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Recent Blog Posts
San Francisco DUI Attorney Case Law Updates On Reasonable Suspicion
State of Kansas v. Peach , Slip Copy, 2011 WL 4440184 (Table) (Kan.App.)
The driver passed a police cruiser parked on the side of the road which may have had its headlights on or just the parking lights. When the driver did not dim his brights as he passed, the officer made a u-turn and detained him.
The detention was held unconstitutional because the subject statute only requires the dimming of bright lights when a motorist is approaching “an oncoming vehicle within 500 feet..." Since the police cruiser was parked on the side of the road it was stationary and not oncoming.
The Court also rejected a prosecutorial claim of “good faith," holding that a mistake of law cannot be the basis for the “good faith" exception to the warrant requirement.
Are Oral Arguments Worth Arguing About?
Adam Liptak is the Supreme Court correspondent for The New York Times.A version of this news analysis appeared in print on May 6, 2012, on page SR5 of the New York edition with the headline: Are Oral Arguments Worth Arguing About?
SUPREME COURT advocacy is not usually a spectator sport, so it may have surprised Solicitor General Donald B. Verrilli Jr. when the reviews of his defense of President Obama’s health care law started to roll in.
"Donald Verrilli makes the worst Supreme Court argument of all time," a blogger at Mother Jones wrote. A month later, Mr. Verrilli was back at the court, now asking it to strike down parts of Arizona’s tough immigration law. The Drudge Report’s assessment: "Obama’s lawyer chokes again."
It is true that Mr. Verrilli coughed and stumbled a bit at the beginning of the crucial second day of the health care argument, and it is possible to imagine crisper answers than some of the ones he gave. He may have suffered in comparison with Paul D. Clement, a dazzling advocate who faced off against him in both cases. And Mr. Verrilli may have been thrown off his game by hostile receptions that he did not anticipate.
San Francisco DUI Attornety: Helping people avoid drunk driving
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.
San Francisco DUI Lawyer Files: Expert Testimony Concerning Physiological Variability Affecting Breath Testing Improperly Excluded
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.
San Francisco DUI Attorney Files: Colorado DWAI Conviction Constitutes a Prior In Texas
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.
San Francisco DUI Lawyer: Out of State Alcohol Related Convictions
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.
San Francisco DUI Attorney: Mistrial Improperly Ordered – Double Jeopardy Triggered
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.
San Francisco DUI Attorney: Community Caretaking Claim Rejected
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.
San Francisco DUI Attorney: 10-Second Pause At Green Light Insufficient Basis For Stop
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.
San Francisco DUI Attorneys: Failure to Appear On Prior DUI Arrest May Constitute Prior Conviction For Sentencing Enhancement Purposes
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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