Posted by Paul Burglin on Sun, Feb 12, 2012
State of Wisconsin v. Devries, Slip Copy, 2011 WL 1844721 (Wis.App.)
Defendant was found guilty of drunk driving and sentenced as a 5th timer based on the inclusion of Arizona and California drunk-driving matters as prior “convictions” under the Wisconsin statutes. WIS. STAT. § 340.01(9r) defines a “conviction” as including: a “fail[ure] to comply with the law in a court of original jurisdiction”; and a “violation of a condition of release without the deposit of property.”
EDITOR’S NOTE: Under Apprendi, all matters that enhance a penalty (except prior convictions) must be proved during trial beyond a reasonable doubt. Plus, the defendant normally has the right of confrontation. How SCOTUS would treat this type of prior “conviction” remains to be seen.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Fri, Feb 03, 2012
State of Georgia v. Davis, --- S.E.2d ----, 2011 WL 1843166 (Ga.App.)
The State's breath test results were suppressed on the basis of a failure to reasonably accommodate the defendant's request for an independent test.
In rejecting the State's argument that Defendant withdrew her request for an independent blood test after the officer advised her that she would have to pay for the test but failed to allow her the opportunity to make other payment arrangements, the Court noted:
“[t]he police cannot escape the duty to reasonably accommodate individuals who have invoked the right to an additional test simply because such individuals fail to insist on alternatives, especially when they have not been instructed of their responsibility to make such arrangements and that failure to do so results in a waiver. It must be remembered that such individuals are in police custody and do not have free reign to dictate their own actions. Because of the very nature of the arrest, their faculties are often impaired, and their actions are largely dictated by the instructions given to them by the police.”
Have you been charged with a
DUI San Francisco,
DUI Marin,
DUI Sonoma or
DUI Napa? My name is
Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of
"California Drunk Driving Law"
Posted by Paul Burglin on Fri, Jan 20, 2012
People v. Varela, --- Cal.Rptr.3d ----, 2011 WL 1126036 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 3771
CVC 415 defines a “ ‘motor vehicle’ [a]s a vehicle that is self-propelled.”
CVC 473 defines a “ ‘pocket bike’ [a]s a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use.”
“A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”
A pocket bike comes squarely within the definition of motor vehicle. To hold otherwise would require that we ignore the plain meaning of sections 415 and 670.
Varela argues that legislative history refers to a pocket bike as a “device” and not a vehicle. (Citing Sen. Transportation & Housing Com., Analysis of Assem. Bill No. 1051 (June 7, 2005); Sen. Rules Com., Analysis of Assem. Bill No. 1051 (June 30, 2005).) but there is nothing inconsistent about referring to a motor vehicle as a device.
Because a pocket bike falls squarely within the statutory definition of a motor vehicle, it is a motor vehicle as a matter of law."
State Of Minnesota v. Brown, --- N.W.2d ----, 2011 WL 2302319 (Minn.App.)
The Minnesota appellate court determined that a wheelchair used to assist a physically disabled person is simply a substitute device for walking, and as such does not constitute a vehicle, despite the statutory definition to the contrary:
"It is plain that for purposes of traffic regulations contained in Chapter 169, Brown's scooter is a wheelchair and is not a motor vehicle, and Brown, who uses the scooter as a substitute for walking, is, while operating his scooter, a pedestrian. See Boschee v. Duevel, 530 N.W.2d 834, 839 (Minn.App.1995)
(“[T]he mere circumstance, that [a person] ... propels himself or herself along by means of a chair, or by some other mechanical device, does not clothe him or her, in a broad and general
sense, with any other character than that of a pedestrian.”).
Have you been charged with a
DUI San Francisco,
DUI Marin, or
DUI Napa? My name is
Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of
"California Drunk Driving Law"
Posted by Paul Burglin on Thu, Jan 12, 2012
Open Container – No Chemical Test Required To Establish Alcohol
Derosiers v. District of Colombia, --- A.3d ----, 2011 WL 1894854 (D.C.)
