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CAN I JUST SAY “NO”?

Under California’s implied consent law, you are required to submit to a DUI breath test or a DUI blood test if you get lawfully arrested for driving under the influence. Refusing to do so typically results in increased penalties (in addition to standard California DUI penalties). This is because such a refusal is called a willful refusal and legally defined as being both intentional and unreasonable.

Here’s the law behind this issue:

California Vehicle Code Section 23577 reads as follows:

(a) If any person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612, the court shall impose the following penalties:

• If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
• If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
• If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
• If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
• If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.

(b) The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and proven.”

Simply put: If you refuse a chemical test as part of a first DUI investigation then your driver’s license will be suspended for a year. For most people this is way worse than the added jail time. If it is a second DUI or greater, within the last 10 years, then the suspension for a refusal will be two or more years. EEKS!

How Does This Play Out in Trial?

Firstly, I hope you hire a skilled San Diego criminal defense attorney to know how to argue this matter for you. Secondly, your skilled criminal defense attorney will know to that before the prosecution can use this refusal against you, they must prove the following:

1. The defendant drove a motor vehicle;
2. That the defendant was offered a choice of blood or breath test for the purpose of determining the alcoholic content of his blood;
3. That the defendant was made aware of the nature of such tests and their purpose; and
4. That after being offered such a choice of tests, and being made aware of their nature and purpose of such tests, the defendant willfully refused to take any of said tests.

Each one of these four points are starting defenses for a skilled criminal defense attorney, and if they can prove just one—the refusal cannot be used to show such conduct shows a consciousness of guilt that the prosecution is attempting to prove.

Courtesy of Toon Pool

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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CAN YOU ALWAYS RELY ON THE PRESENTED SCIENCE?

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. This means assessing ALL aspects of the DUI arrest. This post will focus on the accuracy (or lack thereof) of breath tests.

In San Diego, a blood alcohol content of 0.08 or higher is ground for a DUI. But how is that measured? And is it always accurate?

There are three methods of BAC testing normally used in California, the most accurate method being a blood test. However, blood tests are inconvenient and invasive; a blood sample must be drawn from subjects’ veins in a hospital or clinical setting. As a result, breath tests using handheld devices, also called “breathalyzers” and “preliminary breath testers” (PBT), are employed in the field by law enforcement to assess BAC because they are lightweight, portable, and easy to administer. Easy to administer means easy to charge someone with a DUI, but it does not necessarily mean accurate.

Photo Courtesy of Mesa, AZ DUI Laywers

Factors that Can Affect Breath Test Accuracy:

Nevertheless, one should always be aware that a Breathalyzer is a machine that can be influenced by outside factors if the user is not careful. Here are just a few than can potentially cause errors (that could result in a DUI charge against you): 

• Foreign Substances – Substances present in the mouth that contain alcohol can produce false positives because the amount of alcohol vapor they emit may be greater than the amount exhaled from the lungs. For example, some mouthwashes, breath fresheners, and toothache medicines contain alcohol and can skew readings. 
• Calibration – Breathalyzers must be calibrated periodically and batteries must be replaced in order to maintain accuracy.
• Software – Breathalyzers run on special software, just as computers rely on operating systems, which can result in occasional bugs and glitches. 
• Human Error – As easy as breathalyzers are to use, they still require some attention to detail. 
• Consistency – To ensure accuracy, breath tests should be performed multiple times to produce a reliable result. Breathalyzers that utilize fuel cell sensor technology provide the most reliable and accurate results in repeated tests.
• Environmental Factors – False results can be triggered by the presence of paint fumes, varnish, and chemicals such as plastics and adhesives.
• Mouth Alcohol – If a person has alcohol present in their mouth, this can throw off the breath test result dramatically.  Alcohol can be caught in chewing tobacco and even in dentures or other dental work.  Mouth alcohol can also be a result of vomiting or belching, or a breath spray or mouthwash. 

So How Am I Protected Against This Inaccurate Machine?

Your biggest strength is the skilled San Diego criminal defense attorney you called. A knowledgeable criminal defense attorney will know what challenges to bring up and when to make those challenges. A knowledgeable criminal attorney will know to instruct the jury of your peers that:

1. The particular machine utilized for analysis of the breath sample was in proper working order at the time of the test;
2. The breath test was properly administered and proper procedures were followed; and
3. The operator was properly trained, competent, and qualified. If the prosecution has not unanimously convinced you beyond a reasonable doubt of each of these three preliminary facts, you must disregard the breath test.

