San Francisco Bay Area DUI Blog

Current Articles | RSS Feed RSS Feed

NCDD Journal Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

Attorney Advertising Held Unethical (And Subject To State Bar Discipline) Where Competitor’s Name Used As A Keyword

2010 Formal Ethics Opinion 14 (NC April 27, 2012).

Opinion of North Carolina State Bar Ethics Committee rules that it is a violation of the Rules of Professional Conduct for a lawyer to select another lawyer's name as a keyword for use in an Internet search engine company's search-based advertising program.

Inquiry: Attorney A participates in an Internet search engine company's search-based advertising program. The program allows advertisers to select specific words or phrases that should trigger their advertisements. An advertiser does not purchase the exclusive rights to specific words or phrases. Specific words or phrases can be selected by any number of advertisers.

One of the keywords selected by Attorney A for use in the search-based advertising program was the name of Attorney B, a competing lawyer in Attorney A's town with a similar practice. Attorney A's keyword advertisement caused a link to his website to be displayed on the search engine's search results page any time an Internet user searched for the term "Attorney B" using the search engine. Attorney A's advertisement may appear to the side of or above the unpaid search results, in an area designated for "ads" or "sponsored links."

Attorney B never authorized Attorney A's use of his name in connection with Attorney A's keyword advertisement, and the two lawyers have never formed any type of partnership or engaged in joint representation in any case. 

Does Attorney A's selection of a competitor's name as a keyword for use in a search engine company's search-based advertising program violate the Rules of Professional Conduct?

Opinion: Yes. It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). Dishonest conduct includes conduct that shows a lack of fairness or straightforwardness. See In the Matter of Shorter, 570 A.2d 760, 767-68 (DC App. 1990). The intentional purchase of the recognition associated with one lawyer’s name to direct consumers to a competing lawyer's website is neither fair nor straightforward. Therefore, it is a violation of Rule 8.4(c) for a lawyer to select another lawyer’s name to be used in his own keyword advertising. 

San Francisco DUI LawyerHave you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law" 

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

License Suspension Upheld Where Driver’s Refusal Based on Location of Blood Draw

McLinden v. Commonwealth, Dept. of Transportation, Bureau of Driver Licensing

Commonwealth Court of Pennsylvania

Unpublished; 2013 WL 5973940

Driver’s conditional consent to blood testing constituted a refusal where he insisted upon the blood draw being at a location other than a police trailer next to a DUI checkpoint that was staffed with a phlebotomist.

Officer’s Opinion That Defendant’s Ability to Drive Was Diminished by Alcohol Impairment Should Have Been Excluded on Basis It Expressed Ultimate Opinion of Guilt

Commonwealth v. Canty

___ N.E.2d ___, Mass. , 2013 WL 5912050 (Mass.)

No SJC-11315

This case involves the limitation of lay witnesses (including police officers) concerning opinions about the ultimate question of guilt. Though they may testify as to a defendant’s apparent intoxication, they may not express an opinion as to whether the accused was operating under the influence.

 “[A] lay witness in a case charging operation of a motor vehicle while under the influence of alcohol may offer his opinion regarding a defendant's level of sobriety or intoxication but may not opine whether a defendant operated a motor vehicle while under the influence of alcohol or whether the defendant's consumption of alcohol diminished his ability to operate a motor vehicle safely…

“[W]e conclude that the judge erred in admitting Officer Bulman's opinion that the defendant's “ability to drive was diminished” by his consumption of alcohol. We also conclude that the judge did not err in admitting Officer Tarentino's opinion that the defendant was “probably impaired.”

San Francisco DUI LawyerHave you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"  

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

State v. Berg (2013)

District Court Tenth Judicial District

County of Anoka (Docket No. 02-CR-13-4444)

DUI suspects have a constitutional right to refuse consent to chemical testing absent a warrant or sufficient exigent circumstances, and the exercise of that right cannot be criminalized.  See Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 540 (1967).

“If the exercise of a constitutional right is criminalized the rights afforded United States citizens loses all meaning.  The officer, upon learning Defendant was invoking her right to refuse a search had the ability to request a warrant and force Defendant to submit to testing.  The officer chose not to get a warrant.  The state’s right to test Defendant was lost at that point.  Therefore, this Court grants Defendant’s motion and will dismiss County [sic] I of the complaint.”

EDITOR’S NOTE:  This was a win by NCDD member Charles Ramsay at the trial court level.



