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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:
2/18/2009
Mindy
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According to a recent report, there were 68 DUI arrests in Napa County in January alone.

The NapaValleyRegister.com released a report reflecting the number of DUI arrests and DUI convictions, including so-called “wet reckless” convictions, in Napa County.  The information comes from the Napa County Sheriff’s Department and reflects monthly statistics.  There are even names, convictions and blood-alcohol levels listed in the report that come directly from Napa County Superior Court.

The DUI convictions listed in the report are cases where the defendants pleaded guilty or no contest to one or more drunk driving charges or where one or more of the charges led to a guilty verdict at trial.

NapaValleyRegister.com’s report shows vehicle code violations, which are driving under the influence (Vehicle Code section 231512), reckless driving while under the influence (23103.5) and causing injury to another person while driving while under the influence (23153).

The Napa County Superior Court provided blood-alcohol levels based on the results from various tests.  Some of the blood-alcohol tests were taken at the time of the arrests, while others were taken with a blood sample at a later time.  The results of these tests have not necessarily been proven or admitted in court.  In California, a person is not allowed to drive if he or she has a blood-alcohol level of 0.08 percent or higher.

Below is a summary of the number of arrests, DUI convictions and blood alcohol levels.  Names are listed in the report, as well, which can be found on NapaValleyRegister.com

DUI Arrests: 68

DUI Convictions/pleas: 63

Reported blood-alcohol below .10 or unavailable: 18

Reported blood-alcohol between .10 and .19: 32

Reported blood-alcohol between .20 and .29: 12

Reported blood-alcohol between .30 and .39: 1



Category: General

2/17/2009
Mindy
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A man being accused of DWI in New Jersey, is using a rare legal defense known as “pathological intoxication.”  Eugene Baum Jr., a Dover man, has been accused of drunk driving and killing two teenage pedestrians in Kinnelon almost three years ago.

According to the pathological intoxication defense, someone can have a condition where they regularly become so intoxicated that they have no control over their alcohol or drug addictions and are unaware of their actions.

Baum’s DWI defense attorney claims that Baum had been hospitalized three times before the fatal accident two years ago for alcoholism.  On the evening of the crash, he was operating as if he was on “autopilot” and was oblivious to his actions.  His attorney went on to describe Baum as “a sick individual who suffers from a medical condition of pathological intoxication.”

The attorney from the New Jersey Crime Victims’ Law Center feels that Baum’s defense is just a gimmick and said the only time you see such a defense is on a television show, such as Law and Order.

John Kip Cornwell, an associate dean and professor of law at Seton Hall Law School, likened Baum’s pathological intoxication defense to an insanity defense. 

“It’s a very rare defense.  He’s trying to thread a needle that would link all of these things together,” said Cornwell.

Baum has been charged with two counts of first-degree aggravated manslaughter in the April 20, 2006 deaths of Mayada Jafar of Kinnelon, 15, and Athear Jafar of Jefferson, 16.  When Baum was arrested for DWI, his blood-alcohol level was 0.305 percent, almost four times higher than New Jersey’s legal limit of 0.08 percent.

The pathological intoxication claim may be allowed, as involuntary intoxication is not prohibited as a defense. 



Category: General

2/16/2009
Mindy
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If you are pulled over for a suspected DUI in Virginia, there is a good chance that you will have to do a horizontal gaze nystagmus (HGN) test, as part of a series of field sobriety tests.  Police officers use the HGN test in Virginia to help determine if you are intoxicated.  Even though scientists believe the HGN test is reliable, there are my factors that can alter the results.

Nystagmus is defined as an involuntary movement of the eyeball that occurs when there is a disturbance of the inner ear system or the oculomotor of the eye.  Consuming alcohol is supposed to hinder the ability of the brain to control the eye muscles, which is where the HGN test comes in to play.  The more alcohol that is consumed, the great amount of involuntary movement of the eyeball. 

During the HGN test, a police officer will be looking for movement in the eye when you look to the side.   The officer will most likely ask you to follow an object with your eyes, such as a pen or penlight.  Generally, the object is held about 12 to 15 inches from your face and at a slightly higher eye level.  It is important that the police officer is able to clearly see your eyes, if not, the results could be wrong.

There are many causes of nystagmus, besides alcohol consumption.  Neural or muscle activity, brain damage, eye strain, brain tumors, inner ear diseases and other health problems can all result in nystagmus.  If a police officer is not properly trained in administering the HGN test, the results could be skewed. 