Circumstantial evidence held sufficient to support a conviction for possession of an open container of alcohol in a vehicle, even in the absence of a chemical test of the liquid in glass jar that allegedly contained alcohol. Police officer observed and smelled liquid and recognized, based on his experience, distinctive smell of vodka emanating from clear liquid inside glass jar found next to defendant, smell of alcohol emanated from defendant and vehicle containing jar, and defendant, who was asleep in front seat of parked vehicle, appeared to be intoxicated at time jar was found next to her.
Have you been charged with a
DUI San Francisco,
DUI Marin, or
DUI Napa? My name is
Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of
"California Drunk Driving Law"
Posted by Paul Burglin on Tue, Jan 03, 2012
Police Officer’s Opinion Of Guilt
State v McLean 205 N.J. 438 (N.J. 2011)
The NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute.
"The Court has established the boundary line that separates factual testimony by police officers from permissible expert opinion testimony. On one side of that line is fact testimony, through which an officer is permitted to set forth what he or she perceived through one or more of the senses. On the other side, the Court has permitted experts with appropriate qualifications, to explain the implications of observed behaviors that would otherwise fall outside the understanding of ordinary people on the jury. In this appeal, the State suggests, and the appellate panel agreed, that there is a category of testimony that lies between those two spheres, governed by the lay opinion rule. The Court does not agree. To permit the lay opinion rule to operate in that fashion would be to authorize every arresting officer to opine on guilt in every case. The testimony of the police detective – because it was elicited by a question that referred to the officer’s training, education and experience – in actuality called for an impermissible expert opinion. "
EDITOR’S NOTE: This issue is a hot topic in DWI law, since the New Jersey case of State v Bealor allowed officers to testify upon their training and experience as to marijuana intoxication.
Have you been charged with a
DUI San Francisco,
DUI Marin, or
DUI Napa? My name is
Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of
"California Drunk Driving Law"
Posted by Paul Burglin on Mon, Dec 19, 2011
Destroyed Or Lost Video Tape
People of Illinois v. Aronson, --- N.E.2d ----, 2011 WL 941306 (Ill.App. 2 Dist.)
A video tape was made on the very issue disputed by the parties (i.e., whether reasonable grounds existed for the officer to believe defendant was driving while intoxicated). Although the officer’s testimony was deemed credible and no finding was made of intentional or willful destruction of the tape, the trial court’s decision to rescind his license suspension was affirmed on the basis that the lost tape, coupled with the defendant’s testimony, outweighed the evidence in the State’s favor. 
Have you been charged with a
DUI San Francisco,
DUI Marin, or
DUI Napa? My name is
Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of
"California Drunk Driving Law"
Posted by Paul Burglin on Fri, Dec 09, 2011
State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.)
Court rejected a licensee's contention that the State must 'prove-up' the admissibility, accuracy, and reliability of the breath test equipment before finding a “refusal” to submit to it.
The Court noted that a similar contention concerning the qualifications of a breath test operator was previously rejected, citing In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981).
Chemical Test Refusals – Foundational Challenges
Editor’s Comment: What if the driver could prove that the test that was requested by the police was in fact inadmissible? For example, what if a driver was asked to blow into an indisputably unapproved device? Would the outcome be different?
State of Minnesota v. Hester--- N.W.2d ----, 2011 WL 1563683 (Minn.)
A person can commit a criminal test refusal in violation of Minn.Stat. § 169A.20, subd. 2 (2010), if he refuses a request to take a chemical test of the person's blood, breath, or urine made by a “peace officer,” as defined in Minn.Stat. § 169A.03, subd. 18 (2010). The Minnesota Supreme Court held that because the Lower Sioux did not comply with Minn.Stat. § 626.91, subd. 2(a)(2), by failing to carry the required liability insurance limits at the time of appellant's arrest, the Lower Sioux police officer did not have the authority to request that appellant take a chemical test.
Have you been charged with a
DUI San Francisco,
DUI Marin,
or
DUI Napa? My name is
Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of
"California Drunk Driving Law"
Posted by Paul Burglin on Fri, Jun 24, 2011
U.S. Supreme Court Holds That Chemical Test Result In DUI Case Is Inadmissible At Trial Unless Lab Technician Who Performed Analysis Is Subject To Cross-Examination By Defense In Court
Decision Trumps Prior California Decisions
Declaring that “[t]he Sixth Amendment’s Confrontation Clause confers upon the accused ‘[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him,’” the United States Supreme Court reversed a drunk driving conviction where the accused was denied the opportunity to cross-examine the actual lab analyst who completed, signed and certified a forensic laboratory report concerning his purported blood-alcohol level. Bullcoming v. New Mexico - Case No. 09-10876.
