DUI - Due Process - Monder Criminal Lawyer Group CA

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San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

San Diego County Charge: Out of county resident charged with felony assault and battery involving multiple victims and great bodily and serious injuries Result: Verdict, Not Guilty on All 7 counts of Assault and Battery with Great Bodily Injury and Multiple Strikes.San Diego County Charge: 69 year old man driving under the influence of methamphetamine onto oncoming traffic Result: Hung Jury and District Attorney Dismissed DUI San Diego County Charge: Mother of two evading police in hit and run charge with serious bodily injury Result: District Attorney Dismissed after Successful Line-Up Motion San Diego County Charge: Juvenile charged with running over her ex boyfriend at high school Result: Court Dismissed case after Argument Made In Mitigation San Diego County Charge: Spouse arrested for domestic violence after 911 calls and pictures of serious bodily injury Result: District Attorney Dismissed at Trial San Diego County Charge: Military member arrested for assault and battery Result: Court Dismissed after successful argument for Military Diversion San Diego Federal Charge: 19-year-old student charged with Alien Smuggling Result: Case Dismissed after negotiations with US Attorney

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DUI – Due Process

Do You Waive Your Due Process Rights, If You Do An Alcohol Prescreening Test?

Short Answer: No. You have the right to determine which test determines your blood alcohol content, and, 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.

And California courts have held that the denial of a chance to obtain 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.

The process due in such instances is where a person is administered a breath test be advised that he or she has a right to a back-up test of blood or urine, because a breath test does not provide a retestable sample. This is one’s right to evidence.

If the arresting officer arbitrarily and unilaterally, and therefore illegally, deprived the defendant of that right and the court allows the PAS test result to be used for BAC. Then, there was no voluntary and understanding waiver of said right to evidence.

What Should Happen: The officer, by statute, V.C. §23612(i) should advise the driver of the following admonition, which, if given, explains that the PAS test is only a preliminary alcohol screening test to be used for determining probable cause and is not a test for blood alcohol content: “I am requesting that you take a preliminary alcohol screening test to further assist me in determining whether you are under the influence of alcohol. This is not an implied consent test. If arrested, you will be required to give a sample of your blood, breath, or urine for the purpose of determining the actual alcoholic (and/or drug content) of your blood.”

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. If violated, then Due Process is violated. That is a Constitutional “no, no.”

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