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San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights

  
  
  
  
  

Loss of Pilot and Medical Certificates By FAA For Failure To Disclose Prior DUI Arrest

Taylor v. Huerta, ___ F.3d ___, (D.C. Cir. 2013) – Docket No. 12-1140

WL 3762896

Taylor submitted an application for a medical certificate using the FAA's online system, MedXPress. One of the questions asked him about any prior arrests and he answered “no” despite a previous DUI arrest in California (which, ironically, did not even result in a conviction).  The FAA discovered the prior arrest on a background check and opened an investigation as to why it was not disclosed. He said he did not read the question carefully, was unaware that prior arrests were now being asked instead of just prior convictions, and that he had just hit a button that put a “no” answer to a number of questions all at once.  The answers were submitted under penalty of perjury.

The Court rejected the contention that the omission was inadvertent, holding that “[a] defense of deliberate inattention fails where the applicant is attesting to events about which he has actual knowledge.” [cite].  It then slapped him with this rebuke:

“Despite Taylor's melodramatic description of the button's significance, the reality is that it does not limit in any way the ability of applicants to read the questions carefully. The button does not obscure or hide the questions. To the contrary, the questions appear on the same screen as the button, and they can be read by anyone who can see the button. [cite]. The FAA's decision to provide this modest convenience, rather than requiring MedXPress users to click “yes” or “no” for each question individually, does not “entrap” applicants. Nor does MedXPress “downgrade” the questions' importance. It expressly requires the applicant to certify that “all ... answers provided ... on this application form are complete and true to the best of [his or her] knowledge.” [cite] And it prominently highlights the possibility that false answers may expose the applicant to substantial criminal liability. [cite].”

EDITOR’S NOTE:  This case demonstrates once again that the failure to truthfully answer questions on a professional license application is treated more harshly by licensing boards than disclosure of the underlying offense.

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"

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San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights

  
  
  
  
  

People v. Vangelder (2013)

___ Cal.4th ___ (Calif. Supreme Court – Docket No. S195423)

Expert testimony that properly working and approved breath-alcohol instruments do not sample breath samples as they are designed to, and thus do not produce reliable results, is irrelevant and inadmissible on the per se charge. The exclusion extends to physiological variability such as body and breath temperature, hematocrit level, gender, and breathing patterns.

The Court characterized expert witness Michael Hlastala’s proffered testimony as a “regulation-based argument” that improperly seeks to trump legislative determinations concerning alcohol limits in deep lung breath. It specifically declined to address whether the limitation applies to the impairment count (it would appear not to).

EDITOR’S NOTE:  The holding does not seem to bar challenges based on mouth alcohol or GERD since these are contamination arguments that have nothing to do with partition ratio variability.

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"

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San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights

  
  
  
  
  

Partition Ratio Evidence Admissible To Defend Impairment Charge Even If Prosecution Only Introduces Breath-Alcohol Test Results To Prove The Per Se Offense

State v. Cooperman (2013)

Arizona Supreme Court – Docket No. CV–12–0319–PR

The Arizona Supreme Court holds that partition ratio variability evidence (either in the general population in the individual specifically) is relevant and admissible in prosecutions for driving while impaired even if the state elects to introduce breath test results only to prove the .08 or higher per se count. The decision cited and followed Supreme Court decisions from California and Vermont on this issue.

 In affirming, the Arizona Supreme Court did not address an important aspect of the Court of Appeal’s decision below in State v. Cooperman (Ariz.Ct.App. 2012) 282 P.3d 446. The lower Court additionally held that physiological variability (e.g., breathing patterns, body and breath temperatures, hematocrit levels, gender, etc.) in the general population may be admitted to cast doubt on the reliability of breath-alcohol samples in defense against both the impairment and per se charges. The California Supreme Court noted this holding in Vangelder (see below) but declined to follow it on the per se count.

EDITOR’S NOTE:  NCDD member Steven Barnard contributed an amicus brief on this winning case.