Admissibility of Declaration Against Penal Interest By Third Party Claiming To Be Driver

People v. Soto, ___ N.Y.S.2d ___, 2013 WL 6418291 (N.Y.A.D. 1 Dept.), 2013 N.Y. Slip Op. 08217

  (Supreme Court, Appellate Division, First Department, New York)

A prosecution witness testified that he observed defendant driving and that he was the only person in the car.  Defendant contended that he was a mere passenger. The defense sought to introduce an out-of-court statement made to a defense investigator by a 19–year–old woman indicating that she, and not defendant, was driving defendant's car at the time it collided with a parked car.  She refused to testify at trial on Fifth Amendment grounds and the prosecution refused to grant her immunity. A separate defense witness testified that he observed a young lady driving the car.

Held:  The statement was a declaration against penal interest and the trial court erred in keeping the statement out.  The Court noted the four-prong test for admissibility of the statement under the “declaration against penal interest” exception:

(1) the declarant must be unavailable to testify by reason of death, absence from the jurisdiction, or refusal to testify on constitutional grounds;

(2) the declarant must be aware at the time of its making that the statement was contrary to his penal interest;

(3) the declarant must have competent knowledge of the underlying facts; and

(4) there must be sufficient competent evidence independent of the declaration to assure its trustworthiness and reliability”

As to the fourth prong, the Court noted that declarations which exculpate a defendant are subject to a more lenient standard, and will be found sufficient if they establish a reasonable possibility that the statement might be true. “Depriving a defendant of the opportunity to offer into evidence another person's admission to the crime with which he or she has been charged, even though that admission may only be offered as a hearsay statement, may deny a defendant his or her fundamental right to present a defense” [cite omitted].

Prolonged Detentions

Heard v. State

Georgia Court of Appeals - A13A0853

Defendant stopped for expired registration tab. Once the basis of the detention was resolved, the officer commenced questioning the driver about whether he was transporting drugs.  Though only about four minutes elapsed between the time of the stop and the ultimate search of defendant’s car, the Court found the detention to be impermissibly prolonged and suppressed the evidence of contraband found in the car.

State v. Peterson

Oregon Court of Appeals

___ P.3d ___, 2013 WL 5935366 (Or.App.)

When a police officer has all of the information necessary to complete a traffic infraction investigation but, instead of ending the encounter, launches an investigation into a matter unrelated to the infraction and for which there is no reasonable suspicion, the officer has unlawfully extended the stop.  (As in the Heard case (above), the detention here was prolonged based on a hunch about drugs.)

San Francisco DUI AttorneyHave you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law" 


DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

Implied Consent Is Not Fourth Amendment Consent 

State v. Butler

232 Ariz. 84, 302 P.3d 609

Independent of the implied consent statute, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth's age and a parent's presence are relevant factors for a trial court to consider in evaluating whether consent was voluntary under the totality of circumstances.

Are Statutes Criminalizing or Enhancing Sentences Based on Chemical Test Refusals Constitutional?

HOOVER v.
State of OHIO (6th Cir. 2013)

No. 13–3330.

Unpublished Per Curiam

2013 WL 6284256

Hoover was arrested for drunk driving and refused to take a breathalyzer test. He was charged with driving under the influence under an Ohio statute which doubles the punishment if a breath test is refused and the suspect has a prior conviction. (Ohio Rev. Code 4511.19(A)(2)).

Hoover moved to dismiss the charge against him, arguing that the statute was unconstitutional because it penalized him for invoking his Fourth Amendment rights. The trial court denied the motion to dismiss and Hoover appealed. 

The Ohio Court of Appeals agreed with Hoover's argument that he should not be subject to increased criminal penalties for refusing to take a breathalyzer test, and it vacated his sentence. State v. Hoover, 878 N.E.2d 1116 (Ohio Ct.App. 2007). The Supreme Court of Ohio, in a four-to-three decision, reversed the decision of the Court of Appeals and reinstated Hoover's sentence. State v. Hoover, 916 N.E.2d 1056 (Ohio 2009). 

The Ohio Supreme Court’s decision was pre-McNeely, and like a number of other jurisdictions, it read Schmerber too broadly and concluded that exigent circumstances for a warrantless chemical test exist anytime an officer has probable cause to believe a suspect has been driving under the influence.

The United States Supreme Court denied certiorari. Hoover v. Ohio, 559 U.S. 1093 (2010).   Hoover then filed a petition for federal habeas corpus relief. A magistrate judge recommended that the petition be denied, and the district court adopted this recommendation over Hoover's objections, but granted Hoover a certificate of appealability.

