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Justice Requires A Strong Foundation to Rest Upon

Picture a courtroom of a murder trial: the prosecutor is showing the jury a knife encrusted in dried blood, hinting that this was the knife the Defendant used to stab the victim to death. But how can you know that for sure? Or how can you know that the knife wasn’t compromised in terms of fingerprints or other evidence? This is where the rules of evidence and the importance of laying a proper foundation come into play.

A “foundation” is the minimum amount of facts needed to demonstrate that a particular piece of evidence is authentic enough and relevant enough that it can be admitted at trial.  In a way, the foundation of a piece of evidence is like the first paragraph of a news story.  It provides the basic “who, what, and why” of the evidence, so that the jury and other people in the courtroom can understand why that evidence is being presented and what the party offering it is trying to prove by presenting it.

A foundation is typically required for all pieces of evidence, and is particularly important in DUI cases. How you ask? Well, how do you know the instruments used to collect a blood alcohol sample were properly functioning? How do you know the machines were correctly calibrated? How do you know the sample of blood used was not tainted in any way? Laying a proper foundation can make or break a case. And so when choosing a criminal defense attorney, make sure to find one skilled in evidence and trial.

No Foundation for the Pre Alcohol Screening:

To lay proper foundation for a DUI case means that the prosecution must authenticate the test results, the test administrator, the credentials, etc. This rule is known as the Adams rule, based from a 1976 California case. The rule requires a showing that:

1. the apparatus utilized was in proper working order;
2. the test was properly administered; and
3. the operator was competent and qualified.

The purpose of this requirement is to protect the fairness of the judicial system and make sure the defendant is given his or her constitutional grants of due process and equal protection under the law.

Now going back to the preliminary blood screenings—remember that these are not meant to determine blood alcohol content, but ONLY in determining if the person is under the influence of alcohol. They are ONLY a tool used for establishing probable cause. In fact, the party told to complete this screening is told this (or should be told this) and they should also be told that if arrested, he or she would be given another test to determine the alcohol content of the blood.

This becomes critical when the defendant consents to the prescreening, but not the actual blood alcohol content test. At trial, such defendants typically argue that they satisfied the implied consent law by submitting to the prescreening, and most judges have agreed with this argument. Hence, they do not allow the jury to be instructed that the defendant refused to give a chemical test as required by the implied consent law (thus, preventing the jury from hearing this bias-inducing fact). In fact, Evidence code §352,  provides that the court, in its discretion, may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice of confusing the issues, or of misleading the jury.

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Instructions Not Included

So the trial is over, each sides have presented their case, and now it’s time for the jury to decide. Except before the jury is released to deliberate, they have to know what the rule of law says on the matter. Right? Or else how will they know whether or not the evidence presented throughout actually makes up a criminal offense, as defined by law. It is for this reason, the judge reads to the jury instructions on the rule of law at hand. Jury instructions are the set of legal rules that jurors ought follow when deciding a case. The jury instructor, who usually reads them aloud to the jury, gives jury instructions to the jury.

Jury instructions are important for several reasons. The primary reason is they lay out the applicable law for jurors to follow.  Without jury instructions, the jury would not know the elements of a DUI or Robbery charge.  Jurors would not have the definition of “reasonable doubt”, or “constructive possession”, or any definition for that matter.  They may forget who carries the burden in a criminal case and they certainly wouldn’t deliberate lesser-included offenses unless they were instructed on what the lesser-included offenses were.  Juries would find it difficult to render a lawful verdict if they were not provided with jury instructions.

Second, they are important for record-keeping matters on appeal.  If a Defendant is found guilty and wants to appeal a faulty jury instruction, he/she will need to show the appellate court the instruction read at trial.  That is why jury instructions are typed and printed and placed in the court file.  It is important for judges, when reading the jury instructions to the jury, to not stray or vary or “go off-script” to the agreed-upon instructions.  (The two sides agreed to the instructions for a reason, right?)

Many jurisdictions provide model instructions and verdict forms for particular claims or defenses. Trial courts will usually use these instructions unless you can show that they do not accurately describe the current state of the law or are otherwise insufficient. With regards to a DUI, one of the jury instructions the judge may read is: Driving under the influence or with a blood alcohol level of 0.08 percent or more AND failure to submit to or complete a test will result in suspension of (his/her) driving privilege for one year or revocation of (his/her) driving privilege for two or three years.

