Articles Posted in DUI

Lamar Odom will not face charges related to an incident at a Nevada brothel in 2015 in which the former Los Angeles Laker forward and 6th Man of the Year nearly died.

Odom, 36, was hospitalized for 3 months after a cocaine overdose inside Love Ranch in Crystal, Nevada. According to reports, the Nye County District Attorney is set to dismiss the case later this week. After waking, Odom was transferred to a Los Angeles area hospital, but has since left and checked into a local rehabilitation facility to work on speaking and walking. Continue reading →


Alec Scott Abraham sped through a red light, mowing down a family in a Chevy Cruz, killing a 2 year-old girl and her grandmother, while seriously injuring the girl’s mother and 7 year-old brother last month. Abraham fled the scene of the accident. Detectives believe he stole a bystander’s mobile device and phoned a friend for help.

Abraham had been cited multiple times over the last year for speeding, and owned a highly modified Ford Mustang which was involved in the accident. Irvine Police Detective Jonathan Cherney says the department was able to track Abraham down by “pining” his phone. He was arrested in a park in Costa Mesa. Continue reading →

After being alerted to a fire inside an apartment on the 1900 block of Sherrington Place, police discovered roughly 25 marijuana plants. The plants were part of a cultivation project, however, one that police determined to be legal.

The Newport Beach Fire Department determined that a faulty electrical cord that may have been part of the growing operation was the source of the blaze. The Newport Beach Police were notified by firefighters after they had extinguished the fire and discovered the plants.

It’s rather surprising that NBPD did not pursue charges related to the cultivation. Newport Beach, known for its politically conservative city council, charged over 550 drug abuse violations in 2014 – second only to DUI charges.

Santa Ana police arrested a local truck driver on Wednesday around 2:00 p.m. after he crashed a stolen vehicle into three different businesses and one home. The police chase lasted some 20 minutes and finally ended in front of a law office.

The driver, who was identified by the Santa Ana Police, was a 48-year old local named Tuan Anh Truong.

According to the police, they received reports of a man driving a stolen GMC Sierra truck around 1:30 p.m. The man, it was said, was driving recklessly and was crashing into businesses. Continue reading →

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.

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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