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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HOW RELIABLE ARE FIELD SOBRIETY TESTS?

Photo Credit: http://www.newyorker.com/images/2013/06

What is a Field Sobriety Test?

Field sobriety tests are used to enforce DUI laws and usually precede Breathalyzer tests. A police officer typically performs a three-part field sobriety test after a traffic stop where there is suspicion that the motorist may be drunk or otherwise impaired. These tests allow an officer to observe a suspect’s balance, physical ability, attention level, or other factors that the officer may use to determine whether the suspect is driving under the influence.

Officers record the suspect’s performance on a field sobriety test to be used as evidence in DUI cases; such tests generally have been upheld on appeal. The purpose of all sobriety tests is to ensure that a police officer has probable cause to arrest someone for driving under the influence.

The Standardized Field Sobriety Test (SFST) endorsed by the National Highway Traffic and Safety Administration (NHTSA) consists of the horizontal gaze nystagmus (HGN), walk-and-turn (WAT) and one-leg stand (OLS):

• One-Leg Stand: Suspects are asked to stand with one foot about six inches off the ground and count for 30 seconds. Swaying while balancing, using arms to balance, hopping or putting the foot down indicate possible impairment.
• Horizontal Gaze Nystagmus: This term refers to the involuntary jerking of the eye that occurs naturally when the eye gazes to the side. But this jerking (or nystagmus) is exaggerated when someone is impaired by alcohol. Officers look for three indicators of impairment in each eye: inability to follow a moving object smoothly; distinct eye jerking when eye is at maximum deviation; and eye-jerking within 45 degrees of center.
• Walk and Turn: The purpose of this test, determined to be easily done by most unimpaired people, tests the suspect’s ability to complete tasks with divided attention. This is administered by requiring the suspect to take nine steps, heel-to-toe, along a straight line; turn on one foot; and then return in the same manner in the opposite direction.
• Other, non-standardized field sobriety tests may include one or more of the following: standing with feet together and tipping the head backwards; counting the number of fingers an officer raises; reciting the alphabet; counting backwards; standing and leaning back to look up at the sky while holding arms to the side; or closing the eyes and touching nose with finger. 

What is the Purpose of FST?

When an officer suspects a driver of being in violation of the law—with a blood alcohol level that’s higher than the legal limit—the driver will be asked to step out of the car to take a field sobriety test. The purpose of this is to have a standard method for gathering evidence to allow the officer to administer a blood or breath test to determine the driver’s blood alcohol level.

The field sobriety test is a way of determining if the driver really is impaired. Failing a field sobriety test gives the officer probable cause to believe the driver can’t safely drive, so then a blood or breath test can be legally given to establish that the driver is over the legal limit. 

Are FST Accurate?

            The scientific notion behind the FST is constantly questioned by defense attorneys, and with good reason. Because, as “scientifically” proven they are to show someone’s likeliness of inebriation, they also depend entirely on the police officer’s subjective perception. The same, tired, overworked police officer—who’s heard every excuse in the book and now resents everyone driving late at night.

4. Spurgeon Cole of Clemson University decided to do an experiment to see how good police officers were at distinguishing someone who is under the legal limit from someone who is too drunk to drive, based entirely on watching them perform field sobriety tests. 14 police officers were shown videotapes of 21 subjects taking six common field sobriety tests and were asked to decide which “had too much to drink and drive.” On average, the police officers determined that 46% of the subjects were legally intoxicated. So how did they do? Not well, especially considering that not a single subject had consumed alcohol. In other words, the blood alcohol level of every subject was .00%—as sober as you can get. The officers might as well have guessed randomly. This is a particularly disquieting result considering that, if the officers and pulled these individuals over, they would have arrested an innocent person half of the time. (Cole and Nowaczyk, “Field Sobriety Tests: Are they Designed for Failure?” 79 Perceptual and Motor Skills Journal 99, 1994.)

            Okay, but are the tests scientific, themselves? In the late 1970’s the federal government gave a grant to a research group called the Southern California Research Institute (SCRI) to come up with a series of field sobriety tests that were more reliable that the ones being used at the time. The tests that the group eventually came up with, by their own admission, were still far from perfect. The groups own data showed that roughly half of subjects tested would have been arrested, despite their BAC being under the legal limit. Unsatisfied with these results, the federal government gave SCRI another crack at it. In 1981 they came up with some better data. This time roughly 30% of subjects would have been falsely arrested. Put another way, field sobriety tests made subjects appear more intoxicated that they actually were in the minds of the police officers. 

