Articles Posted in DUI

Breathometer, a California start-up, has developed a smartphone blood-alcohol tester. It is a small device, similar to the latest new trend of credit card swipers, that plugs into a smartphone’s headphone jack and works with an application that you would download that runs the device.

The company launched a campaign in hopes of raising money to produce and market the device. They are also allowing anyone interested to order it. Pledge levels have ranged from $20 for a Breathometer device to $500 for a lifetime upgrade to all Breathometer products.

The device will work with all iPhone and Android smartphones. In addition, to informing all users that they could be too impaired to drive, the smartphone app will also include information on local transportation such as cab/taxi companies. The company is currently seeking FDA approval for the Breathometer, with a patent pending. They hope to make the product available to the public by the summer.

There are also other products on the market currently, some of which sell for as little as $30 and can fit onto your keychain. Non-electronic crystal-based breath analyzers are available for less than $3.

We strongly recommend that if you want to be truly safe, it is best not to drink and drive at all.

The Law Office of Lauren K. Johnson is proud to represent all those who have been charged with a DUI offense in our area. We understand that a DUI conviction can carry life-altering results. If you or a family member has been arrested for driving under the influence, get in touch with our office as soon as possible after the arrest to ensure that you have an advocate on your side every step of the way. We can be reached by phone at 949-679-7745 or you can send us a message online for a free consultation.

The United States Supreme Court considered the 4th amendment implications of forced blood draws in DUI cases in the case of Missouri v. McNeely. The justices are considering whether forced blood draws violated the Fourth Amendment right against unreasonable search and seizure.

On October 3, 2010 Missouri state police officer Mark Winder observed Tyler McNeely driving above the posted speed limit. Upon making contact with McNeely, the officer observed that his eyes were red and glassy and that his breath smelled of alcohol. McNeely performed poorly on the administered Field Sobriety Tests and refused to submit to a breathalyzer test.

He was placed under arrest and transported to a hospital for a blood sample. The officer did not obtain a warrant from a judge before allowing the hospital to draw a sample. The blood test revealed that McNeely’s blood alcohol level was above the legal limit. Officer Mark Winder testified that in many similar cases that he sought to obtain a warrant from a judge before obtaining a blood draw. In most cases it took 20 minutes to an one hour to obtain the warrant. However, in this case he went ahead and did so without seeking a warrant.

The state charged McNeely with driving while intoxicated. He immediately moved to suppress the blood evidence, stating that it was obtained without a warrant. The trial court granted this motion. The state appealed. The Missouri Court of Appeals held that the trial court erred, it transferred the case to The Supreme Court of Missouri, which affirmed the trial court’s decision.

The question at the core of the case is, can a forced blood draw be done without a search warrant? The Fourth Amendment states: The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause..

The Supreme Court justices indicated that a blood test is a very “intrusive” procedure and therefore a warrant could be required. The laws in each state vary but the questions raised at Oral Arguments were two-fold. First, is there enough “Probable Cause” to demand a blood sample without warrant? And are there “Exigent Circumstances” as the Respondent contends? The respondent stated that the declining blood alcohol levels by the minute are crucial and without a timely sample, sustaining a conviction for DWI/DUI would be more difficult, so it would fall under the scope of “Exigent Circumstances.”

The decision by the SCOTUS is likely to affect DUI cases in Orange County and other counties throughout the country.

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According to a recent survey conducted by the California Office of Traffic Safety, drunk drivers may not be the biggest problem facing law enforcement in patrolling the state’s highways. The survey tested 1,300 drivers in nine California cities on Friday and Saturday nights, finding that fourteen percent were under the influence of drugs, while only approximately seven percent were under the influence of alcohol. Marijuana, found in 7.4 percent of drivers, was more common than 7.3 percent for alcohol, 4.6 percent for other illegal drugs, and 4.6 percent for prescription or over-the-counter medications.

A statement released by the Director of the Office of Traffic Safety, Christopher Murphy, opined that the study’s “results reinforce our belief that driving after consuming potentially impairing drugs is a serious and growing problem.” The press release continues, explaining that, likely due to the added expense of testing, driving under the influence of drugs is under-reported and under-recognized.

In response to this issue, the Office of Traffic Safety and the California Highway Patrol have been providing law enforcement with specialized training to detect and apprehend drug-impaired drivers. Further, District Attorney’s offices in 20 counties have created “vertical prosecution” teams that follow drug-impaired driving cases from arrest through trial and the Regional Traffic Safety Resource Prosecutors are training District Attorney’s on techniques to prosecute such cases.

