or dropped.
If convicted of the DUI charges, Brown could spend up to six months in jail. His initial court appearance is set for April 16.
Source: boston.com, "Bobby Brown charged with DUI in Los Angeles," Anthony McCartney, March 28, 2012
]]>But readers may be surprised to hear that a federal bill has been proposed that calls for $24 million to fund further research into alcohol-sensing technology. That $24 million would be in addition to the $10 million already given to the program, the goal of which is to determine whether it is feasible to require car manufacturers to include the alcohol-sensing technology in all future vehicles. And it's not just people who are inclined to refuse a breath test who are objecting.
]]> Members of the restaurant industry have pointed out that the devices could be set to detect blood-alcohol levels well below the legal limit, meaning diners might be forced to call a cab after having only one or two glasses of wine. And as Los Angeles residents should know, breath tests have been known to give inaccurate results. It's not hard to imagine the frustration of a sober person being denied the right to start his or her own car because of a technology malfunction.Still, breath tests aren't the only kind of technology being explored. There is also something called tissue spectrometry, which detects alcohol in human tissue using touchpads and lasers. Another option is distant spectrometry, which would effectively sniff a driver's breath whenever he or she entered the car. Supposedly, the technology would somehow differentiate between the driver's breath and the breath of passengers.
Of course, readers are forgiven for feeling skeptical.
After all, it was reported that the devices are expected to be accurate only 99.99966 percent of the time. That means about 4,000 drivers in the U.S. each day would have to deal with an ignition malfunction. In addition, even the director of the research program admitted that the devices would detect alcohol levels below the legal limit to drive. Still, she apparently supports setting the devices so they include a margin of error, since it's preferable to "erroneously stop an innocent than to erroneously permit a drunk."
Many Californians may find that perspective troubling. In any case, individuals who have DUI concerns still have options to protect their rights under California law. It will be interesting to see how, if at all, the recent research impacts those rights.
Source: Los Angeles Times, "Should future cars curb drunk drivers?" Dan Turner, March 28, 2012
]]>Recently, police arrested a Pasadena woman for DUI after a serious collision with a building at about 2:15 a.m. The 22-year-old driver's 5-month-old daughter and a 21-year-old female passenger were also in the car when the crash occurred. The two women suffered injuries, but luckily the baby was unharmed.
]]> A local news report didn't indicate whether police administered any kind of blood-alcohol test to determine if the woman was inebriated. However, she was arrested anyway on suspicion of drunk driving and child endangerment.Readers may keep in mind that a motor vehicle accident of any kind can be rattling, making a person appear intoxicated when he or she isn't. In this case, the accused woman's vehicle went through the front doors of an office building. That kind of accident would cause just about anyone to be disoriented.
Moreover, prosecutors need more than suspicion to obtain a conviction. They need evidence. That means, in a DUI arrest, police must obtain an accurate reading of the suspect's blood-alcohol content. But as Los Angeles residents know, the trouble with the blood-alcohol tests is that too often they yield inaccurate results.
Source: Pasadena Star-News, "Update: Pasadena woman suspected of DUI after crashing into building with infant daughter in car," March 18, 2012
]]>In a recent case, I represented a gentleman accused of domestic violence (the law here applies equally to DUIs and I'll tie it in below). His accuser was not present at trial. Rather than give up and dismiss the case, the prosecution tried to get the police officer to testify as to what the complaining witness told him.
]]> Before the prosecution could do that they had to show the following facts:1. The Witness is unavailable.
2. The statements the witness made were non-testimonial.
3. The statements were reliable.
To show that the witness is unavailable the government needs to show one of the factors in Evidence Code Section 240. Usually it's 240(e) the witness can't be located, but it can also be because the witness is deceased. In my case, the witness (who no longer wanted to be involved in the prosecution) was not served with a subpoena to appear. In this scenario, People v. Cromer states that the prosecution must show they made a persevering application and untiring effort in good faith to find the person.
In Davis v. Washington the US Supreme Court held that testimonial statements are those that describe something that has already happened. Non-testimonial statements are those that describe what is currently happening. In my case, the statements made to the police long after my client had left the scene were determined to be testimonial. There was no on-going emergency that the witnesses statements would have resolved. On the other hand, the court allowed the 911 tapes made shortly after my client had left the scene as non-testimonial.
Finally, the confrontation clause also requires that the non-testimonial statements be reliable. In Michigan v Bryant, the US Supreme Court held that statements non-testimonial nature is not the only hurdle to admissibility. There is a Due Process requirement that the statements also be reliable. In my case, the statements were not reliable because the complaining witness told the city attorney that she made it up because she was angry with my client.
The confrontation clause applies to evidence in DUIs when the government tries to introduce evidence, usually of the blood test or the accuracy of the breath testing machines by someone other than the person who took the tests or performed the accuracy checks. These were the facts in Bullcoming.
If you have an issue involving the confrontation clause in a DUI or other criminal case, please give me a call so I can discuss your case with you at (213) 479-5322.
]]>The LAPD announced that increased law enforcement will be out on St. Patrick's Day -- which falls on a Saturday this year. Police will be checking for driver's license violations, as well as for driving under the influence of drugs or alcohol.
]]> Many times DUI charges result from a traffic stop for an equipment violation, speeding or other driving or traffic offense. If an officer suspects drug or alcohol impairment, a field sobriety test may follow. Throughout the duration of a traffic stop -- including the field sobriety test, Breathalyzer or arrest (if one occurs) -- the police must follow certain procedures or risk violating an individual's civil rights.A checkpoint, on the other hand, can be used to stop any driver, even in the absence of any traffic violation. An arbitrary number of cars can be stopped, and if an officer detects impairment, any field sobriety testing should follow specific procedures.
According to a news report, the LAPD checkpoints this St. Patrick's Day will occur in the following locations:
There will also be a DUI saturation patrol on Sunday in the Harbor area.
In the coming days, Los Angeles residents should keep in mind that with any DUI charge, the burden of proof lies with the prosecution.
Source: LAist, "St. Patrick's Day Weekend DUI Checkpoints & Patrols," March 14, 2012
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