What Do I Do?

This is the easiest part. DO you research on good criminal defense attorneys, and hire one that knows how to argue these points while using previous court rulings and legal standards.

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MAKING SURE THE PROSECUTION MAINTAINS ITS STANDARD

Understanding ‘Beyond a Reasonable Doubt’

The due process clauses of the Fifth and Fourteenth Amendments “[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock basic principle whose enforcement lies at the foundation of the administration of our criminal law.

Courts over the years have debated the extent to which the government has to prove its case to meet this high standard. But it’s clear that, according to the standard, it’s not enough for the trier of fact to simply believe the defendant is guilty. Rather, the evidence must be so convincing that no reasonable person would ever question the defendant’s guilt. The standard requires that the evidence offer no logical explanation or conclusion other than that the defendant committed the crime. Courts sometimes describe this level of confidence in a verdict as a moral certainty. This means there is a great likelihood that the accused committed the crime. And though most courts refuse to attach any numbers to the phrase “beyond a reasonable doubt,” some people believe it means 90%, 95%, or even 99% confidence that the accused did the crime.  

Photo Courtesy Of: voiceforthedefenseonline.com

What the Reasonable Doubt Standard Means: 


1) The burden is on the prosecution to prove both that the defendant committed the crime AND that he/she did so in a negligent OR intentional manner.

2) The prosecution must also prove all the important facts suggesting a defendant is guilty. (This would include things like whether or not the defendant was at the scene of the crime when it was said to occur or whether or not the defendant was aware of his/her actions when he/she committed the crime.)

3) The defendant is not required to prove he/she is not guilty.

4) In deciding whether or not a defendant is guilty, a jury must consider and carefully evaluate all the relevant evidence presented in a case.

5) In order to convict someone, a jury must find the proof in a case SO strong that it has no honest, reasonable doubts as to any element of the crime or the defendant’s identity as the perpetrator of the crime.

6) If there is doubt, and it is reasonable, as to the defendant’s role in ANY required element of the crime, then the jury must find the defendant not guilty.

What the Reasonable Doubt Standard DOES NOT Mean: 


1) The Reasonable Doubt standard DOES NOT mean the prosecution has to prove a defendant is guilty beyond ALL possible doubt. Some doubt over the facts in the case and/or the guilt of the defendant can exist. In order to convict someone, however, these doubts must be small/negligible enough for you to still be reasonably convinced that someone is guilty based on all the available evidence.

2) On the other hand, the Reasonable Doubt standard is NOT met if the defendant is found only “probably guilty”. There must be stronger proof than this.

3) The Reasonable Doubt standard cannot be fulfilled on baseless speculations, bias or sympathy for the defendant or the victims.

Simply Put:

Proof of guilt beyond a reasonable doubt is proof that leaves you convinced of the defendant’s guilt that you have no doubt of the existence od any element of the crime of defendant’s identity as the person who committed the crime charged.

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YOUR ALCOHOL TOLERANCE SHOULD NOT BE USED AGAINST YOU

Getting arrested for a DUI is a scary moment, and standing trial for a DUI can be even scarier. One minute you’re having a great time with friends and colleagues at a happy hour event in the lively Gaslamp district, and the next you’re blinded by flashing lights and loud sirens. In such cases, it seems like the prosecution has made it their mission to paint you as the bad guy—as some evil partier who drinks to excess and has no regards for other.

Question: But everyone makes mistakes, so shouldn’t there be some sort of reigns you can put on the prosecution? Yes, and the smart defense attorney will use them skillfully.

The prosecution will try to admit showings of tolerance—how people who drink excessively on a regular and prolonged basis—makes it harder to determine their actual blood alcohol content. Really, what they’re doing is telling the jury you’re a regular excessive drinker.

But how can they say such things without proof? They do this by making statements that generally excessive drinking can lead to tolerance, and so without naming you directly, they’ve let the jury decide that you’re a perpetual drunkard. But this is where your brilliant defense attorney will come to the rescue! Your attorney should argue that: 1. If there’s no showing of your dirking pattern, then this statement is based on mere speculation, is incorrect, and should be excluded. 2.  If the statement is made about tolerance in general, then it is not specific to the case at hand, thus irrelevant and wasting the court’s time.