Unfortunately, these new efforts might mean that even more community members in our area will unnecessarily face serious long-term challenges as a result of more aggressive criminal prosecutions.

Opponents of these new initiatives claim that, in at least some circumstances, driving under the influence of drugs is not as dangerous as driving drunk. Maia Szalavitz of Time Magazine recently wrote an article entitled “7% of California Drivers Test Positive for Marijuana, but Are They Impaired?” wherein she stated that, “Research suggests that stoned users on the road are not as impaired as those who drink alcohol are, and there is some evidence that those who use marijuana, particularly for medical purposes, may be staying off the roads anyway.”

According to Szalavitz’s article, there still remains a question as to whether individuals who have tested positive for marijuana remain under the effects of the drug at the time they are driving. A review of data performed by Canadian researchers found that driving within three hours of using marijuana was associated with a 92% increased risk of fatal or near-fatal accidents. However, even though Tetrahydrocannabinol (“THC”), the active ingredient of marijuana, can remain in blood and saliva a variable amount of time after use, the “high” only lasts three to five hours.

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The Washington Post reported that actor Michael Madsen was released from the hospital following an arrest on suspicion of drunken driving in Malibu, California.

Madsen’s attorney contended that, prior to the arrest, Madsen was taking prescription drugs that may have resulted in a faulty sobriety test. The case is a good reminder that in California there are numerous ways in which an experienced attorney can challenge charges of drunk driving. The following are some common defenses to DUI charges.

1. Challenging the Traffic Stop and/or Arrest
The Fourth Amendment to the United States Constitution prohibits law enforcement from conducting “unreasonable searches and seizures.” Any time a police officer stops a vehicle, the driver is considered to have been “seized” under the law, and the government is required to prove that the officer had a reasonable suspicion that the driver was engaging in criminal activity so as to warrant the stop. Further, if the driver is arrested, the government must demonstrate that there was “probable cause” to support the arrest.

An experienced DUI attorney will be able to recognize a defective stop or arrest as well as the grounds upon which the stop/arrest could potentially be challenged. For example, if an individual is stopped by a police officer, but the officer did not observe a traffic violation, there would be grounds to challenge the stop.

Assuming, however, that the stop itself was valid, i.e. the person was speeding, weaving, etc., the individual may still have grounds to challenge his or her arrest. Generally, in the context of arrests for DUI, one indicator of intoxication alone, such as the smell of alcohol or bloodshot eyes, will be insufficient to establish probable cause to arrest.

2. Challenging an Interrogation
Once a person is place under arrest, law enforcement officials are required to read the arrestee his or her Miranda Rights. Miranda warnings have to convey the following: the person has the right to remain silent, anything said can be used again the person in court, and the person is entitled to legal representation.

If an arrested person is not advised of his or her Miranda Rights and the police question that person, any statements made by the person during that interrogation could not be used against that person by the government to prove the charges.

3. Challenging Blood Alcohol and/or Breathalyzer Tests
One of the most common ways of contesting DUI charges is to challenge blood, urine, or tests performed by law enforcement. There are many problems with blood, urine, and breath testing. Challenging these types of tests often requires intimate knowledge of statutory requirements and procedural issues.

For instance, California law requires that law enforcement and medical personnel comply with certain conditions to ensure the accuracy of blood test results. These conditions are outlined in California Code of Regulations Title 17, and include: that the blood draw site be sterilized with a non-alcohol-based product, that the drawer maintain certain levels of anticoagulants and preservatives in the sample, and properly storage of any sample. The failure to comply with any of these, and other conditions, may result in the invalidation of any blood test.

4. Plea Bargaining
Sometimes the most effective way an experienced DUI attorney can help a defendant is to negotiate with the prosecuting attorney to reduce the charge and/or penalties. Successful plea bargaining usually results in the defendant entering a guilty plea to a lesser traffic offense, such as reckless operation, which carry substantially lesser penalties and the added benefit of not having a DUI conviction.

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Last Thursday, The Palm Beach Post reported that Joe Simpson, the father of famous singers Jessica and Ashlee Simpson, was arrested and charged with two misdemeanor counts of driving under the influence. He was stopped at a Sherman Oaks, California DUI checkpoint.

Checkpoints are an increasingly popular DUI interdiction tool in California among law enforcement agencies. The California Highway Patrol contends that it “began conducting sobriety checkpoint operations in 1984 to ensure the safe passage of each and every motorist traveling on California’s roadways by targeting areas where there is a high frequency of impaired driving.”
According to the California Office of Traffic Safety, it designated 2010 as the “Year of the Checkpoint,” to mark the “significance of an increased commitment to this valuable deterrence and enforcement tool.” The OTS claimed that it funded considerably more DUI checkpoints that year, 2,500, which represented a 44 percent increase over the previous year.