You may determine that additional instructions are necessary; these instructions are referred to as “special instructions. This is where you want to have a skilled criminal defense attorney on your side, because your attorney will know when and which supplemental instructions should be read to the jury.

Many courts tend to blur the distinction between the separate functions of instruction and argument, often to the detriment of criminal defendants. It is common for the judge to refuse a defendant’s request for a instruction on a specific defense theory or legal principle on the basis that the instruction is “a matter for argument.” Instruction of the jury by the court and argument to the jury by counsel are two distinct phases of trial, each with its own purpose and impact. On a conceptual level, these functions are not interchangeable—each must fulfill its own discrete purpose.” A knowledgeable defense attorney will know how to successfully persuade the judge to use their set of jury instructions.

A skilled criminal defense attorney will know if the standard instructions do not adequately state the law on your claims or defenses, or if it is best  to argue that a change in the law is appropriate based on some authority, you should submit special instructions. Special instructions should be drafted after you have reviewed the statutes and case law that apply to your claims or defenses.

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MONDER LAW DUI CRASH COURSE GUIDE:

Half of the arrests made in San Diego are DUI’s. For many of these people, it is there first DUI. They have no idea what penalties they face, and wonder what they can do to fight the charges. What will happen to my driver’s license? Will I face any jail time? Are there any fines? Did I say the right things at the traffic stop? Should I get an attorney? These are common questions my firm is asked all the time. It gets even more complex when you have multiple DUI’s and any priors. A repeated offender could face serious jail time, a multiple year suspension on their driver’s license, probation, and fines.

An individual will need to obtain a restricted license if they plan on going anywhere with a suspended license. This allows for a person to travel to and from work, that’s it. The process in getting this license requires proof on insurance and enrollment in a DUI program. The length of this program depends on your unique case. An experienced attorney can explain to you what is required for your case, and provide all possible options to meet your goals.

Unfortunately, the confusion does not end here. You will be given penalties from both the DMV and the courts. The DMV will suspend your license for a period of time. This could last from several months to several years. Once you license is fully suspended, the DMV immediately receives your original license and any supporting documents involving the case. Again, this is based on the suspicion of a DUI and guilt is not fully proven yet. Therefore, you are able to fight this suspicion in court with proper representation. You have 10 days to notify the DMV that you wish to challenge the suspicion and that you want a hearing. Otherwise, your license will be suspended for four months after your 30 day period. The DMV can extend that period if they are unable to schedule a hearing in time.

For court penalties and suspensions, the length is totally based on priors and the seriousness of the offense. This must also be in the timeframe of 10 years. A restricted license can be obtained depending on your situation. That too will depend on a variety of eligibility factors involving in priors, other suspensions, seriousness of the current DUI, etc. The courts impose jail time and fines that are directly correlated with the severity of the case and any priors.

Court convictions are good and bad in different ways compared to DMV suspensions. First time offenders get a six month suspension as opposed to the four months given by the DMV. However, time suspended through the DMV can be credited towards the court suspension. Also, a restricted license can be applied for immediately, whereas you must wait after the DMV’s 30 day period to apply.

We understand that all of this its complicated and needs more detail. Monder Law Group has provided a custom DUI Crash Course Guide to bring transparency to a DUI. Here, you will find information on the kinds of penalties involved in your specific case, how to handle a traffic stop, and how to get the best possible results for your situation.

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Criminal Defense Crash Course Guide

Everyday, people in San Diego are charged with a misdemeanor or felony and are uneducated about the process they are about to undergo. Am I facing any jail time? What’s the difference between a misdemeanor and a felony? Can I get the charges reduced or dismissed? How many times do I need to appear in court? What happens at all of the court dates? These are just a few of the questions we hear at Monder Law all the time. If people knew the answers to those questions in advance, they will be much better off understanding their case and choosing the right attorney for them.

The court process for criminals can be quite complicated if this is your first time experiencing the justice system. The first court appearance is called an arraignment where the foundation for the case begins. Then a preliminary hearing is held for the prosecutor to show the courts that the case should move forward. A second arraignment can occur with the superior court as well. Next, the pretrial hearing takes place. This is where any motions and plea bargains can happen. If nothing is resolved, the case moves to trial. This is where you will ultimately be found innocent, not guilty, or guilty. Throughout this entire process, plea deals, motions, discoveries, sentencing, and probation can all take place.