The Law on the Matter:

• To allow the prosecution to present “general” evidence of tolerance, inferring that the defendant’s conduct and responses to alcohol may be in conformity therewith, would violate Due Process and the Right to a Fair Trial. To admit “tolerance” evidence violates the Constitutional presumption of innocence and reverses the burden of proof. The people have the burden of proof of all facts that point towards guilt. And to allow the prosecution to admit “general” evidence of “tolerance” without connecting it to the defendant would assume facts not in evidence.
• There are rules of evidence that probibit the character evidence of excessive drinking and prolonged drinking, because of the huge bias it forms in the mind of jurers.
• To allow “tolerance” into evidence and somehow suggest that this defendant may have the ability to mask the effects of alcohol would deny the defendant a fair trial and due process. The prohibition against character evidence is based on Fourteenth Amendment principles of “fundamental fairness.” (Cooper v. Oklahoma (1996) 517 U.S. [134 L.Ed.2d 498]; see also McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378.)
• Take Away: The prosecution cannot “assume” facts. The prosecution cannot make this defendant a victim of profiling. If the court allows evidence of “tolerance” to alcohol, without a foundation, it would violate the policies which exclude character evidence as well as the prohibition of specific incidents of bad conduct.

A Quick Primer on Understanding Alcohol Content:

The size of a container is not the best way to measure “a” drink. To make low-risk drinking choices and avoid negative consequences as a result of drinking, we need a standard measure that will apply to different kinds of alcoholic beverages regardless of how they are served.

Beer – Most domestic beer is 4 to 5% alcohol, served in 12-ounce cans or bottles. This means an average beer contains about ½ ounce of pure alcohol.

Wine – The average table wine contains 12% alcohol, so 4 ounces of wine would contain about ½ ounce of pure alcohol.

Liquor/Distilled Spirits – One ounce of 100 proof distilled spirits would contain ½ ounce of pure alcohol.

Measured in this way – beer, wine and liquor contain about ½ ounce of pure alcohol, which is a little more than the average amount of alcohol that the body can metabolize in one hour. For this reason, that amount has become the standard for one drink. Depending on their glass or container, some “single” serving drinks may be the equivalent of two or more standard “drinks.

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Keeping Everything Fair and Balanced: Badly Behaved Prosecutors Ruining the Balance

Photo courtesy of: wrongfulconvictionsblog.org

The justice system can only be called a justice system if all aspects of it are fair and evenhanded. The minute an iota of corruption surfaces, the entire system suffers—and eventually breaks down. The United States, while not perfect, is still striving for balance. And when bad behavior occurs on either side, there is an available remedy. California courts have preserved this avenue, as well. This post will deal specifically with prosecutorial misconduct.

But First a Primer:

What is prosecutorial misconduct?

Prosecutorial misconduct occurs when a prosecutor breaks a law or a code of professional ethics in the course of a prosecution. The Supreme Court has defined it as “overstepp[ing] the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.”

Types of Prosecutorial Misconduct:

• Asserting or referring to facts that haven’t been proven in the trial
• Referring to inadmissible evidence
• Once evidence has been deemed inadmissible, you cannot bring it in trial. Sometimes, prosecutors will try to hint at this evidence, which is also not allowed. Such as a criminal history not relevant to this case.
• Commenting on the defendant’s choice not to testify at his/her own trial
• This is your right under the United States Constitution. And by commenting on your failure to testify—the prosecutor may be hinting that you have something to hide. This, in turn, violates your constitutional right to choose not to testify.
• Expressing personal opinions about the defendant’s guilt
• This is a tricky rule to grasp, and you need a skilled defense attorney to be able to spot when this becomes misconduct. But the general rule is that a prosecutor may express his/her personal opinion if that opinion has some basis in the evidence presented. But if it is unfounded and based on nothing, it may be prosecutorial misconduct to express it.
• Making inflammatory statements designed to appeal to the passions of the jury
• For example, it is prosecutorial misconduct to ask the jury to try to imagine how the victim felt when the crime was committed.
• Withholding evidence that would have helped the defense case
• Example: Tom is on trial for robbery and murder. His defense is mistaken eyewitness identification. He is found guilty. But it turns out that the prosecutor knew that one eyewitness had eliminated Tom as the man he saw in the vicinity of the crime scene. But the prosecutor had not disclosed this fact to Tom or his lawyers. This is serious prosecutorial misconduct and justifies a reversal of Tom’s guilty verdict.