At a sobriety checkpoint, drivers are stopped without reasonable suspicion, and may be tested summarily and without probable cause, seemingly in conflict with the Fourth Amendment to the United States Constitution’s prohibition against unreasonable searches and seizures.

In 1990, the United States Supreme Court addressed the apparent conflict in the Court’s seminal case on DUI checkpoints, Michigan Dept. of State Police v. Sitz.

In Sitz, the Supreme Court acknowledged that, while sobriety checkpoints infringed on an individual’s Fourth Amendment rights, the state interest in reducing drunk driving outweighed any minor infringement. Writing for the majority, Chief Justice William Rehnquist opined “No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it.***Conversely, the weight bearing on the other scale — the measure of the intrusion on motorists stopped briefly at sobriety checkpoints — is slight.”

Currently, ten states, Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming, have found that DUI checkpoints violate their state constitutions or have passed law prohibiting them. Alaska and Montana do not utilized DUI checkpoints even though they have not made them illegal. Of course, as this latest story reminds, California courts have found no such thing, and so the checkpoints are frequently used.

The effectiveness of DUI checkpoints is still a point of dispute, with proponents claiming they provide a deterrent effect and consistently reduce drunk driving, and opponents claiming they constitute a Fourth Amendment violation and are a poor way of detecting and preventing drunk driving. A 2008 study conducted in Kansas City, Missouri found that, of 18,747 cars stopped at sobriety checkpoints, only 1.6% of drivers were arrested for DUI.

Also, it is important to note that while these checkpoints have been found constitutional, there are rules to the way police officers must organize the checkpoint. Any violations from that protocol may constitute a violation of one’s rights. A California DUI attorney can explain how the rules might apply in your specific case.

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When thinking about criminal convictions the immediate penalties come to mind, serving time in jail or thousands of dollars in fines. Avoiding those consequences are important. However, sometimes even more important is avoiding the collateral or indirect consequences of these criminal convictions. This may be particularly true for young defendants who may face problems stemming from the conviction for the rest of their life.

For example, take the case of driving under the influence.
A DUI conviction in California can carry harsh penalties, including jail time, fines, and a driver’s license suspension. Although most people are aware of these obvious consequences, there are numerous, and often unconsidered, ways in which a DUI can affect your life indirectly.

These “hidden” penalties are often more severe than the known consequences and can have a significant impact on how a DUI case is defended. A knowledgeable DUI attorney will be able to recognize and avoid or minimize the effects of such consequences.

The following are common ways in which a DUI can impact your life that you may be aware of:

1. Commercial Drivers – Anyone with a commercial driver’s license convicted of DUI will lose their CDL for a minimum of one year and a second conviction will result in a lifetime suspension.

2. Licensed Professionals – Doctors, lawyers, cosmetologists, and daycare workers, to name a few, are required be licensed to practice in their field. These professionals may face sanctions from their respective licensing board if they are convicted of DUI, including fines, counseling, probation, license suspension or revocation.

3. Car Insurance – Some auto insurers will drop you from their coverage if you receive a DUI conviction. Even if your insurer doesn’t drop you, at the very least you can expect a significant increase in your monthly premiums.

4. Pilots – Any pilot with an FAA Airman’s Certificate is required to report a conviction for DUI the FAA, which could result in suspension or revocation of their license.

5. Travel Restrictions – In 2011, Canada passed the Immigration and Refugee Protection Act, allowing officials to prevent anyone convicted of DUI from entering the country.

6. Child Custody/Adoption – A DUI conviction can be especially damaging in the event you are involved in a child custody dispute or attempting to adopt a child. Courts and adoption agencies consider a DUI conviction when determining what is in a child’s best interests, making it more difficult to win custody or obtain an adoption.

7. Enhanceable Offense – In California, a DUI is considered an “enhanceable offense”. This means that a misdemeanor DUI can be charged as a felony if you have three or more previous DUI convictions within the last ten years. A conviction for felony DUI can carry the following penalties: sixteen months to four years in prison, $390-$1,000 fine with penalties assessed, habitual traffic offender status, and a four year driver’s license suspension.

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Both attorneys and judges alike are bound by certain rules of ethics which impose obligations upon members of these professions as officers of the court system. Each state has its own rules regarding what attorneys and judges can and cannot do and the penalties for failing to follow the established rules. A recent high profile DUI case in California’s Beverly Hills’ Court demonstrates the consequences judges can face for failing to strictly adhere to their ethical obligations.

