Posted on May 11, 2012 in DUI

Following is an article I wrote recently for a guest op-ed column in the Marin Independent Journal. http://www.marinij.com/opinion/ci_20552333/marin-voice-helping-people-avoid-drunk-driving?source=rss

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Marin Voice: Helping people avoid drunk driving

ALLOW ME to share my perspective on how to reduce recidivist drunk driving. It's based on 27 years of representing individuals criminally charged with this offense, and 20-plus years of personal recovery.

It begins with criminal defense attorneys. We have a meaningful opportunity to address substance abuse with clients who have hit a bottom — been arrested, incarcerated and utterly humiliated.

We can provide guidance and direction when they are most receptive to hearing it, and may even condition our representation on their getting treatment. With prosecutors and judges working with us, treatment in lieu of jail may be offered as a powerful incentive for their getting help.

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 Posted on May 01, 2012 in DUI

San Francisco DUI Lawyer Paul Burglin offers this case example:
Expert Testimony Concerning Physiological Variability Affecting Breath Testing Improperly Excluded
People v. Vangelder (2011) ___Cal.App.4 ^th ___ (Fourth Dist. COA – Docket No. D059012 (Note: Petition For Review has been filed and the decision is not yet final)

Defendant appealed the trial court's exclusion of physiologist Michael Hlastala's scientific criticisms concerning the reliability of the data produced by breath test machines which assume the breath samples measure only alveolar (deep lung breath) air. Defendant's offer of proof was that the assumption is not always valid due to a series of physiological factors (e.g., individual breathing patterns, body temperature, blood hematocrit, and breath temperature) that may affect the transmission of alcohol in gas form, from the bloodstream to the lower and upper portions of the lungs, to the trachea and mouth and back again, thereby making such breath measurements unreliable, and undermining, in turn, the application of the standardized partition ratio calculation for converting breath levels to blood-alcohol levels.

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 Posted on April 20, 2012 in DUI

State of Texas v. Christensen , Not Reported in S.W.3d, 2011 WL 2176656 (Tex.App.-Dallas)

San Francisco DUI Lawyer Paul Burglin offers this case example: One may be charged in Colorado with DWAI (driving while ability impaired) or DUI. While the former is a less serious offense requiring a lesser showing of impairment, the element of impairment is defined much the same as what is required in Texas for a DUI conviction. Hence, a DWAI conviction in Colorado is considered a prior DUI in Texas.

Editor’s Note: The key to assessing whether Colorado’s DWAI may be properly considered a prior DUI/DWI in another state, is to compare the elements of proof required for a Colorado DWAI conviction with what is required for a DUI/DWI conviction in the other state. California, for example, has found it insufficient for use as a prior in the criminal court but acceptable for use in administrative suspension actions by the Dept. of Motor Vehicles. See McDonald v. Dept. of Motor Vehicles (2000) 77 Cal.App.4 ^th 677.

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 Posted on April 11, 2012 in DUI

Out-of State Alcohol-Related Reckless Driving Conviction Considered A “Prior" OWI (DUI) In Wisconsin

State of Wisconsin v. Malsbury , Slip Copy, 2011 WL 2201190 (Wis.App.)

Defendant appealed a determination that he was a second offender, based upon his prior conviction in another state (Washington) where the original charged was amended/reduced from DUI to reckless driving.

The Court was guided by the fact that Washington State treats the offense as a prior as well.

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 Posted on April 03, 2012 in DUI

Day v. Judge Bruce Haskell , - N.W.2d - -, 2011 WL 2505052 (N.D.), 2011 ND 125

After jury empaneled and sworn, Defendant, bailiff, and jurors engaged in conversation about pheasants while judge and lawyers were in chambers. Court quickly ruled that any such conversation automatically required mistrial, but the North Dakota Supreme Court held that a mistrial was not manifestly necessary and that a retrial was constitutionally barred by the Double Jeopardy clause.

A mistrial is not automatically required when the jury is exposed to improper communication; rather, the court must consider the circumstances of each case and determine if there is a manifest necessity for a mistrial. See United States v. Melius , 123 F.3d 1134, 1138–39 (8th Cir.1997) (the trial court's decision to grant a mistrial when there is a claim of possible juror bias is entitled to deference but the court's decision is not beyond review and the court must act responsibly and deliberately considering the defendant's interests). The trial court's decision to terminate a criminal proceeding after jeopardy has attached should not be taken lightly. Linghor , 2004 ND 224, ¶ 22, 690 N.W.2d 201. In this case, the trial court did not consider any alternatives and the decision was made quickly and without sufficient reflection. The trial court did not engage in the “scrupulous exercise of judicial discretion" required before making its decision.

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 Posted on March 23, 2012 in DUI

The “community caretaking exception," justifies an otherwise unconstitutional warrantless search of an automobile where the search is conducted by law enforcement in an attempt to protect the general public from harm, as opposed to a search conducted during the course of a criminal investigation.

Paul Burglin, a DUI Attorney in the San Francisco Bay Area presents this case as an example:

Alford v. State of Texas , - S.W.3d - -, 2011 WL 3505698 (Tex.App.-Dallas)

Officers on bicycles observed a vehicle pull up and stop at a dead end street near an open Jack in the Box restaurant. The passenger door opened and the passenger “kind of turned sideways" as he said something to the driver. They were observed five to seven minutes and were allegedly talking very loudly, but the police could not discern what they were saying.

As the officers approached to “see what was going on," the passenger changed places with the driver. The defendant attempted to drive away but the officer said he wanted to talk to her for a second and asked if she would “mind putting it in park." Some brief conversation ensued before the officer observed a strong odor of alcohol and ultimately arrested the driver.

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 Posted on February 28, 2012 in DUI

State of New Jersey v. Brackin , - A.3d - -, 2011 WL 1661381 (N.J.Super.A.D.)

Defendant was pulled over after he was stopped at a green light for 10 seconds and then pulled away without incident.

The Court held that the pause at the green light “was not of sufficient length to have raised community caretaking concerns, particularly in circumstances in which defendant's driving after commencing to proceed through the light was unexceptionable. Officer Tobin could not have had a reasonable belief that a traffic law had been violated…because as he testified, no cars followed defendant's, and thus there was indisputably no traffic to obstruct. Thus, we adhere to our conclusion that a reasonable, articulable suspicion that a motor vehicle violation had been committed was not established."

EDITORS NOTE: There are several state cases on both sides of the fence on this issue. For example, in Illinois it has been held that a delay of 3-5 seconds at a green light, while the officer is waiting behind the vehicle, is enough to stop the vehicle.

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 Posted on February 12, 2012 in DUI

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.

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 Posted on February 03, 2012 in DUI

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."

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 Posted on January 20, 2012 in DUI

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.

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