Why do prosecutors have this burden?

They hold a great deal of power. Prosecutors are entrusted with determining who will be held accountable when a crime occurs. They work with the police as they gather evidence and build a case against a suspect and then they take that case to court and are charged with convincing a jury of the guilt of the suspect. First a foremost, it is the prosecutor’s job to seek justice and present the judge and jury with facts and legal arguments that result is the conviction of the guilty defendant.

How Often Does This Actually Occur?

Given the nature of this offense, a clear percentage is hard to be determined. But researched for the California Innocence Project, claim the following: In their analysis of the causes of wrongful convictions in cases where the conviction was overturned based on new DNA evidence, researchers found that prosecutorial misconduct was a factor in from 36% to 42% of the convictions. This is an alarmingly high percentage. And while you may think the statistics are biased based on their source, the main take away is that there should NOT be any amount for this percentage. This should not occur at all, because while there may be human mistakes made, there are available remedies that the defense side should immediately demand.

Available Remedies of Prosecutorial Misconduct:

The way to raise an argument of prosecutorial misconduct is through a California motion for a new trial. You and your attorney must bring the motion for a new trial before your sentencing (or the judge’s grant of probation, or your commitment as an addict or insane person, if that was the outcome of your case).

Other issues that are commonly addressed in a motion for a new trial, besides prosecutorial misconduct, include:

• Jury misconduct ,
• Ineffective assistance of counsel,
• Error of law by the judge,
• Insufficient evidence, or
• The discovery of new evidence.

If you or loved one is in need of help with prosecutorial misconduct and you are looking to hire an attorney for representation, we invite you to contact us at the Monder Law Group.

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WINNING THE DUI CASE OFTEN OCCURS BEFORE THE TRIAL

Challenging stops, blood or breath results after PAS tests, roadblocks, and tolerance. In common law legal systems, a motion to suppress is a formal, written request to a judge for an order that certain evidence be excluded from consideration by the judge or jury at trial.

Careful motion practice plays a part in the overall strategy, attacking drunk driving tests. The walk-off home run motion, the suppression motion, seeks to exclude any evidence obtained from an illegal stop. This motion in essence attacks all drunk driving tests simultaneously by seeking to eliminate all of the tests from trial. Other motions attack only a particular test, for example, the preliminary alcohol screening device test, or the results of a blood test.

While the primary purpose of motions attacking drunk driving tests is to exclude the evidence from trial, there are also significant tangential benefits to filing motions. This is true even if the motion does not ultimately prove successful in accomplishing the primary purpose of exclusion.

A SMART ATTORNEY WILL FIGHT TO GET YOUR PAS TEST EXCLUDED

One of the more intriguing suppression motions in a drunk driving case is the motion to exclude a blood or breath test that was taken after the police had already given the suspected drunk driver a preliminary alcohol screening device test.

The United State Supreme Court has permitted the warrantless seizure of a blood test of a suspected drunk driver. [Schmerber v. California (1966) 384 U.S. 757.] In that case the court held that, given the metabolizing of alcohol in a person’s body, time did not permit the seeking of a search warrant. The urgency to obtain the blood sample created the exigent circumstances, which in turn eliminated the warrant requirement.

However, the point of this motion is that after obtaining a breath sample with a preliminary alcohol screening device test there are no exigent circumstances to justify a warrantless seizure by a subsequent blood or breath sample. (This argument if successful, will go leaps and bounds to help you win the case).

The lawfulness of the police taking a blood or breath sample after already having obtained a P.A.S. test is an issue that pervades drunk driving cases across America. It occurs, and reoccurs, perhaps dozens if not hundreds of times a night across the land. The issue is wrapped in fundamental principles of constitutional law. Sooner or later the United States Supreme Court will be called upon to decide the issue.

The simplicity behind the reasoning of the motion belies the strength in its argument. There is no easy reply to resist the logic behind the motion.

*NOTE: A judge doesn’t need to rule on a pretrial motion in limine before a trial begins. Sometimes judges wait until a trial starts to rule on the admissibility of evidence. A typical order in limine excludes the challenged evidence and directs counsel, parties and witnesses not to refer to the excluded matters during trial.