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Posted on in DUI

Has Ride-Sharing Decreased DUI Arrests?A recent study by the University of California at Davis and a research firm discovered that arrests for driving under the influence of alcohol or drugs have decreased in many major California cities. Researchers found that DUI arrests decreased during a two-year period by:

  • 14 percent in the San Francisco-Oakland area;
  • 14 percent in Los Angeles;
  • 26 percent in Sacramento;
  • 28 percent in San Jose; and
  • 32 percent in San Diego.

Researchers hypothesized that increased use of ride-sharing services may be part of the reason for the decrease, a claim that companies such as Uber have touted for years. The time period of the study corresponded with the introduction of ride-sharing services in some of the cities. However, there is not a clear causation between the use of ride-sharing services and DUI arrest statistics.

How Ride-Sharing Helps

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Posted on in DUI

Why DUI Suspects Can Be Charged with MurderSecond-degree murder is the most serious charge you can face after an alleged driving under the influence incident. DUI murder charges in California are commonly called Watson murders because the policy stems from the 1980s case of People v. Watson, in which the California Supreme Court ruled that a DUI offender can be charged with murder. A DUI murder conviction can result in a prison sentence of 15 years to life and a fine of as much as $10,000.

Murder vs. Manslaughter

When someone dies as a result of an alleged DUI incident, prosecutors can charge the defendant with negligent vehicular manslaughter, gross vehicular manslaughter, or second-degree murder. Manslaughter is a serious charge but does not have as severe of penalties as murder. Manslaughter is a more common charge than second-degree murder because prosecutors need to prove the intent behind the incident:

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Posted on in DUI

DUI Arrests Are Down, But Not for WomenThe number of driving under the influence arrests in the U.S. has steadily decreased in the past decades. At the same time, there has been an unsettling increase in DUI arrests among women. To be clear, men still make up 75 percent of all DUI arrests. However, women were only 18 percent of the arrests as recent as 2003. An FBI study estimated that the number of female DUI arrests increased by 20 percent from 2003 to 2012. The most recent gender data in 2015 showed that the number has decreased slightly, though still nowhere near the 2003 arrest levels. Trying to understand the trend, researchers have largely hypothesized that women’s changing societal role has led to the increase in DUI arrests.

Work-Related Drinking

People in the workforce may partake in drinking as a social activity with co-workers or a means of relieving stress. The trend of an increased number of women in the workforce started long before the more recent increase in DUI arrests. However, women’s statuses in workplaces have seen more recent improvements. Women are more likely to hold positions that are the equal of men and thus may be invited to more social outings at restaurants and bars. DUI arrests often follow a night of drinking with friends or co-workers.

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Recreational Marijuana Brings California's Subjective DUI Laws to LightThe legalization of recreational marijuana in California has led to increased police attention towards driving under the influence of marijuana. DUI of marijuana has long been a crime, with the same penalties as DUI of alcohol. Police officers are looking for the same signs of driver impairment that accompany both DUI of alcohol and drugs. Even physical symptoms can be similar for alcohol and marijuana users, such as blood-shot eyes and slow reactions. However, California’s DUI laws have not caught up to legalized recreational marijuana. Police officers and prosecutors have less experience handling cases of DUI of marijuana than they do with DUI of alcohol. Yet, California law forces them to be more subjective in determining when to arrest and charge someone with DUI of marijuana. There are several problems with DUI of marijuana laws that affect all states where recreational marijuana use is legal:

  1. No Objective Definition of Being High: With DUI of alcohol charges, the results of blood alcohol concentration tests are legally accepted to help determine when someone is impaired by alcohol. California does not yet have an equivalent test to determine when someone is legally impaired by marijuana. Other states that have legalized recreational marijuana use THC levels as an indicator of impairment. However, states do not agree on what the THC limit should be. There is also continued debate on whether THC levels accurately reflect a driver’s impairment.
  2. More Difficult to Test for THC: There is not a breath test that can determine the level of THC in a driver’s system. Blood and urine tests are considered the only reliable ways to detect the presence and level of drugs in a person’s body. Police officers are not qualified to perform such tests in the field. The suspect will likely be transported to a police station or medical facility for the testing. Thus, the police officer will have come to the subjective conclusion that someone should be arrested for DUI of marijuana before the tests are administered.
  3. Misleading Test Results: Traces of drugs such as marijuana stay in a person’s body longer than alcohol. It can take weeks for all traces of THC to dissolve in a person. A blood or urine test may show levels of THC when a driver is no longer impaired by the substance.