The Washington Post reported Monday that two judges involved in actress Lindsay Lohan’s recent brush with the law have been disciplined in connection with their handling of the case. According to the story, Los Angeles County Superior Court Judges Marsha Revel and Elden Fox were reprimanded by the California Commission on Judicial Performance (“CCJP”).

The CCJP determined that Revel had acted improperly by meeting alone with an attorney that wanted to take over the defense of Lohan’s 2010 DUI case. Fox was disciplined for denying Lohan bail on a minor charge and refusing to hear her attorney’s arguments on the issue. Both judges were issued “advisory letters,” which are considered the lowest form of discipline.

California’s judiciary is governed by the California Code of Judicial Ethics (“CCJE”). First adopted in 1996 and recently amended in 2009, the CCJE covers judges’ behavior on and off the bench, stating “All members of the judiciary must comply with the Code. Compliance is required to preserve the integrity of the bench and to ensure the confidence of the public.”

In the case of Revel, the CCJP likely found him to have violated Section 3(B)(7) of the CCJE which does not allow a judge to “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding…”

Fox, on the other hand, was probably found in to have breached Section 3(B)(7) of the CCJE which requires a judge to “dispose of all judicial matters fairly, promptly, and efficiently. A judge shall manage the courtroom in a manner that provides all litigants the opportunity to have their matters fairly adjudicated in accordance with the law.”

Although neither judges’ misconduct was considered particularly egregious, it certainly had an effect on Lohan’s case. Incidents such as these demonstrate that even judges can make mistakes, emphasizing the need for defendants to be represented by seasoned legal counsel willing to fight for their interests. Of course, those facing criminal charges have much on the line when it comes to these cases; jobs, financial penalties, custody of their children, and even their freedom hinge on actions in the courtroom. For that reason it is always unacceptable to have a lawyer or judge fail to adhere to strict ethical standards that ensure fairness for all those involved in each and every case.

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Standardized Field Sobriety Tests (“SFST”) are a battery of tests administered by law enforcement agents to individuals suspected of driving while intoxicated and are designed to detect specific signs of impairment commonly known as “clues.” SFST’s were developed from research sponsored by the National Highway Traffic Safety Administration and performed in the 1970′s at the Southern California Research Institute. The three most commonly SFST’s used are the Horizontal Gaze Nystagmus Test, the One-Leg Stand Test, and the Walk and Turn Test.

Horizontal Gaze Nystagmus Test
Horizontal Gaze Nystagmus (“HGN”) is the involuntary jerking of an individual’s eye that occurs naturally as it moves to the side. Generally, nystagmus occurs only when the eye rotates at high peripheral angles. Alcohol impairment exaggerates nystagmus, causing it to occur at lesser angles and making it difficult for the eye to smoothly track a moving object.

In the HGN test, the tester observes the eyes of the subject as he or she follows a slowly moving object such as a pen or flashlight horizontally. The examiner is watching for three distinct clues in each eye:
1. Is the eye following the moving object smoothly?
2. Is the eye jerking at the maximum deviation, which is the farthest point it can move to the side?
3. If there is jerking, is the angle at which it begins within 45 degrees of center?

If the tester observes four or more clues, the subject is presumed to have a blood alcohol content of 0.08 or greater. The HGN test is often challenged based upon the fact that it fails to account for certain health conditions, such as hypertension, glaucoma, or inner ear problems that can affect an individual’s performance on the test. In addition, substances such as aspirin, caffeine, and nicotine can cause the eye to exhibit nystagmus.

One Leg Stand Test
The One Leg Stand Test (“OLST”) is often referred to as a “divided attention” test. This means that under normal circumstances, the test should be easily performed by most people, however, an impaired individual will have difficulty with the required tasks because they have problems dividing their attention between both mental and physical exercises. In the OLST, the individual is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands until told to put the foot down. The test is timed for 30 seconds while the tester looks for four clues of impairment:
1. Swaying while balancing.
2. Using arms to balance.
3. Hopping to maintain balance.
4. Putting the foot down.

If the tester observes two or more clues, the individual is presumed to have a blood alcohol content of 0.08 or greater. The OLST is often criticized because it can be negatively affected if administered on uneven surfaces, at night, or on a surface with no actual line to walk. Further, the test is unsuitable for people with back or leg injuries, individuals older than 65, and those with inner-ear disorders.

Walk and Turn Test
The Walk and Turn Test (“WTT”) is also a divided attention test. In the WTT, the individual is instructed to take nine steps, heel-to-toe, along a straight line, turn on one foot and return in the same manner to the beginning point. In the WTT, there are eight clues of impairment:
1. Poor balance while listening to the instructions.
2. Beginning before instructed to do so.
3. Stopping to regain balance.
4. Failing to touch heel-to-toe.
5. Stepping off the line.
6. Using arms to balance.
7. Making an improper turn.
8. Taking an incorrect number of steps.

