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 From an emotional standpoint, a case where someone is accused driving under the influence and killing another person is one of the toughest.  With the victim, you usually have someone who did not deserve to die.  They are often young, in the prime of their lives.  They are usually also close to the driver.  The victim is often a spouse, girlfriend, boyfriend, or sibling of the accused.  Unfortunately, that person is not available to express forgiveness to the driver.
 
As for the driver, you often have a person who has never been in trouble in his life.  He may be college educated, have a great job, and a loving family.  But for this horrible incident he would have continued to be an upstanding citizen.
 
Recently, a San Jose woman pled guilty to gross vehicular manslaughter after hitting and killing a 79 year old grandmother.  She is waiting to be sentenced by a Santa Clara County judge.  Her maximum possible sentence is 12 years in the state prison.  In fact, the judge is precluded from granting this woman probation unless he finds “unusual circumstances” where the interests of justice require it.  According to statements, the family of the victim has forgiven the defendant, and believes that the victim would forgive her as well.  Unfortunately, California DUI sentencing law provides somewhat less opportunity for the Court to forgive her. 

As a former prosecutor, I can tell you that, regardless of the outcome, nobody wins in these cases.  Regardless of what side you are on there is nothing but tragedy in these cases.  An innocent victim loses her life, and a contrite survivor is cast into the hell of the California prison system.  

Blog Category:
12/22/2011
James W Harwood
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Your Miranda Rights: Part 2

Today, I want to talk about what you need to do to invoke your Miranda rights.

Category: General

12/21/2011
James W Harwood
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Your Miranda Rights

Many people charged with driving under the influence assume that failure by police offers to advise them of their Miranda rights should automatically win them a dismissal of their charges.

Category: General

12/19/2011
James W Harwood
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More DUI Checkpoints this weekend

Yesterday I reported in my blog that there will be two driving under the influence vehicle checkpoints in Contra Costa County.

Category: General

12/16/2011
James W Harwood
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Contra Costa Sobriety Checkpoints

According to an article in the December 15, 2011 Contra Costa Times, police officers throughout the county are planning various increases in DUI enforcement.

Category: DUI and DWI Laws For California

12/14/2011
James W Harwood
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Driving on a Suspended License after a DUI

Most people arrested for driving under the influence of alcohol or drugs will face the reality of having their licenses suspended within 30 days.

Category: General

12/9/2011
James W Harwood
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Santa Rosa DUI Checkpoint this Weekend!!!

There will be a driving under the influence (DUI) sobriety checkpoint conducted this Saturday, December 10th.

Category: General

12/8/2011
James W Harwood
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Racial Profiling

The practice of racial profiling is probably as old as law enforcement.

Category: General

12/6/2011
James W Harwood
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How Much Time Does to the DA Have to Bring You to Trial?

Your arrest for driving under the influence kicks off a number of important time limitations.

Category: General

12/2/2011
James W Harwood
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Discovery of Police Records

Driving under the influence (DUI) prosecutions usual rely heavily on the testimony and credibility of police officer witnesses.

Category: DUI and DWI Laws For California

12/2/2011
James W Harwood
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A DUI in Federal Jurisdiction

Crossing into Federal Jurisdiction in San Francisco can be as easy as deciding to take a shortcut through The Presidio to get home from a restaurant.

Category: General

11/23/2011
James W Harwood
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FIGHTING BLOOD EVIDENCE

Blood sample evidence is frequently used in California as evidence of intoxication in driving under the influence cases. Out of the three available tests in Ca

Category: DUI and DWI Laws For California

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11/18/2011
James W Harwood
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Attempted Driving Under the Influence

Although rare, charges of Attempted DUI are not unheard of in California.

Category: DUI and DWI Laws For California

11/16/2011
James W Harwood
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License Plate Issues

The first step in beating a driving under the influence charge is not getting pulled over in the first place.

Category: General

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11/11/2011
James W Harwood
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Ignition Interlock Devices

A growing trend seen in driving under the influence law is the use of ignition interlock devices (IID).