In order to be entitled to federal habeas corpus relief, Hoover was required to show that the Ohio Supreme Court's decision was contrary to or an unreasonable application of federal law clearly established by the Supreme Court. See Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006).  Unfortunately for Hoover, the Supreme Court has not spoken directly on this issue. As did the dissent in the Ohio Supreme Court opinion, he cited Camara v. Municipal Court, 387 U.S. 523, 540 (1967) for the proposition that he could not constitutionally be convicted for refusing to consent to a warrantless search. That case involved a property owner who was faced with criminal charges for refusing to allow an inspection of his property. The Supreme Court noted that there was no probable cause to believe that the property owner had violated any law, and that there were no exigent circumstances that prevented the government from obtaining a warrant. Id., at 539. In Hoover's case, there was probable cause to believe that he was guilty of driving under the influence, and he had already been arrested on that charge. The Supreme Court has also held that under exigent circumstances, even the more invasive blood test without a warrant to determine intoxication incident to an arrest for drunk driving is not an unreasonable search under the Fourth Amendment. [Citing Missouri v. McNeely, 133 S.Ct. 1552, 1556, and Schmerber v. California, 384 U.S. 757, 771 (1966).  Therefore, Hoover's reliance on Camara is unavailing, as it is distinguishable from his case. The property owner in Camara had the right to insist on a warrant, and Hoover did not. 

Because Hoover has not established that the Ohio Supreme Court's rejection of his claim is contrary to or an unreasonable application of federal law clearly established by the Supreme Court, the denial of his petition for a writ of habeas corpus is affirmed.

EDITOR’S NOTE:  The Sixth Circuit obviously misinterpreted both McNeely and Schmerber when it declared Hoover had no right to insist upon a warrant.  See Concurring opinion below.

STRANCH, Circuit Judge, concurring:
 
The statute at issue in this case is unusual: It criminalizes the refusal to submit to a breathalyzer test. Such laws, which are not common, raise unanswered questions regarding the limits of implied consent statutes and the imposition of criminal penalties for refusing a warrantless search. See Note, Taryn Alexandra Locke, Don't Hold Your Breath: Kansas's Criminal Refusal Law is on a Collision Course with the U.S. Constitution, 52 Washburn L.J. 289 (2013); D. Bernard Zaleha, Alaska's Criminalization of Refusal to Take a Breath Test: Is it a Permissible Warrantless Search Under the Fourth Amendment, 5 Alaska L.Rev. 263 (1988). The Supreme Court has not yet addressed this kind of statute. But as we stated in Slagle, “a state court ... does not act contrary to clearly established law when the precedent of the Supreme Court is ambiguous or nonexistent.” 457 F.3d at 514.

I concur, therefore, only because Hoover has not satisfied AEDPA's strict requirement that his conviction is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d).

San Francisco DUI LawyerHave you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law" 

Superbowl Weekend Brings Constitutionally Suspect DUI Checkpoint Arrests

  
  
  
  
  

 

Read my article on the DUI News Blog (www.duinewsblog.org) about constitutionally suspect DUI Checkpoint operations, many of which are operated right here in California. Call me today, or send me an e-mail, if you desire a consultation about your DUI arrest. 

San Francisco DUI Atttorney

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law" 

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

More On Warrantless Blood Draws---What Constitutes Consent?

In Missouri v. McNeely, which was discussed in our previous post, the United States Supreme Court affirmed its holding in a 1966 case called Schmerber v. California (several California Court of Appeal decisions in the 47-year interim had watered down and misinterpreted Schmerber, declaring that it authorized blood draws without a warrant anytime a person was lawfully arrested on suspicion of driving under the influence).  In fact, Schmerber very clearly indicated that a warrant is required except in limited situations where there is no time to get a warrant.

Now that McNeely has overruled those California cases, warrantless blood draws in DUI cases present a bevy of potential issues for suppression of the evidence in the absence of consent. 

Consent is an exception to the Fourth Amendment’s warrant requirement. California’s implied consent law (Vehicle Code section 23612) purportedly constitutes an exception where the suspect has been lawfully arrested on suspicion of driving under the influence.  It reads, in pertinent part, as follows:

A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.

[If drug impairment is suspected, the testing is limited to blood unless no qualified person is available to draw the blood, in which case a urine sample is required.]