There are different elements involved with a case outside of a trial. Bail might be an option for you, in which case you can post bail independently, through a bail bondsman, or through a property. A bail bondsman charges a non-refundable flat fee of 10% of your bail. Enrolling in rehab, anger management, and volunteer service can aid in showing remorse for you actions (if found guilty). A plea deal can also adjust itself as the case moves forward and different evidence is presented. This can work both ways: either evidence is presented in your favor or against you. An experienced attorney can determine the probability of which way the deal may go.

The sentencing judge may be a different judge from the judge in trial. The job of the sentencing judge is to craft the appropriate sentence based on the severity of the crime, any priors, and what the courts deem as the best sentencing to prevent this criminal for committing a crime again. The sentencing judge will look at the criminal history, the nature of the crime, personal circumstances, economic circumstances, social circumstances, and any genuine remorse shown by the convicted involved. Therefore, at this point, it is extremely important to show ultimate remorse. The methods best for your case can be determined by the experienced attorney you hired.

We understand that all of this is complicated and needs more detail. Monder Law Group has provided a custom Criminal Crash Course Guide to bring transparency to a criminal case. Here, you will find information on the kinds of penalties involved in your specific case, how to handle an arrest, and how to get the best possible results for your situation.

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WHAT CAN BE USED AGAINST YOU IN YOUR DUI TRIAL?

The Scenario: You’ve been arrested and charged with a DUI in San Diego. You don’t believe this is fair and want someone to fight for your rights. You hire a skilled criminal defense attorney who is well versed in DUI cases. The case does not settle and so you are set for trial. You’re discussing trial tactics with your defense attorney, but there seems to be a lot of background information you just don’t understand. Hopefully, this blog will clear up the background information on how/why your skilled criminal defense attorney will fight to exclude your Pre-Alcohol Screening (PAS) test results.

Getting the lingo correct:

• Admissible evidence— in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a fact finder—usually a judge or jury—to establish or to bolster a point put forth by a party to the proceeding.
• Hearsay— Information heard by one person about another. Hearsay is generally inadmissible as evidence in a court of law because it is based on the reports of others rather than on the personal knowledge of a witness. Hearsay is an out of court statement, any statement—written or oral, offered for the truth of what is written or said. And this is critical to DUI cases because prescreening tests are usually printed out, and the print out of the results is a “ writing.” And according to evidence rules, “ the content of a writing may be proved by an otherwise admissible original.” This means that the prosecution would have the officer testify to breath test results without offering the original statement (print out) of said results.
• Secondary Evidence— evidence that has been reproduced from an original document or substituted for an original item. For example, a photocopy of a document or photograph would be considered secondary evidence. Another example would be an exact replica of an engine part that was contained in a motor vehicle. If the engine part is not the very same engine part that was inside the motor vehicle involved in the case, it is considered secondary evidence. Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best evidence rule. This is especially important for your DUI case because: The rules of evidence also require the court to: exclude “ secondary evidence of the content of writing if the court determines: (1) a genuine dispute exists concerning material terms of the writing and justice requires the exclusion or (2) admission of the secondary evidence would be unfair.

How These Trial Aspects Come to Play:

Your skilled criminal defense attorney will know these rules of evidence and know that this is important if the officer does not print out the PAS test results. The officer cannot offer secondary evidence by way of their testimony of what the results were. This is hearsay. In fact, California courts have already made this analogy, to show how ridiculous this is: Proffering testimony about what the officer claims he saw instead of introducing the data from the machine “ is analogous to proffering testimony describing security camera footage of an event to prove the facts of the event instead of introducing the footage itself. And on top of all that: the testimony by the officer of the purported PAS test results is an out of court statement (not under oath) of a “ statement” made by a machine, offered for its truth, i.e. classic hearsay upon hearsay.

Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. The San Diego DUI trial process is not an easy one to maneuver—it takes skill, knowledge of both California law and San Diego court practices to successfully argue a case. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.

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YOUR DUE PROCESS RIGHTS WHEN IT COMES TO EVIDENCE AGAINST YOU

Due process balances the power of law of the land and protects the individual person from having their rights skirted. Due process is the legal requirement that the state must respect all legal rights that are owed to a person. When it comes to your DUI case, California courts have laid out clearly that due process is required—however, prosecutors are sneaky when it comes to shirking your rights. A skilled criminal defense attorney will know when to speak up and fight for your rights, each and every step of the way. This blog post will speak about the due process rights you have when it comes to evidence used against you in a DUI case.

The Evidence in Question:

The defendant submitted to a search of his/her body by way of a pre-alcohol screening (PAS) test at the request of the officer prior to his/her arrest. The defendant did not knowingly and intelligently waive his/her right to Due Process rights (includes right to collect evidence) due to his/her submission to a PAS test.