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 areaattorney 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"
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San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights

  
  
  
  
  

Blood Draws At Jail Facility By Non-Physician/Non-Nurse Found Reasonable

People v. Cuevas

___Cal.App.4th ___ (2013) (California First District Court of Appeal, Div. 1 – Docket No. A138062)

2013 WL 3963601

The Court reviewed seven consolidated cases involving DUI arrests where the subjects opted for blood testing under California’s implied consent law and six were done at a jail facility. The blood draws were each performed by a trained phlebotomist or blood technician. Police officers testified to observing the blood draw site being cleaned and a needle being used from a sealed package. No evidence of pain or discomfort was presented, and in five of the cases there was testimony that the area was bandaged following the blood draw.

The Court rejected defense contentions that the blood draws failed to meet the constitutional standard of reasonableness because police officers arguably lacked the medical training necessary to testify whether the blood draws were performed in a medically approved manner and were done in a jail facility rather than a hospital.

The Court did note, however, that mere consent to a blood draw does not make the manner of drawing blood reasonable per se. It is but one factor to be considered in conjunction with the totality of circumstances.

EDITOR’S NOTE: The California Supreme Court denied petitions for review and for de-publication.

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 areaattorney 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"
San Francisco DUI Attorney

San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights

  
  
  
  
  

Symptoms of Intoxication and Manner of Driving Held Valid And Relevant Basis for Rejecting Rising Blood-Alcohol Defense in Administrative License Suspension Action

Coffey v. Shiomoto (Director, Calif. Dept. of Motor Vehicles)

___ Cal.Rptr.3d ___, 2013 WL 4196651 (Cal.App. 4 Dist.)

Non-chemical test circumstantial evidence was properly considered an administrative hearing officer to reject a defense expert’s opinion that driver was under .08 percent at the time of driving notwithstanding his post-driving chemical test results of .08 and .09 (Breath), followed by blood draw that later showed results of .095 and .096 percent.

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"
Board Certified San Francisco DUI Lawyer

San Francisco DUI Attorney Paul Burglin NCDD Journal Case Highlights

  
  
  
  
  

Always Poll The Jury Following A Guilty Verdict!

People v. Jones (2013) No. 1-11-3586 (Unpublished)

Appellate Court of Illinois,

First District, Second Division.

It often seems like a waste of time and gratuitous torment, but this case demonstrates that polling a jury after a guilty verdict occasionally bears fruit. 

A guilty verdict was announced by the foreperson following deliberations. The court told the jurors it was “going to ask each and every one of you whether or not that verdict was your verdict and if it's still your verdict.” After polling four jurors, the following exchange occurred:

“THE COURT: Nicholas Mack, was that your verdict and is this now your verdict?

JUROR MACK: No, but yes and no. 

THE COURT: Well, your answer can't be yes and no. Is that your verdict now?

JUROR MACK: Yes. 

THE COURT: Okay. And was that your verdict when you signed the verdict paper?

JUROR MACK: No. 

THE COURT: Okay, when you signed the verdict, that was not your verdict, a finding of guilty?

JUROR MACK: According—excuse me, according to the law, yes. But, it was other things that I felt that made him not guilty.

THE COURT: Okay. So let me ask you that question again: Was that your verdict and is this now your verdict that he is guilty?

JUROR MACK: Yes.”

Defendant appealed the guilty verdict on the ground that the trial judge erred in the way he questioned the juror and that the juror’s equivocal responses created doubt about the validity of the verdict.

The appellate court made the following points based on prior case law:

  • The purpose of polling a jury is to determine that the verdict accurately reflects each juror's vote and that the vote was not the result of coercion.
  • While the trial court should not turn the polling process into an opportunity for further deliberations, the court also must not hinder a juror's expression of dissent.
  • If a juror indicates some hesitancy or ambivalence in his or her answer, then the trial judge must determine the juror's present intent by affording the juror the opportunity to make an unambiguous reply as to his or her present state of mind.
  • If the court determines a juror dissents from the verdict, the proper remedy is for the trial court, on its own motion if necessary, to either direct the jury to retire for further deliberations or to discharge the jury. 
  • The trial court's determination as to the voluntariness of a juror's assent to a verdict will not be set aside unless the trial court's conclusion is clearly unreasonable. 