Where a motorist withdraws this implied consent, the police must typically get a warrant before drawing a blood sample.  What happens, though, when the motorist stands mute---he or she does not say anything when the officer asks, “Will you submit to a breath or blood test?” Does it matter if he or she offers no physical resistance as a needle is inserted into his or her arm?  Prosecutors will argue that the lack of verbal or physical objection constitutes consent on the basis that the statutory implied consent has not been withdrawn.  However, those were essentially the circumstances in Lampman v. DMV, 28 Cal.App.3d 922 (2008), where the Court affirmed a DMV “refusal suspension” where the motorist refused to answer the officer, offered no physical resistance, and a blood sample was obtained.  If such conduct constitutes a refusal for purposes of an administrative license suspension, it should be deemed a withdrawal of implied consent necessitating a warrant.

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 28 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law" 
San Francisco DUI Lawyer

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

The U.S. Supreme Court Decision belows underscores why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

MISSOURI V. MCNEELY

 THIS U.S. SUPREME COURT DECISION OVERRULES SEVERAL CALIFORNIA COURT OF APPEAL CASES THAT ERRONEOUSLY HELD POLICE MAY FORCIBLY TAKE A BLOOD SAMPLE FROM A DUI SUSPECT WITHOUT A WARRANT BASED SOLELY ON A LAWFUL ARREST AND MEDICALLY APPROVED MANNER OF DRAWING BLOOD.

WHAT DOES IT MEAN AND HOW IS IT PLAYING OUT?

The Facts in McNeely:  DUI suspect refused both breath and blood testing and was subjected to a forced blood draw at a hospital. The State did not argue that exigent circumstances existed which excused a warrant, and the arresting officer did not identify in his testimony any circumstances suggesting that he faced an emergency or unusual delay in trying to obtain a warrant. The blood-alcohol evidence was ordered suppressed by the trial court based on a violation of the Fourth Amendment.  The Supreme Court of Missouri affirmed.

SOTOMAYOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, in which SCALIA, KENNEDY, GINSBURG, and KAGAN, JJ., joined, and an opinion with respect to Parts II–C and III, in which SCALIA, GINSBURG, and KAGAN, JJ., joined. KENNEDY, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which BREYER and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion.

The McNeely Holding:

Parts I, II–A, II–B, and IV -  “[W]hile the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber [car accident investigation and unconscious DUI suspect in hospital], it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.”  Judgment affirmed.

 “When officers in a drunk driving investigation can reasonably obtain a warrant without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so (citing McDonald v. United States, 335 U.S. 451, 456).” 

“[T]echnological developments that enable officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency.

Part II-C: Rejects Justice Robert’s bright-line rule that an exigency exists if there is insufficient opportunity to obtain a warrant between the time of arrest and the time it takes to subject the motorist to a blood draw. (Kennedy did not join this portion of the opinion, expressing the view that states could possibly formulate a bright line rule based on the totality of circumstances).

Part III:  “States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws [citing license suspensions and admissibility of chemical test refusal in criminal prosecutions].” (Kennedy did not join this portion of the opinion, but expressed no disagreement with this statement in his separate concurring opinion)

ROBERTS, J., joined by BREYER and ALITO, JJ., (concurring in part and dissenting in part):

Officers need guidance. Agrees with majority that dissipation of alcohol in the human body does not create a per se exigency justifying warrantless blood draws in all DUI cases.  However, if a warrant cannot reasonably be obtained within the time it takes the officer to have the blood drawn, than there is an exigency. 

Footnote 2: A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police [so they could argue there was no time to get a warrant], but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious Fourth Amendment concerns.

THOMAS, J., dissenting:  “Because the body’s natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance.  As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.”

     The McNeely decision presents a number of issues that California trial courts are now forced to address:

I.  Totality of the Circumstances

Look for the California District Attorney’s Association and law enforcement agencies to seize upon the concurring opinion of Kennedy, the concurring/dissenting opinion of Roberts (joined by Breyer, and Alito), and the dissenting opinion of Thomas, to push California courts to establish bright line rules for permitting warrantless blood draws. Some reasonably predictable ones will be:

  • Motor vehicle accident
  • Passenger(s) needing assistance
  • Necessity for medical attention
  • Time of day and availability of magistrate
  • Number of officers in police department

In the interim, trial courts are considering these and other circumstances.

II.  Good Faith Exception

Where a warrantless blood draw without lawful consent is found to have occurred, the exclusion of the blood-alcohol analysis will not necessarily be excluded if a “good faith” exception to the exclusionary rule is established and found applicable. California’s trial courts and Superior Court Appellate Departments appear to be almost uniformly recognizing a “good faith” exception where the warrantless blood draw occurred prior to the McNeely decision.  They shouldn’t be though, because the case they are relying upon is Davis v. United States, 131 S. Ct. 2419 (2011) (“…searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."), and the Davis finding of “objective good faith” was limited to binding appellate precedent from federal appellate courts and state courts of last resort.  McNeely did not announce a new rule (it reaffirmed its 1966 decision in Schmerber) and the California Supreme Court (the state court of last resort in California) never held that a warrant was excused based solely upon probable cause to arrest and a medically approved blood draw.

