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Failure To Follow Requirements Of Vehicle Code Section 23614

The defendant submitted and completed a breath test to determine his/her blood alcohol content. The law requires that a person should be informed with the requirements of the Vehicle code § 23614. When a person chooses to submit a breath test must be advised before or after the test that the breath testing equipment does not keep any sample of the breath and it will not be available after the test.

The person must be informed that a breath sample is not secured, the person will have the opportunity to grant a urine or blood sample that will be secured at no cost so that there will be something secured to analyze for the alcoholic content of the person’s blood. A person who completes a breath test and wants to grant a urine or blood sample to be secured, the sample must be secured and collected in the same way as if the person would have chosen a urine or blood test. The person should be informed that in any criminal prosecution, the urine or blood sample could be tested by either party.

If the requirements of the Vehicle Code § 23614 have been violated, you are instructed that you are allowed to use that information as a factor bearing on the credibility of the law enforcement authorities who were involved and the accurate of the breath test results.

In People v. Alvarado, Alvarado (Defendant), filed for a motion to suppress the results of the breathing test because the officer violated the Vehicle Code § 23614, which states that breath samples should be preserved and breath analyses test could not be used at trial.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

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“Driving” Defined under Driving Under the Influence Charge in San Diego

To prove that the defendant was driving a vehicle, the prosecution must prove that the vehicle was moving and that the defendant caused the movement of the vehicle.

Authority: Mercer v. DMV (1991) 53 C3d 753, 280 CR 745

The DMV (Appellant) revoked Mercer’s (Respondent) driving privileges because respondent refused to submit to a chemical test after his arrest for driving under the influence. The court reversed the lower court and stated that respondent’s license could not be revoked pursuant to Cal. Vehicle Code §§ 23517 (renumbered to 23612) and 13353 because he was arrested unlawfully while being intoxicated pursuant to §23152(a). Cal. Vehicle Code § 23612 states that a person who is driving a vehicle is agreeing to a chemical test of his/her blood or breath to determine how much alcohol the person has on its blood. Section 13353 states that if a person refuses to submit a chemical test pursuant to section 23612, the DMV can suspend the person’s driving privilege for a year. Section 23152(a) states that it is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle. The court states that the phrase “to drive a vehicle” is a voluntary movement of a vehicle and not “operating a vehicle”

People v. Wilson (1985) 176 CA 3d Supp. 1,222 CR 540, fn5

Wilson (Defendant) was convicted for driving under the influence in violation of Cal. Vehicle Code § 23152(a) and Cal. Vehicle. Code §23151(a) (renumbered to § 109) which states that “alcoholic beverages” are liquids that contain alcohol and are ingested by a person. The conviction was upheld because the court argued that a person of common intelligence understands the phrase “to drive” as a volitional movement of a vehicle.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer

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Understanding Field Sobriety Tests in a San Diego DUI Case

The prosecution’s job in every San Diego DUI case is to gather enough objective and comprehensive information to form a reliable opinion about intoxication. Generally, field tests are not as reliable as a chemical test. However, an indicator of determining impairment is observing the cues of the defendant during the field sobriety test. The field sobriety tests are less reliable and a poor indicator of impairment because you are pre-destined to fail! This means if the officer believes under the totality of circumstances that you failed, and then you failed! Tell the officer you have medical conditions that prevent you from engaging in the test, and then do not do them! Not even an attorney understands the instructions when an officer asks to stand on one foot and count backwards. The whole purpose behind the field sobriety test is to gain enough probable cause to perform a chemical test. If you can avoid the field sobriety test all together, then do not do it.

However, you are only reading this probably after you already took the field sobriety test. This is the advice I have for all the people who already took the test, the field sobriety test is not enough to find you guilty beyond a reasonable doubt. Generally, the field test can only enable an officer to develop probable cause for the arrest and assist in establishing possible physical or mental impairment at time close to driving. The goal is to find a casual relationship between alcohol and driving behavior.

There is a difference between standardized and non-standardized field sobriety tests. Standardized tests can be correlated with impairment if administered in strict compliance with the testing protocols. Non-standardized tests have no validity or corroboration of any correlation to impairment by the National Highway Traffic Safety Administration. The standardized tests include only the horizontal gaze nystagmus, walk and turn, and the one leg stand. Police officers are aware of the importance of the standardization in learning the procedural aspects of the field sobriety examination. I have trained with them in the classroom setting and often instructors will tell them that only three tests can be correlated to impairment if conducted correctly.

Often times professional police work takes a back seat at the beginning of the police DUI stop and arrest. They do not give correct instructions; they calculate incorrect cues based on improper examination techniques. These tests are designed for reliability and information is often suppressed during the trial setting stage if not done correctly.