The Issue:

            The defendant was not told that these samples would not be saved; now the defendant nor his defense attorney has no opportunity to run an independent lab test of the results.

The law behind the issue:

If the chemical test chosen was breath, to have the Due Process right to obtain a back-up test of blood or urine so that the evidence of BAC is preserved. This statutory right, a choice [of blood or breath] was never offered re the PAS test as well as the due process requirement of the opportunity to preserve evidence.

**NOTE: Breath tests are not preserved. If you want a sample preserved, you can have a blood or urine test.

“The denial of an opportunity to procure one’s own evidence (e.g. a blood test) on a charge of intoxication prevents the accused from obtaining evidence necessary to his defense, and is a denial of due process of law.” Brown v. Municipal Court

The implied consent law of California creates a liberty interest of a choice of tests (blood or breath) to determine BAC that is entitled to the procedural due process protection of the Fourteenth Amendment. The policy of the arresting police officer deprives this citizen of due process, i.e. the choice of tests for BAC and the right to a preservable sample if there is a breath test for BAC. There is a mandatory requirement that the police pfficer tell you these options, as it can be a critical deciding factor in the outcome of the case.

In the scenario provided above, there was no warning that the police would use the PAS test to determine BAC. There also was no advisement of the right to a choice of test to determine BAC and there was no advisement of the Due Process right to a sample to preserve evidence of BAC as required by law.

Courtesy of: Stus.com

California courts have long-since established the following standard: Where a sample-testing legislative scheme has been established by state law in order to avoid due process concerns and the police fail to follow it, as occurred here, it is a violation of due process. However, it is not common sense, therefore you need a skilled criminal defense attorney on your side.

Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges, along with hefty fines and expenses. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.

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Extrapolated Retrograde Evid.

USING NEW SCIENCE TO GET YOU CONVICTED

Courtesy of: Harrisburg DUI Lawyer

In San Diego, as well as other parts of California, the tests administered prior to arresting someone for a DUI give the air of trustworthiness and accuracy, but the reality is that even those have potentially detrimental fallacies. San Diego police officers administer field sobriety tests on a regular basis, but these tests have not been satisfactorily proven to show whether or not someone is under the control of alcohol or drugs. Breath analyzers, another popular tool used to charge someone with a DUI, can be startlingly wrong if not appropriately calibrated and cleaned. Blood samples are not always correctly labeled and stored, due to human error or backlogged data. These are not complicated sciences, and yet there are still grave mistakes made regularly with all of them. Grave mistakes that slap San Diego residents with DUI charges.

After hearing this, what would you say if I told you San Diego police officers want to include a new method in which they can “figure out” how much you’ve had to drink or even what you’ve had to drink hours earlier? Sounds ridiculous and messed up, right? This is called retrograde extrapolation. This is the process of estimating alcohol content at an earlier time from measured alcohol content at a later time, in order to affect a DUI charge. In most traffic cases, this means providing an estimate of blood alcohol content (BAC) at the time of the offense based on the measured BAC at the time a sample of blood, breath or urine was obtained. Sometimes this sample can be taken several hours after the initial stop.

Why Would the State Want to Use This?

Because sometimes it takes police officers a long time to get a blood or urine sample, or even a Breathalyzer sample. Sometimes it can take a couple of hours after the initial detention that they get this sample. And then, when they finally do—the alcohol content is well below the legal limit (note: it might have always been). But this looks bad on the local police department, and so they want a way to show (by merely predicting) what the alcohol content was at the time of initial detention (read: they want to see a higher amount so they can charge you with a DUI).

San Diego criminal defense attorneys to create reasonable doubt as to the defendant’s guilt can use retrograde extrapolation evidence in DUI cases. And the prosecution will attempt to offer retrograde extrapolation evidence as proof of the defendant’s guilt beyond a reasonable doubt.

How to Deal With New Science:

In 1976 the California Supreme Court reached a unanimous decision regarding general principles of admissibility of expert testimony based on new scientific techniques. In that decision, the court required a three-step approach for admissibility of evidence based on new scientific techniques; (1) expertly established reliability of the technique represented, (2) testimony on the subject by a properly qualified expert, and, (3) adherence to the proper scientific procedures in the specific case. Such an evaluation of the admissibility of the opinion has been described as the “gate keeping” function of the trial court.