If the officer observes two or more clues, the individual is presumed likely to have a blood alcohol content of 0.08 or greater. The WTT, like the OLST, can be affected by the surface it is conducted on as well as various health conditions afflicting the subject.

The effectiveness of SFST’s to detect intoxication generally depends on the examiner’s observance of the standardized procedures for test administration and scoring. The National Highway Traffic Safety Administration has published materials describing ideal conditions for the administration of SFST’s. These materials also recognize that ideal testing conditions do not always exist in the field. Less-than-ideal conditions and errors in the administration SFST’s affect the weight such evidence should be given.

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Just when you thought things were getting better for marijuana and its users in California, the battle takes a turn for the dumb. According to the L.A. Weekly’s Smoking Marijuana a Month Ago Could Get You a DUI Today Under Proposed Law, Los Angeles-area Assembywoman Norma J Torres is working on a bill that will make it a DUI (Driving Under the Influence) for a person to drive with ANY amount of marijuana in their blood system. The law does not seek to punish people with objective symptoms of being under the influence of marijuana (as is required now), it targets anyone who drives who has any metabolite of marijuana in their system. Marijuana can stay in a person’s system for weeks, a month, and sometimes longer than a month. This law would make it a DUI to drive if you smoked marijuana a month ago.

Assembywoman Torres is silent on how that would affect the hundreds of thousands of medical marijuana users in California who lawfully take the drug at the recommendation of a doctor and are dispensed it and consume it lawfully. While Californians overwhelmingly support the legalization of marijuana for medicinal purposes, 71% according to the Wall Street Journals’s Californians to Regulate Medical Marijuana Forms Campaign Committee, this law would effectively criminalize all medical marijuana users who drive. A patient who has been advised by their doctor to consume medical marijuana on a regular basis could never drive without being “under the influence,” even if not impaired.

Some law enforcement support the law. Others, including Law Enforcement Against Prohibition (LEAP), have come out against it, urging Torres to withdraw the legislation immediately.

This law serves no legitimate purpose and will not deter DUIs. It seeks to punish something this is not inherently dangerous and that public overwhelmingly supports. Hopefully Torres’ bill dies an early death.

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In a sad story, the Orange County Register reports that Man with 13 DUI convictions sentenced for probation violation. Judge Thomas H. Goethals sentenced Dennis Malavasi to six years in prison for a probation violation resulting from his 13th DUI. Mr. Malavasi had convictions for driving under the influence dating back to the 1970′s and missed the 10-year mark on his last DUI by only a few months. Driving under the influence is a “prior-able” offense and punishment becomes more severe after prior convictions for this crime. However, after 10 years, such prior enhancements wash out.

Mr. Malavasi had been given the opportunity to attend rehabilitation at the Salvation Army program. However, after a few months he checked himself out citing back pain. Many individuals with pain management problems self medicate with alcohol, according to the article Up to One Quarter of Pain Patients Self-Medicate With Alcohol. Experienced criminal attorneys know that in cases like this it is critical that the patient/client receive help not only with alcohol or substance abuse but also pain management to insure that the patient /client can successfully complete treatment. The same is true of underlying mental health issues.

Long term alcohol abuse has negative effects on overall health. Some of the increased risks of alcohol abuse include brain damage, liver failure, and an increased risk for some cancers, according to Effects of Alcohol – Health Effects of Alcohol.

I have represented many clients over the years in DUI and other related matters who have abused alcohol for decades. Some of my clients suffered not only serious health problems from alcohol abuse but also cognitive impairment. Even short-term drinking has been linked to memory loss according to Short-Term Drinking Has Long-Term Effects.

It is critical for criminal defense attorneys to recognize when a client has an alcohol problem and to link clients to treatment. Treatment works and many people have turned their lives around after receiving treatment for drug or alcohol abuse.

In many cases, including drug cases, DUI, domestic violence, child abuse, juvenile dependency, juvenile delinquency, and other cases that are alcohol-related, it is important for the attorney to get to the root of the problem and help a client when they want help. Treatment can also be an excellent alternative to incarceration for many clients. I have helped hundreds of clients avoid incarceration and punishment by guiding them to treatment resources, some of which are low-cost.

Clients seeking an attorney in an alcohol-related case should be sure that the attorney they hire is knowledgeable about alcohol abuse and treatment options and is sensitive to the client’s predicament.

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