Category: General

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11/7/2011
James W Harwood
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San Francisco TV Network Reports DUI Field Sobriety Tests Flawed

On October 27, 2011, KTVU, the San Francisco Fox affiliate aired a special report on the reliability of field sobriety tests.

Category: General

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11/7/2011
James W Harwood
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Partition Ratio: More Reason to Question the Breath Test

We all know the situation: A person blows into a breath testing device, the thing emits a few clicks and beeps, a ticket chugs out saying 0.10, and another DUI

Category: General

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11/7/2011
James W Harwood
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Dirty DUI/Dirty Cops

“One of the most deplorable legal practices I have ever heard of.” This was how a senior deputy district attorney in Contra Costa County described the circumst

Category: General

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11/7/2011
James W Harwood
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Effects of Reflux Disease on Breath Tests

Breath testing has been touted as an accurate and reliable method of determining a person’s blood alcohol in driving under the influence cases.

Category: General

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11/7/2011
James W Harwood
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Sobriety Checkpoints

Sobriety checkpoints occupy a precarious area in the law. Normally, an officer must have reasonable suspicion that you have somehow violated the law in order

Category: General

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7/26/2009
Tom Foster
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David Baker, the Alexandria Virginia Police Chief was arrested on July 25, 2009 for DWI with a reported blood alcohol level of .19.  Chief Baker was involved in an automobile accident that sent at least one person to the hospital.  Chief Baker was placed on paid leave. This accident and arrest occurred in Arlington.  Chief Baker was in an Alexandria police department vehicle.



Category: General

6/28/2009
Bob Battle- Richmond Area
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North Carolina State Trooper John C. Fogg was arrested in June, 2009 for driving while intoxicated after he was involved in a two car crash on the Durham NC Freeway.

Fogg blew a .17 BAC on the ECIR2 breath tester in use in North Carolina.  The ECIR2 is not as effective in detecting mouth alcohol as its predecessor the I-5000. 

Fogg is 40 years old and a North Carolina State Trooper since 2007.

Category: General

3/31/2009
Mindy
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A ruling by the Connecticut Supreme Court means that you don’t have to actually be driving to be convicted of driving under the influence (DUI) in Connecticut.  The Supreme Court’s ruling, which was 5-0 in the case of Michael Cyr, showed that drunk drivers do not have to be driving their cars to be charged with operating a motor vehicle under the influence of alcohol or drugs.

Michael Cyr had been arrested in Manchester in February 2005 after he was found in a parking lot near a bar.  Cyr had started his vehicle remotely and then sat in the driver’s seat intoxicated.  However, he never put the key in the ignition and did not drive anywhere.

The Appellate Court had thrown out Cyr’s conviction, but Supreme Court Justices have ordered to court to reinstate it and send the case back to Manchester Superior Court for sentencing.

Cyr, a 50-year-old Andover resident, faces a jail sentence of up to one year followed by a three year probation period.  This DUI offense would make it Cyr’s third DUI conviction, as he had prior convictions in 1997 and 1998.

According to Chief Justice Chase Rogers, “In starting the engine of his vehicle remotely then getting behind the steering wheel, the defendant clearly undertook the first act in a sequence of steps necessary to set in motion the motive power of a vehicle.”

The phrase, “motive power,” comes from a 1939 Connecticut court decision, which defined what constitutes “operating” a motor vehicle.

Cyr’s case is one in many that have raised questions concerning the definition of operating a motor vehicle under Connecticut’s drunk driving laws.



Category: General

3/30/2009
Mindy
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Earlier in March, Richmond, Virginia DUI defense attorney Bob Battle cast doubt regarding the accuracy of Fairfax County’s breath testing machines.  According to Mr. Battle, one of the machines used by the county, the 10-year-old Intoxilyzer 5000, has significant weaknesses.  Police officers and courts often use the results of this machine to convict a driver of driving under the influence (DUI) in Virginia.