The National College for DUI Defense (www.ncdd.com) filed a friend-of-the-court brief in the case.
Like several California appellate courts, the New Mexico Supreme Court had erroneously found it constitutional for the prosecution to produce at trial a different forensic analyst familiar with lab procedures but who had no involvement with the analysis or reporting of defendant’s blood sample.
The Bullcoming Court held that the Sixth Amendment’s Confrontation Clause “does not tolerate dispensing with confrontation simply because a court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination.”
In an era that has seen constitutional rights eviscerated by our Courts when it comes to drunk driving investigations and prosecutions, this decision is a refreshing turn of events and should help protect a core constitutional right of the accused to confront and cross-examine the witnesses against him (or her).
Supreme Court decision: www.supremecourt.gov/opinions/10pdf/09-10876.pdf
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of "California Drunk Driving Law"
Posted by Paul Burglin on Tue, Jun 14, 2011
Bay Area / San Francisco DUI lawyer Paul Burglin filed the following appellate brief in the First District Court of Appeal today (July 14, 2011), urging the Court of Appeal to affirm a ruling that will give multiple drunk driver offenders the ability to obtain an Ignition Interlock Device (IID) restricted license after just 90 days of suspension for a second offender, and six months for a third offender. 
Read Brief Here
Posted by Paul Burglin on Wed, Apr 20, 2011
Raj Rajaratnam Takes The Fifth, And For Good Reason
Raj Rajaratnam took the Fifth and declined to testify in his own defense against charges of insider trading. Facing decades in prison if found guilty, you might think the guy would take a shot at trying to personally tell his side of the story.
Barry Bonds did the same thing---remaining silent in his trial on perjury and obstruction of justice charges.
There are very good reasons for why both of these men exercised the constitutional right to remain silent, and not just because they have the right. As a San Francisco Drunk Driving / DUI Lawyer when I take drunk driving cases to trial I rarely have my client testify. Some of the reasons are these:
- Defendants are not normally professional witnesses. Unlike police officers and experts who have testified in court countless times, they have generally never experienced the rigor of cross-examination in a trial setting. They are not comfortable looking at the jurors when they testify, whereas professional witnesses will look and talk to them in a conversational tone.
- Defendants can accidentally say something that hurts their case. Suppose the defendant gets on the stand. Anxious to prove her innocence, she blurts out in the heat of cross-examination, “I’ve never been good with those kind of balancing tests.” The prosecutor then brings to light the fact that she has been previously asked to perform such tests on the side of the road, or that she regularly does yoga and was a high school gymnast.
- Defendants may limit their available defenses by testifying. Suppose the evidence in a DUI trial is unclear about whether the defendant actually drove, but he would like to testify to establish what he drank and when. By testifying, he will not only be asked questions about what he drank and when, but he will also be asked how he got to where he was found. By testifying, a defendant may foreclose certain defenses that rely upon an absence of evidence.
- A weak or borderline case can be lost when a testifying defendant fails to demonstrate his innocence. How does a DUI defendant prove he was not too impaired from alcohol to safely operate a motor vehicle? How does he prove that his blood alcohol level was below .08 percent at the time of driving? He cannot prove these things by testifying, but by taking the witness stand he creates an expectation with a jury that he should persuade them of these things or be found guilty.
Similarly, Raj Rajaratnam and Barry Bonds could not prove their innocence by testifying, and both men would likely have been crushed if they had taken the witness stand. Bonds avoided a conviction on three of four counts. Rajaratnam is unlikely to fair as well, but not because he chose to remain silent at his trial.
Have you been charged with a DUI San Francisco, DUI Marin, DUI Sonoma or DUI Napa? My name is Paul Burglin and I am a San Francisco Bay area drunk driving attorney who for over 25 years has specialized in drunk driving defense in San Francisco, Marin, Sonoma, Napa and surrounding communities. I am also the co-author of "California Drunk Driving Law"