Monder Law Group - News
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 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.