Basically, the evidence will come in, but your local criminal defense attorney will have time to pick apart the prosecution’s witness and show to the judge and jury just how “solid” this new science is.

Just know that based on the California Evidence Code and the recent decision of the United States Supreme Court, the standard is applicable to testimony based on training and experience as well as more traditional “scientific” knowledge. And also know that a skilled criminal defense attonrney will pull all the tiny hairs out of this standard and fight for your cause.

Driving Under the Influence (DUI) charges carry with them the possibility of both jail time and the loss of driving privileges. As with any criminal case, a DUI defendant makes a major mistake if he attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.

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Motion for Voir Dire

CHOOSING A JURY OF YOUR PEERS 

What Is Jury Selection?

Jury selection is the many methods used to choose the people who will serve on a jury. The jury pool, also known as the venire, is first selected from among the community using a reasonably random method. Jury lists are compiled from voter registrations and driver license/state ID renewals.

In most criminal trials, 12 people are selected to be on the jury. Up to 15 jurors can be empanelled if a trial is expected to last longer than three months. To be empanelled means to be chosen for a specific trial. During voir dire, attorneys attempt to delve more deeply into the jury panel member’s responses provided in their written juror questionnaires. The goal is to gain a better understanding of each person individually as well as potential group dynamics.

Note: A jury trial or trial by jury is a legal proceeding in which a jury either makes a decision or makes findings of fact, which then direct the actions of a judge. It is distinguished from a bench trial, in which a judge or panel of judges make all decisions.

Artist: Julie Larson

How Is The Jury Selected?

“Voir Dire” refers to the second stage of jury procedures, and is the process by which the court and the attorneys narrow down the pool of juries to the 12 people that will decide the case. The process for voir dire varies from state to state, and even from judge to judge. Sometimes, if the juror pool is too large, the judge will randomly pick some people and excuse them from duty. For many people, this is the best-case scenario.

Normally, however, the judge and attorneys will interview each juror about their backgrounds and beliefs. Sometimes this happens in front of the rest of the jury pool; sometimes this happens in private. Each attorney has the chance to object to jurors. There are two types of objections: “peremptory challenges” and “challenges for cause.” When an attorney challenges a juror for cause, there was most likely something in the juror’s background that would prejudice them in the case. For example, it is likely that an attorney would not allow a retired police officer to sit on a jury that decides a police brutality case. Attorneys do not need to give reasons for peremptory challenges, but each side only gets a limited number of these types of challenges. Of course, an attorney is not allowed to use peremptory challenges based on the race or gender of potential jurors.

That’s right—all this before even trial! Jury selection is a critical part of the judicial process. It is critical for you to have a skilled criminal defense attorney that can read a group of people well, and moves swiftly through the process. Because let’s face it—a jury is a group of your peers, and your peers are diverse. Some want to be here, others don’t.  

Why Is Jury Selection So Important?

For both the criminal defense and prosecution, voir dire constitutes a very important part of a jury trial. Effective voir dire can work to identify jurors who can be fair and impartial, rather than unfair and biased regarding a particular party or the entire criminal justice system. Clearly, the desired ultimate outcome in a jury trial is different for the prosecution and defense. However, both sides essentially have similar goals during the voir dire and jury selection process. Those goals include beginning to:

• Gather information about individual prospective jurors regarding their potential to be fair-minded and impartial, and to apply the law as instructed;
• Educate the jury about the parties’ respective theories of the case;
• Develop a rapport with, and earn the trust and respect of, the jury;
• Have the jury see the attorneys as dedicated, hardworking professionals, as well as people they can trust;
• For the prosecution, have the jury see the alleged victim as a real victim deserving of justice for all that he or she has been through, and regarding the accused, to keep and strengthen his or her identity primarily as the defendant;
• For the criminal defense, have the jury see the accused as a multi-dimensional individual and to humanize him or her;
• For the criminal defense, introduce the concept of presumed innocent until and unless found guilty beyond a reasonable doubt;
• Introduce the jury to potential problem areas in the case and commence dealing with those weaknesses; and
• Demystify the jury trial process and emphasize the importance, power and serious nature of jury service in a society governed by the rule of law.

As you can see, each and every step of the criminal defense process is critical and requires the training of a skilled criminal defense attorney. As with any criminal case, a defendant makes a major mistake if he/she attempts to make their way through the system without an aggressive criminal defense lawyer to stand up for their rights. Contact Monder Law today for a free San Diego DUI attorney initial consultation regarding your case. Vik Monder represents clients in throughout San Diego.