The Court affirmed the conviction, determining that the juror's response established his agreement that defendant was guilty under the law, and that the jury verdict reflected his intentions.  It further determined that the complete colloquy indicated the juror was given the opportunity to dissent and ultimately stated that the guilty verdict reflected his vote.  Finally, it found the trial court’s determination that the juror voluntarily assented to the verdict was reasonable.

EDITOR’S NOTE:  One cannot determine the tone of the judge’s questioning from the cold transcript (well, maybe you can!), but that is the key as to whether this juror was bullied by the trial court into capitulating. The defense made a post-trial motion for a new trial, contending that the verdict was not unanimous. However, it does not appear that any objection was made to the judge’s manner of questioning as it occurred.  One tactic the defense might have considered is to request an immediate recess once the juror responded, “No, but yes and no.” What would you have done?  Have you ever even prepared for this type of response from a juror being polled? Will you ever pass on the right to poll a jury after reading this case?

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"
 San Francisco DUI Lawyer


San Francisco DUI Attorney on constitutionality of police stops

  
  
  
  
  

 

Whether the police lawfully stopped you by reason of a reported complaint to the police about your manner of driving depends on what the United States Supreme Court refers to as “the totality of circumstances.” Last month, the high court reviewed the trial court record of a vehicle enforcement stop in Berkeley, California, in a case called Navarette v. California

     In this particular case, the enforcement stop was deemed constitutional based on the following facts:

•   Use of 911 system (suggestive that caller was not concerned about the report being traced back to him);

•   Detailed description of driving which was consistent with the driving of an impaired motorist (i.e., it was more than just a conclusory statement that the suspect was a drunk driver---it specifically described a reckless manner of driving);

•   Detailed description of car (the vehicle style and license plate number were provided)

•   Description of location and direction of the vehicle was given;

•   Contemporaneous report (i.e., it just happened)

     Because the Navarette Court in this 5-4 decision agreed that these facts amounted to "a close call" in terms of upholding the warrantless stop, any set of facts that amount to something less than the aforementioned circumstances is subject to the suppression of evidence with a California Penal Code section 1538.5 motion.

     Thus, if you were stopped for no reason other than somebody having reported you or your car to the police as a drunk driver, it may be possible with the assistance of knowledgeable defense counsel to have the evidence against you (e.g., field sobriety tests and chemical test evidence) thrown out of court and the charges against you dismissed.  This remedy is mandated by the federal exclusionary rule to deter police from violating the Fourth Amendment.

     If you were you stopped by the police we can review the report and any audio and video tape in the case and determine if the stop was constitutional.  I am a Board Certified DUI defense lawyer and ready to defend you---call me today.    

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NCDD Journal Case Highlights from San Francisco DUI Attorney Paul Burglin

  
  
  
  
  

Participation in Florida’s Discovery Scheme Mandates Defense Disclosure of Independent Blood Analysis Even If Expert Not On Witness List

Kidder v. State, 117 So.3d 1166 (2013) (No. 2D12-3535)

Florida District Court of Appeal (2nd District)

In Florida, a defendant’s election to participate in statutory discovery (which includes depositions) triggers a reciprocal requirement of disclosure. This includes the blood-alcohol report of a defense expert even if the defense does not intend to call him or her as witness. If the defense does not elect to participate, the only discovery that must be disclosed by the prosecution is Brady material (i.e., exculpatory discovery). In that circumstance, the prosecution does not have to send a blood split to a defense expert for independent analysis. Yet the Florida Court, while recognizing that this presents a Hobson’s Choice to the defense (have the blood sample retested, but disclose any incriminating result to the prosecution), finds no Fifth or Sixth Amendment problem with the mandatory disclosure and rejects the contention that it’s work product.

NOTE:  Federal Rule of Criminal Procedure 16(b)(1)(B), and most state discovery statutes, only require disclosure of such a report if the defense intends to call the expert as a witness. 

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"
San Francisco DUI Lawyer

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"  

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