If you have been arrested for a Virginia DUI charge, it is crucial that you contact and an experienced DUI attorney who can review the details of your HGN test and other field sobriety tests. 

The article, “The Horizontal Gaze Nystagmus Test Used in DUI Arrests,” has more information on this topic. 



Category: General

2/13/2009
Mindy
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Various states, including Alaska, Arizona, Colorado, Illinois, Nebraska and Washington, have already enacted laws requiring first time DUI offenders to install ignition interlock systems into their vehicles.  These devices are similar to breathalyzers and are installed into the vehicle’s dashboard.  The engine will not start until the driver blows into the device and has a low reading (according to the programmed blood alcohol concentration, BAC).

Virginia has proposed a similar law that would require drivers who are convicted for a first time DUI offense to install an ignition interlock in Virginia, even if there was a low BAC at the time of arrest.  This proposed law would revise the state’s existing law that requires ignition interlocks for repeat DUI offenders and for those who were arrested with a high BAC in Virginia.

This proposed law, and similar proposed laws in other states, has been a topic of many intense debates, which is discussed in the article, “Ignition Interlocks for First Time Offenders is a Heated Topic.”  The critics of this law feel that the requirement of an ignition interlock for a first time DUI offender is unfair and basically gives the same punishment to that driver as someone who has multiple DUI offenses.  Opponents to the law believe that ignition interlocks do not solve the problem of drunk driving.  A former MADD president was even quoted as saying that the drunk driving problem has been reduced to “a hard core of alcoholics who do not respond to public appeal.”

Advocates of the law have cited a 2008 study by the Pacific Institute for Research and Evaluation, which showed that interlock devices in New Mexico reduced the number of repeat DUI offenses by about two-thirds in the state.  However, critics believe that this decline could also be contributed to other factors, such as education programs.

If laws, such as the one being proposed in Virginia, are passed, many feel that judges will not have the ability to distinguish between drivers who have had a few drinks and barely go over the legal limit and those who go way over.



Category: General

2/12/2009
Mindy
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Congressman Jeff Flakes, R-Arizona, is planning to introduce a bill that would require an illegal immigrant who has been convicted for a third drunken driving offense in Arizona to be deported.

“I keep hearing again and again that illegal immigrants with several drunken driving convictions are still here and still on the road,” Flak said when he announced that he will sponsor the proposed bill.  “In many cases, people have been killed or severely injured, and it’s simply not right.”

According to Flake, high profile cases have brought more attention to the problem of illegal immigrants with multiple DUI offenses in Arizona.  One of the high profile cases included the death of Phoenix Police Officer Shane Figueroa last fall who was killed in a car accident caused by an illegal immigrant who was driving drunk.  Figueroa was responding to a call when a truck turned in front of his patrol car.  The impact of the collision spun Figueroa’s patrol car and he crashed into a block wall. He was taken to St. Joseph's Hospital and Medical Center where he died from his injuries.

Flake said that people are understandably upset that there isn’t a simpler way to deport illegal immigrant who have multiple DUI offenses.

“Right now, a drunken driving offense has no immigration consequences in and of itself. So this legislation would say, ‘If you have three drunken driving incidents, then you’re out.  It’s a deportable offense,’” said Flake.

Flake hopes that his proposed bill will lead to a similar federal law, where “three strikes and you’re out – out of the country.”



Category: General

2/11/2009
Mindy
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A New York State police investigator was charged last Friday, February 6, 2009, with driving while intoxicated, DWI.  He is known for his involvement with the Great American Irish Festival in the local community, which was confirmed by state police on Monday.

In New York, DWI is defined as having a blood-alcohol content (BAC) of at least 0.08 percent. The penalties for a DWI conviction in New York include the loss of driving privileges, fines, and a possible jail sentence.  A driver convicted of first time DWI offense in New York may have to pay a fine of up to $1,000 and may have to serve up to one year in jail.

Matthew Sullivan is facing DWI charges in New York.  He was suspended with pay pending an internal investigation, said state police Lt. Glenn Miner, a spokesman based out of Albany.

He was arrested for DWI by another member of the state police, said Miner.  According to police records from Friday night, Sullivan was arrested on Rt. 12 in the Town of Trenton, said an Oneida County Sheriff’s deputy.  The details behind Sullivan’s DWI arrest have not been released. 