If you have any questions about the Field Sobriety Test in your San Diego DUI case, contact San Diego DUI Defense attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

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Understanding the Clues Officers look for when pulling Someone Over for a DUI in San Diego

The National Highway Traffic Safety Administration (NHTSA) have developed standards for local police to consider in determining whether a driver may have a BAC above a .08%

Local police in San Diego will pay special attention to various factors that suggest a high probability of impaired driving to make a valid DUI arrest when:

• Turning with a wide radius: the distance between the turning vehicle and the center of the turn is greater than normal.
• Straddling center or lane marker: vehicle is moving straight ahead with the center or lane marker between the left and right wheels.
• Appearing to be drunk: eye fixation, tightly griping wheel, slouching in seat, erratic or obscene gestures, face close to windshield, drinking in the vehicle, driver’s head protruding from the vehicle.
• Almost striking object or vehicle: passing abnormally close to an object or vehicle, causing another vehicle to maneuver to avoid collision.
• Weaving: moving from one side of the roadway to the other in a zig-zag course.
• Driving on other than designated roadway: driving at the edge of roadway, on the shoulder, off the roadway, straight through turn-only lanes.
• Swerving: an abrupt turn from a straight course.
• Speed slower than 10 m.p.h. below limit
• Stopping without cause in traffic lane; stopping without observable justification
• Tires on center or lane marker; the left hand set of tires is “consistently” on the center line, or either set is “consistently” on the lane marker.
• Driving into opposing or crossing traffic: driving into opposing lane, backing into traffic, failing to yield the right of way, driving the wrong way on a one-way street.

Majority of the time a vehicle is pulled over in San Diego and the driver is arrested for a DUI when he or she fails to yield i.e. stop sign! Many DUI arrests occur based on a driver’s failure to yield. NHTSA has estimated this act constitutes the highest probability of impaired driving versus any other clue.

If you have questions about the validity of the stop in your San Diego DUI case, contact an experienced San Diego DUI defense attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Lawyer

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Chemical Test Validity in a San Diego DUI Case

In determining the validity any kind of chemical test for alcohol level, you must decide or not if the method was used properly, if the tests were well administrated, the operator of the equipment was adequate and the equipment was working appropriately. If it is believed that one of these elements is missing, you are authorize to decline such evidence.

In People v. Adams (1976), Appellants challenged their convictions by arguing that the laboratory failed to fulfill with the calibration procedure. The court disagreed with the appellants challenge and held that determining the validity of the tests was properly administered, the equipment was functioning appropriately and the operator of the equipment was adequate to use.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

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Choice of Test to Administer in a San Diego DUI Case

V.C. Section 23612 (a)(d) People v. Alvarado 181 Cal. App. 3d Supp.3

The defendant has the right to choose whether the chemical test shall be of his blood or breath. The officer must advise the person that he/she has that choice. If the defendant requests such test, the officer must perform it.

If the requirements of the Vehicle Code are violated by the officer, that violation may be considered as a factor bearing on the credibility of the officer and the accuracy of the breath test administered by the officer. 

In People v. Alvarado, Alvarado (Defendant) was charged for driving under the influence and the arresting officer did not give defendant his choice of test. Violation of Cal. Vehicle § 23157.5 allowed the trial court to grant defendant’s motion to suppress the results of a breath test. Cal. Vehicle § 23157.5 states that a person who chooses to submit to a breath test, he/she must be advised that a breath sample cannot be saved and the person must take a urine or blood test. The court reversed the trial court’s decision to grant defendant’s motion to suppression because it was not intended to raise additional boundaries to the admissibility of intoxilyzer testing. If defendant would have presented evidence that the arresting officer violated the law, defendant would have been entitled to a jury instruction. Being entitled to a jury instruction would have allowed the jury to consider the officer’s failure to inform defendant of his rights.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer

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Credibility of Injured Witness Seeking Damages in a San Diego DUI Case

Under the laws of the State of California, in any action to recover damages from the use of a motor vehicle, a person must not recover non-economic losses to compensate for suffering, pain, physical impairment, and other damages if any of the following applies:

• If the person was driving under the influence and is convicted of that offense.
• If the owner of the vehicle was involved in the accident and the vehicle was not insured by the financial responsibility laws of the State of California. The person cannot recover non-economic losses, unless the person who was driving under the influence caused the injury and was convicted of that offense.
• Any person involved in a accident could have financial interest in helping the prosecution to obtain a conviction of the defendant’s charged. This information can be considered, deciding whatever weight you choose, in judging the credibility of the testimony of any witness who has financial interests in the aftermath of this case.

In Allen v. Sully-Miller Contracting Co., Allen (Plaintiff) had an accident when driving his uninsured motorcycle. Plaintiff was injured in a single-vehicle accident when he was trying to turn across an unmarked elevated bus pad on a public roadway. Plaintiff brought a negligence action against a construction company that maintained control over the roadway when the accident occurred. The tire of the motorcycle was seen on an uneven street surface, which caused the motorcycle to fall, and plaintiff thought he could recover for damages. The California Supreme Court held that Civil Code Section 3333.4 barred plaintiff from recovering non-economic losses.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Attorney

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Blood Sample Can Be Taken by Police without Your Consent

The police are allowed to withdraw blood samples to determine blood alcohol content from a person who was arrested from driving under the influence. During trial, the results from the chemical test can be used. The defendant is not required to agree to submit to the test.

