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Recent blog posts

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People v. Jones (2013) No. 1-11-3586 (Unpublished)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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Implied Consent Is Not Fourth Amendment Consent
State v. Butler
232 Ariz. 84, 302 P.3d 609

Independent of the implied consent statute, the Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth's age and a parent's presence are relevant factors for a trial court to consider in evaluating whether consent was voluntary under the totality of circumstances.

Are Statutes Criminalizing or Enhancing Sentences Based on Chemical Test Refusals Constitutional?

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Read my article on the DUI News Blog (www.duinewsblog.org) about constitutionally suspect DUI Checkpoint operations, many of which are operated right here in California. Call me today, or send me an e-mail, if you desire a consultation about your DUI arrest. 

More On Warrantless Blood Draws - What Constitutes Consent?

In Missouri v. McNeely , which was discussed in our previous post, the United States Supreme Court affirmed its holding in a 1966 case called Schmerber v. California (several California Court of Appeal decisions in the 47-year interim had watered down and misinterpreted Schmerber , declaring that it authorized blood draws without a warrant anytime a person was lawfully arrested on suspicion of driving under the influence). In fact, Schmerber very clearly indicated that a warrant is required except in limited situations where there is no time to get a warrant.

Now that McNeely has overruled those California cases, warrantless blood draws in DUI cases present a bevy of potential issues for suppression of the evidence in the absence of consent.

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The U.S. Supreme Court Decision belows underscores why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.
MISSOURI V. MCNEELY

THIS U.S. SUPREME COURT DECISION OVERRULES SEVERAL CALIFORNIA COURT OF APPEAL CASES THAT ERRONEOUSLY HELD POLICE MAY FORCIBLY TAKE A BLOOD SAMPLE FROM A DUI SUSPECT WITHOUT A WARRANT BASED SOLELY ON A LAWFUL ARREST AND MEDICALLY APPROVED MANNER OF DRAWING BLOOD.

WHAT DOES IT MEAN AND HOW IS IT PLAYING OUT?

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the State v. Newman case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

State v. Newman , ___P.3d___ (2013 WL 2370589 (Or.) – Docket No. S060182

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the U.S. v. Tavera case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

Defendant was a passenger in a truck transporting concealed methamphetamine. He denied having any knowledge of it but was convicted nevertheless. His conviction was vacated when it was discovered after trial that the co-defendant driver had told the prosecutor during plea negotiations that Defendant had no knowledge of the drug conspiracy.

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the People v. Gaytan case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

People v. Gaytan (IL - Court of Appeal, Dist. 4) May 13, 2013 – Docket No. 4–12–0217)

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the State v. Reed case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

State v. Reed

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the Sauls v. State case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

Sauls v. State , ___ S.E.2d __, 2013 WL 292146 (GA Supreme Court)

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the Commonwealth v. Brown case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

Commonwealth v. Brown (Mass. Appeals Court June 20, 2013 – Docket No. 12-P-614)

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Some interesting cases relating to common California DUI defense issues have been published in the past few months. Some, such as the Salinas case below, are binding legal precedents that California courts must follow in drunk driving cases. Out-of-state decisions from state appellate courts are not binding on California Courts, but they are often looked to as persuasive precedent by trial judges presiding over DUI motions to suppress evidence and trial.

This is why it is important to have a Board-Certified DUI defense attorney in your corner who keeps abreast of these decisions, as they may impact your case.

Salinas v. Texas

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Expired Tube and “Vigorous Shaking" Leads To Exclusion of BAC Result
Hunter v. State
___ A.3d ___, 2012 WL 5349395 (Del.Supr.)

Sometimes a leading question can backfire, and sometimes the best objection is the one you don’t make.

Q: Okay. So she shook it vigorously just to make sure everything was mixed up properly, right?

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Nurse Gets Arrested For Refusing Blood Draw Order
Depalis-Lachaud v. Noel
U.S. Court of Appeals (11 th Cir. 2013) – No. 12-12903 (Unpublished)

A deputy sheriff transported a suspected drunk driver to the hospital following an accident, and directed a registered nurse to draw blood for evidentiary purposes. The nurse declined to do so without at least talking to a superior or on-duty doctor, and was arrested by the deputy for allegedly violating Florida statutes 843.02 (resisting or obstructing an officer in the execution of any legal duty) and 843.06 (neglecting or refusing an officer in the execution of his office in a criminal case).

The nurse brought a 1983 civil rights action against the deputy sheriff, and in reversing an order for summary judgment against the deputy, the Court held that “a reasonable officer could believe that [the nurse] obstructed, resisted, or opposed [the deputy’s] efforts to obtain the blood sample in violation of [the foregoing statutes]. The Court also affirmed the trial court’s denial of the deputy’s motion for summary judgment, thus leaving him potentially liable.

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