Contesting DUI Charges

Arrests and charges for DUI of marijuana mostly rely on subjective observations of whether a driver seemed high. However, more objective laws could be problematic for drivers if they do not accurately measure whether a driver is impaired. With the uncertainty surrounding DUI of marijuana laws, you need an experienced attorney to represent you. A San Francisco DUI defense attorney at Burglin Law Offices, P.C., can identify ways to contest your DUI charge. To schedule a free consultation, call 415-729-7300.

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mislead

Attorneys have an ethical duty to not mislead the public with false or misleading claims about their experience and qualifications.

Unfortunately, many lawyers accept solicitations from for-profit entities selling certificates, website badges, and trophies accompanied with superlatives like "Top 100 Lawyer" "Superior Lawyer" and "Premier Lawyer" with little or no transparency revealing the true basis for such recognition. These pay-to-play enterprises do not administer a legitimate examination of the purchaser’s trial skills and legal knowledge, and consumers seeking a qualified attorney are victimized by these misleading claims.

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Posted on in DUI

defend 2016

Another new year is upon us and I sincerely hope you did not start it off with a DUI arrest. Spending four or more hours in a drunk tank is one of the most demoralizing experiences one can have, but now that you're out let's try to minimize the consequences.

Depending on whether you submitted to a chemical test of your breath or blood, or refused to do so without a warrant, you are most likely looking at a license suspension ranging from 4 months to one year.

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Posted on in DUI

how to deal

Originally published in the November 2015 issue of Marin Magazine, veteran San Francisco and San Rafael DUI attorney Paul Burglin was asked:

 - What really happens after you see the bluelights in the rearview mirror?
 - What can you do to minimize the damage a DUI charge wreaks on your life?

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Posted on in DUI

Allow me to share with you some insight about on-line reviews and website claims in the field of DUI and DMV defense.

Inexperienced attorneys are more tech savvy than veteran lawyers - the latter got their degrees and began practicing law before computers and I-Pads were in existence. Young attorneys learned how to use these things in grade school, and then got training in College on how to utilize these tools for marketing purposes. Because the business of a new lawyer is slow owing to lack of experience, reputation and referrals, they also have the time it takes to get family and friends to write favorable reviews and load their websites with the words and links that boost their organic ranking on search engines.

Let's start with AVVO. When you see an attorney with 40, 80, or 100-plus client reviews on AVVO, understand that the attorney has undoubtedly solicited reviews. I have represented more than 4000 clients in my career, but I do not solicit reviews because I believe it is unseemly to ask clients to talk about confidential matters unless they want to.

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Those leaving AT&T Park this evening may find themselves getting stopped by the California Highway Patrol or the San Francisco Police Department for any number of reasons. The safest way to avoid it is to not drink and drive, but drinking and driving remains legal in California and it alone is not a basis to stop a motorist unless the he or she is observed drinking and driving at the same time!

If you get stopped and are ultimately arrested on suspicion of driving under the influence, you may be able to get the evidence suppressed and the charges dropped if the police lacked sufficient probable cause to initially detain you.

911 reports – Sometimes police officers are notified by their dispatcher that somebody reported your vehicle as being driven by a drunk driver. That alone is not always enough to justify an enforcement stop, unless the police independently observe something wrong with your driving or the reporting party gives sufficient details about you, your vehicle, and the manner of driving.

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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:

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People v. Vangelder (2013)
___ Cal.4 th ___ (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).

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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.

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Blood Draws At Jail Facility By Non-Physician/Non-Nurse Found Reasonable
People v. Cuevas
___ Cal.App.4 th ___ (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.

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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.

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:

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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);

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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 (2 nd District)

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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.

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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.

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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."

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