Sullivan is a police investigator who works in the Troop D area based out of Oneida.  He is also the president of the annual Irish Festival and a 2007 recipient of the Accent on Excellence award for local community leaders.

Troop D Public Information Officer Trooper Jim Simpson was able to confirm that Sullivan is the Great American Irish Festival president, but directed any further questions regarding Sullivan’s arrest to the Albany office.

Sullivan declined to comment when he was contacted by a news reporter.



Category: General

2/10/2009
Mindy
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Albemarle County Police kicked off a campaign to nab intoxicated drivers on Super Bowl Sunday in Central Virginia.

Before the Super Bowl, Corporal Ken Richardson explained, “We are going to have heavy patrol from the roads during the time of the Super Bowl to look for intoxicated drivers.”

Albemarle County Police added seven traffic patrol units that Sunday to watch county streets before the official kickoff into the early hours of Monday morning, said Richardson.

Richardson said that they were looking for any unusual driving habits that people were doing, such as crossing the lines.

Central Virginia bars also helped out in the efforts to keep drunk drivers off the roads in Albemarle County.  Kiersten Kaufman of the Wild Wing Café in Charlottesville said that her staff was prepared to cut off fans who had enough to drink.  “We train our staff very, very well to know the signs of when someone is a little too intoxicated, and often times those signs present themselves before they’ve gotten to that point,” said Kaufman.

Some of the signs that Kaufman said to watch out for that would indicate someone had too much to drink include slurred speech, not walking properly, putting their head down or slowing down as far as drinking.

Richardson said that he hoped everyone would have come up with a plan to get home safely from Super Bowl parties.  One of the ways that people could prevent an arrest for driving under the influence (DUI) was by designating a driver.



Category: General

2/9/2009
Mindy
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The Georgia immigration law from 2006 is going un-enforced.   The immigration law, which was meant to crack down on illegal immigration has been called one of the nation’s toughest because it orders local governments, contractors and subcontractors to confirm the legal status of new hires.  It also has a provision addressing illegal immigrants who have been arrested for driving under the influence (DUI) in Georgia.

Based on this 2006 law, illegal immigrants arrested for DUI in Georgia, must be reported to immigration authorities.  However, supporters of this law do not feel confident that this provision is being taken seriously.  Proponents believe that the state government has not been enforcing the law and no one at the state level has checked to see whether governments and businesses are complying.

The DUI arrest provision of the Georgia immigration law, which requires jailers to check the legal status of anyone booked on a felony or a DUI, has had some problems.  For example, someone who has been arrested for DUI in Georgia may post bond to get out of jail before the feds are called to hold that person on immigration violations. 

“There is no state oversight of any of this stuff,” Terry Norris, executive vice president of the Georgia Sheriff’s Association said.

Some believe that this law has not been properly enforced because of a lack of accountability, as the Legislature never provided money to monitor the law.

“As far as any enforcement responsibilities under the law, we don’t have any,” said Labor Department spokesman Sam Hall.

Hall said that the agency offered to conduct random audits, if it received funding.  He even said that the agency posted guidelines on its website.  According to Hall, there is no central agency that has the authority to monitor who is complying with the law.



Category: General

2/6/2009
Mindy
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Last week, New Jersey bill SB1926 was heard by the New Jersey Senate Law, Public Safety and Veterans’ Affairs Committee.  The New Jersey bill would require the installation of breathalyzers in the cars driven by DUI first-time offenders who had a low BAC.

The American Beverage Institute (ABI), “an organization dedicated to the protection of responsible on-premise consumption of adult beverages,” has opposed the New Jersey bill requiring ignition interlocks for drivers convicted of DUI with a low BAC.  However, the organization is in favor of focusing on high BAC drivers and repeat DUI offenders, who the American Beverage Institute believes makes up the core of the drunk driving problem today.

According to ABI Managing Director Sarah Longwell, who was invited to provide expert testimony before the Committee, “we believe that this bill denies judicial discretion and ignores proportional response by mandating ignition interlock devices for low-BAC, first-time offenders.  This bill mandates that even those only one sip over .079 receive a punishment primarily reserved for the high-BAC, repeat offenders who cause the vast majority of alcohol-related fatalities in New Jersey.”

Even the former Mothers Against Drunk Driving president Katherine Prescott has said that the drunk driving problem has to do with “a hard core of alcoholics who do not respond to public appeal.”

Research from the National Highway Traffic Safety Administration has shown that the average BAC of a drunk driver involved in a fatal crash is .18 percent, which is more than twice the legal limit.