In people v. Ryan (1981), Ryan (Appellant) was convicted for driving under the influence, refusing to stop at the scene of accident and reckless driving. Under Cal. Vehicle Code § 13353, appellant was not authorized to suppress the blood alcohol test results. The Cal. Vehicle Code § 13353 mention sanctions for failure to submit to blood alcohol tests.

In People v. Mills (1985), Mills (Respondent), was charged of driving under the influence and with excessive blood alcohol proximately causing injury. The trial court held that it failed to advise the respondent that there would be no preserved sample of a breath test. The Court decided to reverse the order because the officers did not have to advise the respondent that the blood results would be admissible against him at trial. The court determined that the officer had no duty to advise the respondent, who decided to chose a breath test instead of a blood test.

In Schmerber v. California (1966), Schmerber (Defendant) was convicted of driving under the influence and while receiving treatment at a hospital from his injuries, a blood sample was taken by a physician under the supervising of an officer. The blood sample was taken without a search warrant and with the advice of counsel to allow the blood test.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Lawyer

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Calculation of Blood Alcohol Level In a San Diego DUI Case

Establishing the exactitude calculation of blood alcohol level of the amount of alcohol in a sample of urine, you are advised that the law requires that the blood alcohol level should be reported by using a calculation based upon the relationship if the amount of alcohol in 1.3 milliliters of blood equals to the amount of alcohol in 1 milliliter of urine. You are not required to accept the reported blood alcohol level as correct. [You can decide from the expert opinion if the facts are based on before deciding if to accept or reject it.] [When deciding the facts of the opinion based on, you are aware that all evidence admitted during trial was relevant evidence, that no evidence was admitted, you are not allowed to use and none of the evidence should be ignored.]

In People v. Thompson (Appellant), appellant drove under the influence with 0.10 percent or more, by weight, of alcohol in his blood. Appellant claimed that the trial court was incorrect limiting examination of expert witnesses regarding the partition ratios. Appellant did not present evidence at trial showing that there was a mistake in the charge committed. The judgment convicting the appellant was affirmed.

On the other hand, in People v. Lepine (Appellant Defendant), appellant defendant submitted a breath test based on ratio set in the Cal. Code Regs. tit. 17, § 1220.4(f). Cal. Code Regs. tit. 17, § 1220.4(f) states that a breath alcohol concentration must be converted to an equivalent blood alcohol concentration. It must be equivalent by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood. Based on the Cal. Code Regs. tit. 17, § 1220.4(f), appellant asserted that her blood alcohol percentage was 0.13. The court upheld the conviction because appellant should have been allowed to offer evidence regarding partition ratio variability.

If you have any questions about your DUI case in San Diego, please contact San Diego DUI attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Attorney

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Hiring an Expert In a San Diego DUI Case Is an Important Process

In every single DUI case that goes to trial the most critical aspect of the case is what the expert is going to say on the stand. There are many defenses in DUI cases. However, the vast majority of them require expert testimony to help jurors better understand the facts of the case. Even the most knowledgeable attorneys will need expert testimony at trial. When you retain a private attorney please be aware of the importance of having an expert testify on your behalf if the case proceeds to trial.

Majority of all cases will not proceed to trial. However, if you feel like you have a strong defense, then make sure the attorney knows the type of expert necessary to articulate those facts to the jury. There is a checklist that attorneys go through in selecting and hiring an expert in your San Diego DUI case.

First, a toxicologist is generally preferred over a criminalist. The expert should have participated in some correlation studies. Some experience performing bench work analysis of specimens for alcohol content is virtually mandatory. If someone other than the analyst testifies to an alcohol result at trial that is grounds for a valid hearsay objection under the confrontation clause via Crawford v. Washington. The prosecution should be smart enough to bring in experts that played a role in the preservation of evidence in the case. Sometimes there is chain of custody issue and the certain person responsible does not show up and the prosecutions case is at a stand still. For the defense, it is important to have an expert to pick up where the prosecution’s case ends. This is advantageous for many reasons. The burden is on the prosecution to prove each and every element beyond a reasonable doubt and if our expert pokes holes in the case after the prosecution presents their case in chief, then it becomes a lot easier for a jury to find a defendant not guilty for a San Diego DUI charge.

Anytime I hire an expert for any case I make sure once I get the discovery, the expert also has a copy of it for their personal record. It makes the conversations easier to discuss when the attorney and the expert are on the same page. Always be in constant communication with a toxicologist specialist and not a general criminalist because there is a huge difference in the perception of the jury. As an experienced criminal defense attorney I would not allow a paralegal to try my cases as you should not have a general criminalist testify to what a experienced forensic toxicologist would specialize in. Hiring Monder Law Group, PC you are getting the best in San Diego DUI defense and we would not choose a tier 2 expert to testify on your behalf.

If you have questions about the San Diego DUI process feel free to contact Attorney Vik Monder at 619.405.0063 or visit San Diego Criminal Defense Lawyer