III. Retroactivity

Some trial courts are reportedly ruling that the McNeely holding is not retroactive---that it only applies to blood draws conducted after issuance of the decision.  This too is not true, as the decision did not announce a new rule, and even if it did it still applies to all pending cases.

IV.  Threat of Force Followed By Passive Submission

If the police threaten a DUI suspect with physical force and the suspect then submits to the blood draw without physical force being used, the consent is not lawful consent and the blood-alcohol or blood-drug evidence is still subject to suppression.  See Bumper v. North Carolina.

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 28 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"    

San Francisco DUI Lawyer

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the State v. Newman case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

State v. Newman, ___P.3d___ (2013 WL 2370589 (Or.) – Docket No. S060182

An element of proof for DUI conviction in Oregon is that the accused engaged in a volitional act that led to the driving. The trial court barred the defense from having an expert witness testify about “sleep driving” as part of a defense that defendant’s act of driving was not volitional.

“[T]he jury could have considered evidence that defendant engaged in the volitional act of drinking, if there were evidence that drinking led to the driving. However, the jury also could have concluded that defendant's “sleep driving” would have occurred without regard to whether he consumed alcohol and, thus, that defendant did not engage in a voluntary act which led to the act of driving.

“We note that ORS 161.095 provides that criminal liability may be imposed when conduct includes either a voluntary act `or the omission to perform an act which the person is capable of performing.’ Here, defendant's proffered testimony was that he had not, to his knowledge, engaged in “sleep driving” prior to this incident. On remand, if the state produces evidence to the contrary, a jury could conclude that defendant's failure to take adequate precautions was an omission to perform an act defendant is capable of performing under ORS 161.095(1) and, if supported by the evidence, that that failure to act led to the driving.”

Defendant was entitled to adduce evidence that his act of driving was not volitional, and his expert witness should have been allowed to testify.  It did note that the State is “entitled to present evidence that defendant's drinking or other volitional act resulted in defendant driving his vehicle that evening,” or to “show a voluntary act with evidence that defendant had engaged in “sleep driving” prior to this incident and failed to take adequate precautions to remove access to his car keys.” 

California recognizes the “sleep driving” defense where the driver has an unanticipated reaction to medication taken as prescribed. This frequently happens with the use of Ambien.

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 28 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"

San Francisco DUI Lawyer

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the U.S. v. Tavera case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

Defendant was a passenger in a truck transporting concealed methamphetamine.  He denied having any knowledge of it but was convicted nevertheless.  His conviction was vacated when it was discovered after trial that the co-defendant driver had told the prosecutor during plea negotiations that Defendant had no knowledge of the drug conspiracy.

Citing Strickler v. Greene, 527 U.S. 263 (1999), the Court first determined there is a true Brady violation (Brady v. Maryland, 373 U.S. 83 (1963)) requiring a new trial where (a) the subject evidence is favorable to the accused, either because it is exculpatory or it is impeaching; (b) the evidence was either willfully or inadvertently suppressed by the State; and (c) prejudice ensued from the suppression.

The Court then cited Banks v. Dretke, 540 U.S. 668 (2004) in rejecting the government’s contention that Defendant had a “due diligence”obligation to discover the exculpatory statement by asking the co-defendant if he had made any statements to law enforcement.  Banks held that “[a] rule…declaring “prosecutor may hide, defendant must seek,” is not tenable in a system constitutionally bound to accord defendants due process.”

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 28 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"

San Francisco DUI Lawyer

DUI Case Highlights from Paul Burglin San Francisco DUI Attorney

  
  
  
  
  

Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the People v. Gaytan case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

People v. Gaytan (IL - Court of Appeal, Dist. 4) May 13, 2013 – Docket No. 4–12–0217)

The IL statute at issue provides that the “registration plate shall at all times be free from any materials that would obstruct the visibility of the plate, including, but not limited to, glass covers and plastic covers.”

The last phrase of the statute led the Court to conclude that a trailer ball hitch---since it is not an item physically attached to the license plate---is not the type of obstruction that constitutes a violation of the statute (employing the doctrine ejusdem generic).

Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? Paul Burglin is a Board Certified in DUI Defense San Francisco Bay area attorney who for over 28 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. He is also the co-author of "California Drunk Driving Law"

San Francisco DUI Attorney

All Posts