The New Jersey bill would target low BAC, first-time DUI offenders instead of the dangerous drunk drivers on the roads.  Many experts believe that first-time DUI offenders should not receive the same punishment as repeat offenders, which is essence, is what the New Jersey bill would accomplish.



Category: General

2/6/2009
Mindy
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Arizona Legislature proudly passed the strictest DUI laws in the country and began enforcement last year.

The legal limit for blood-alcohol content (BAC) is now .08 percent in Arizona and punishment for DUI conviction has become more severe.  Under the new law, a first-time DUI offender in Arizona may be required to install an ignition-interlock device in the car.  This device reads the driver’s BAC before the engine will start.

Another major change to Arizona DUI laws is the elimination of a certain quantitative BAC requirement to charge the driver with DUI.  Drivers have been charged with DUI with a BAC as low as .06 percent.  Some critics of the Arizona DUI laws have claimed that they are too ambiguous, allowing police officers to have too much power. 

If you are pulled over for DUI in Arizona, the police officer will ask you to submit to sobriety tests and will use the evidence collected against you.  The police officer will take notes as you perform certain tasks and if you appear to be intoxicated, you may be arrested for DUI.

Drinking and driving is a problem in Arizona.  Research by the National Highway Traffic Safety Administration (NHTSA)  shows that more than 30 percent of traffic fatalities in Arizona are related to alcohol.  People are encouraged to designate a driver, call a taxi or use public transportation, but that is not always an option.  Arizona’s public transportation system does not run late enough for many people and taxis can get expensive.  For example, the last bus leaving Tempe departs at 1:00 AM.  Increasing the hours of public transportation may be one way to lower the number of drunk driving accidents in Arizona.



Category: DUI and DWI Laws For California

2/6/2009
Mindy
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Over the last three years, Staunton’s law enforcement has been the most stringent by area authorities, according to statistics.  In 2006, Staunton police arrested 121 motorists and in 2007, this number jumped to 183.  Last year, there were 174 DUI arrests.

When Officer Lisa Klein, a spokeswoman for the Staunton Police Department, was asked why the number of arrests went down in 2008, she said that she thought the public was getting the message that driving under the influence in Staunton was not going to be tolerated.  “I do think people are responding.  We’ve been hitting it pretty hard,” said Klein.

According to Klein, there were no directives from top brass to target intoxicated drivers, but the fresh batch of police officers could have had an affect on the number of DUI arrests.

Staunton law enforcement has led the way in DUI arrests with a total of 478 arrests over the past three years.  Waynesboro arrested 395 suspected drunk drivers and the Augusta County Sheriff’s Office arrested 195 drivers.  Area 17 was placed first in “Operation Checkpoint Strikeforce” two of the last three years.

Miles Bobbit, director of Staunton’s Virginia Alcohol Safety Action Program (VASAP) said that DUI referrals to his organization have been increasing by 100 per year.  He said that the agency is on track to continue that trend this year.

The financial costs of a DUI arrest are high, which include towing bills, storage fees, court costs and fines, jail costs, lost work days, VASAP expenses and increased insurance fees.



Category: General

2/5/2009
Mindy
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Based on a proposed bill, if you have been convicted of DUI in Virginia, you would be required to install an ignition interlock even if your BAC was below 0.15 percent.  The bill, known as House Bill 2041, would revise the current state law that requires only repeat DUI offenders and drivers with a BAC above 0.15 percent to install these devices.  This bill is being discussed for the second year in a row and many Virginia legislators are concerned.  If it passes, Virginia would join eight other states that have similar laws.

An ignition interlock system is a small handheld device that attaches to the dashboard.  Before a driver can start the car, he or she has to blow into the device, which will measure BAC.  The driver is also required to blow into the device at designated times while driving.  The engine will only start if the driver’s BAC is lower than .02 percent.

According to a member of the House Courts of Justice committee, the cost of obtaining and installing the ignition interlock system is estimated at $455.

Del. Sal Iaquinto R-84 is the sponsor of the bill and believes that if passed, it will deter repeat DUI offenses.  He said that there is a 64 percent decline in DUI recidivism after the ignition interlock system is installed.

Critics of the bill are concerned that it could negatively impact people who need to drive for their jobs and people with multiple vehicles.  Del. G. Manoli Loupassi, R-68 said that since so many people rely on company vehicles for their jobs, the proposed bill could have “desperate impact on a large number of people.”