Bob Battle was representing a driver accused of DUI, when he discovered the weakness in the Intoxilyzer 5000.  According to Mr. Battle, when he received the records of the machine, he found out that one of the motors had been replaced.  After further investigation, he discovered that Virginia had purchased a number of replacement motors from various companies and that they couldn’t even tell you what motor was in the machine.  Without knowing the details of the replaced motors, the entire Intoxilyzer 5000 can be inaccurate.

The Fairfax County, Virginia General District Court judge presiding over the case agreed to allow experts to test the accuracy of the breath machine.  However, the prosecution wanted to avoid the testing and offered to reduce the DUI charge to reckless driving, which allowed the motorist to keep his license.  The deal offered by the prosecution was too good to turn down, but Mr. Battle believes that the breath machine will be tested one day.

"I sincerely believe it's going to be like that scene from the Wizard of Oz.  Once they roll back that curtain, they're going to find that this machine is not the perfect machine they try make it out to be -- that this is an outdated contraption. That's why Virginia, when they contracted for the new replacement machines, one of the conditions was that it couldn't have this type of motor in it," said Mr. Battle.



Category: General

3/27/2009
Mindy
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You do not have to be driving drunk to be arrested for DWI or DUI.  Drivers are frequently accused of driving under the influence, when in fact, they were never drunk.  Even if you have only had a couple of drinks, you can be arrested for drunk driving if you are pulled over by a police officer.

A police officer has to have a justifiable reason to pull you over for suspected drunk driving.    However, it is not difficult for them to find an excuse, but they usually only focus on the vehicles with obvious violations.  For example, if you are speeding, run a red light or roll through a stop sign, chances are that you will be pulled over by a police officer.  You should also be aware that if you have had a prior DUI or DWI conviction and are driving around late at night, police officers will be looking for a reason to pull you over.  Police officers are known to spend a lot of time reading license plate numbers by inputting them into a central database.  A prior DWI or DUI conviction will show up for the registered driver of the vehicle.

The time of day that you are on the road can also make the difference as to whether or not you will be stopped for DUI or DWI.   Police officers will be looking for drunk drivers during regular bar hours and during special events, such as festivals and sporting events.  Try to avoid areas that are highly concentrated with bars and nightclubs, which will reduce your odds of being pulled over for drunk driving.

The article, What to Expect During a DUI or DWI Stop, has more information about this topic.



Category: General

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3/26/2009
Mindy
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Mildred “Millie” Jenkins, a local Mothers Against Drunk Driving volunteer, continues to be at odds with the way Warren County Commonwealth’s Attorney Brian M. Madden’s office prosecutes DUI (driving under the influence) cases.

Jenkins cited four recent DUI cases in the county, voicing concern that a blood-alcohol certificate was not entered for the defendants, during a March 5th story in the Northern Virginia Daily.  The certificate would have triggered mandatory jail time and a mandatory ignition interlock device on their vehicles.  An ignition interlock device will not allow the engine to start if a driver’s blood alcohol level is 0.02 percent or above.

Madden responded to Jenkins’ comments in a March 6th e-mail and press release.  He stated that Jenkins had a dual standard when it comes to the prosecution of DUI cases.  Madden cited a case involving Lauren Peterson Cummings who had a blood-alcohol level of 0.19 percent, more than double the legal limit in Virginia, in his response to Jenkins.  He said that Jenkins had asked for clemency for Cummings because she wanted to volunteer with MADD.  However, the prosecution did not agree to Jenkins’ request.

According to court documents, Cummings pleaded guilty to DUI and was given a 60-day jail sentence, with all but four days suspended.  Her blood-alcohol certificate was not entered.  Madden commented that, “no one recalls Ms. Jenkins objecting to this result.”

Jenkins has adamantly denied that she asked anyone to give Cummings a break. 

Madden stated in his press release that Jenkins should have come to him or a General District judge before taking her concerns to the newspaper.



Category: General

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