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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.”

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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.

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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.

Held : The trial court prejudicially erred in refusing to allow scientific testimony to be presented that would have raised doubts about the reliability of the EC/IR and PAS breath testing devices, with respect to the physiological variables that can affect the sample of breath or air taken.

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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.

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.

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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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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)

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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."

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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.

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:

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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."

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Open Container – No Chemical Test Required To Establish Alcohol

Derosiers v. District of Colombia , - A.3d - -, 2011 WL 1894854 (D.C.)

Circumstantial evidence held sufficient to support a conviction for possession of an open container of alcohol in a vehicle, even in the absence of a chemical test of the liquid in glass jar that allegedly contained alcohol. Police officer observed and smelled liquid and recognized, based on his experience, distinctive smell of vodka emanating from clear liquid inside glass jar found next to defendant, smell of alcohol emanated from defendant and vehicle containing jar, and defendant, who was asleep in front seat of parked vehicle, appeared to be intoxicated at time jar was found next to her.

Police Officer’s Opinion Of Guilt

State v McLean 205 N.J. 438 (N.J. 2011)

The NJ Supreme Court reversed a drug conviction which had been partially based upon use of the so called "lay opinion rule" where the police officer testified based upon his training and experience as to what constituted intent to distribute.

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Destroyed Or Lost Video Tape

People of Illinois v. Aronson , - N.E.2d - -, 2011 WL 941306 (Ill.App. 2 Dist.)

A video tape was made on the very issue disputed by the parties (i.e., whether reasonable grounds existed for the officer to believe defendant was driving while intoxicated). Although the officer’s testimony was deemed credible and no finding was made of intentional or willful destruction of the tape, the trial court’s decision to rescind his license suspension was affirmed on the basis that the lost tape, coupled with the defendant’s testimony, outweighed the evidence in the State’s favor.

State of New Jersey v. Burns, Not Reported in A.3d, 2011 WL 1584364 (N.J.Super.A.D.)

Court rejected a licensee's contention that the State must 'prove-up' the admissibility, accuracy, and reliability of the breath test equipment before finding a “refusal” to submit to it. 

The Court noted that a similar contention concerning the qualifications of a breath test operator was previously rejected, citing In the Matter of John Ferris, 177 N.J.Super. 161 (App.Div.1981), certif. denied, 87 N.J. 392, (1981).

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U.S. Supreme Court Holds That Chemical Test Result In DUI Case Is Inadmissible At Trial Unless Lab Technician Who Performed Analysis Is Subject To Cross-Examination By Defense In Court

Decision Trumps Prior California Decisions


Declaring that “[t]he Sixth Amendment’s Confrontation Clause confers upon the accused ‘[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him,’” the United States Supreme Court reversed a drunk driving conviction where the accused was denied the opportunity to cross-examine the actual lab analyst who completed, signed and certified a forensic laboratory report concerning his purported blood-alcohol level. Bullcoming v. New Mexico - Case No. 09-10876.

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Bay Area / San Francisco DUI lawyer Paul Burglin filed the following appellate brief in the First District Court of Appeal today (July 14, 2011), urging the Court of Appeal to affirm a ruling that will give multiple drunk driver offenders the ability to obtain an Ignition Interlock Device (IID) restricted license after just 90 days of suspension for a second offender, and six months for a third offender.

Read Brief Here

Raj Rajaratnam Takes The Fifth, And For Good Reason

Raj Rajaratnam took the Fifth and declined to testify in his own defense against charges of insider trading. Facing decades in prison if found guilty, you might think the guy would take a shot at trying to personally tell his side of the story.

Barry Bonds did the same thing - remaining silent in his trial on perjury and obstruction of justice charges.

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Here in Part 3 in my series of related posts, I will continue my discussion about the Barry Bonds trial and how it relates to DUI or Drunk Driving Defense cases. As a San Francisco DUI attorney, there are a number of similarities I have seen between this case and those that I am involved in.

When a jury convicts a defendant as part of an agreement to simply end their own division over various charges, and that verdict is inconsistent with its verdict or deadlock on other counts, it’s a violation of their duty as jurors and a denial of due process. The defense will contend that the jury’s failure to unanimously conclude that Bonds had committed perjury before the Grand Jury is inconsistent with their finding him guilty on the obstruction of justice count (the jury deadlocked on the three perjury counts, with one perjury count being 11-1 for guilty).

Bonds was found guilty of having violated Title 18, section 1503, of the United States Code, which prohibits one from intentionally giving false, evasive, or misleading testimony to a federal grand jury. The prosecution will contend that there is nothing inconsistent with the jury having found Bonds that he was intentionally evasive in his testimony, even though there may have been a reasonable doubt as to whether he perjured himself.

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Continuing on from my last post , let’s talk about the Barry Bonds trial and how it reflects on general criminal defense strategy. As a San Francisco DUI attorney, I can tell you the same strategies apply if you have been charged with and are being defended for a DUI and I address this directly later in my post.

You may ask, “Why did the defense not put on any evidence in the Barry Bonds trial?"

They did. “Wait," you say, “I just read where the defense rested without calling a single witness!" That’s true, but the defense evidence came in the form of cross-examination of prosecutorial witnesses. Cross-examination has been referred to as the greatest engine ever invented for the discovery of truth. That may or may not be true, but it is undoubtedly one of the most powerful weapons in a trial lawyer’s arsenal.

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