If the bill is passed, it will go into effect January 1, 2010.

 



Category: General

2/4/2009
Mindy
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Jamal Williams, the defensive tackle for the San Diego Chargers was arrested on suspicion of drunk driving early morning on Sunday, February 1, 2009.  He is the second Chargers’ player within the last month to be arrested for DUI.

Williams was initially pulled over for speeding on a freeway outside downtown.  He submitted to a blood-alcohol test, but it will take a few weeks for the results to be completed.  Williams was taken to a county jail where he later was released on bail.

Williams is an 11-year veteran and recipient of the Chargers’ Most Valuable Player Award this season.

According to the City Attorney’s office, Williams’ case had not been submitted as of Tuesday, February 3, 2009.

The team’s general manager, A.J. Smith said that “we’ll continue to monitor the situation and let the legal process run its course.”  He went on to say, “the Chargers have always been leaders and positive contributors to our community.  We take our stature in the community very seriously.  Through the Chargers and the NFL, our players receive one of the most comprehensive education and support programs in sports to help them deal with issues that affect all segments of society.”

Vincent Jackson, the Chargers receiver, was also recently arrested on allegations of DUI.  His DUI arrest occurred five days before San Diego’s playoff loss at Pittsburgh.  Jackson’s court date is set for February 17, 2009.  When he was arrested, he was on probation for a previous DUI arrest, according to the California Highway Patrol.



Category: DUI and DWI Laws For California

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11/17/2008
Bob Battle- Richmond Area
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The machine manufacturer refused to give up it source code.
Larry Taylor had an interesting post about Arizona DUI'S
Thousands of Tucson-Area DUI Cases May Get the Boot

Intoxilyzer 8000 May Be Ruled Unreliable

Tucson, AZ.  Nov. 9  – A dozen years ago, 3,000 drunken-driving prosecutions in Tucson were dismissed in one day – about 5,000 cases within a few months – because the breath-test device that said the drivers were drunk was deemed unreliable.

Those numbers could easily be surpassed if one of the current alcohol detectors in Arizona, the Intoxilyzer 8000, is found to be unreliable, a leading driving under the influence defense attorney said.

"This is going to be huge," said Tucson lawyer James Nesci, because the current machine is widely used statewide as opposed to the older device, which was used in Tucson and at a smaller agency…

Despite court orders across the country, CMI has declined to divulge the code, which defense attorneys say will show that the device is error-prone. The company has racked up more than $1 million in fines by refusing to comply with a similar Florida court order, records show.

CMI President Toby Hall didn’t return phone calls for comment. When Bernini first ordered CMI to release the code, Nesci said a process server couldn’t get Hall to accept the court order.

Last month, Bernini told prosecutors to get the source code from CMI.

Deputy County Attorney Robin Schwartz told Bernini that she didn’t think the state could force CMI to reveal the code.

Bernini also set a Nov. 24 hearing for Hall to appear and explain why she shouldn’t hold him and CMI in contempt for refusing to comply with her orders…

Recent events echo those in the mid-1990s when defense attorneys challenged the integrity of the RBT IV breath test machine, manufactured by Intoximeters Inc., based in St. Louis. Prosecutors eventually agreed that the device was faulty, which led to 3,000 cases being dismissed at once in 1997 and the total number thrown out about 5,000, Nesci said.

 



Category: General

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11/17/2008
Anders Johnson
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A DUI conviction in California will result in automobile insurance problems.  From the requirement of obtaining SR22 insurance, to renewing insurance policies, it is inevitable that automobile insurance rates will go up dramatically upon renewal.  In the alternative, the insurance company can elect to not renew the policy at all.

It is lesser known that a DUI conviction in California can effect other insurance policies as well.  You may be surprised to find out that your life insurance premiums may go up based on a DUI.  Since life insurance premiums are based on health conditions and life expectancies, a company may decide that a DUI impacts those factors.  The theory is that alcohol abuse reduces life expectancy by years and creates potential health problems.

In addition, disability insurance qualification or premiums can be affected by a DUI conviction.  Private disability insurance replaces income in the event of an illness or injury which prevents you from working.  Premiums, like life insurance, are based on your health condition.  A DUI can cause an increase in premiums, cancellation of a policy, or a denial of a policy.

It is important when you are facing a DUI charge to consult with a qualified California DUI attorney who can guide you about your various insurance concerns.



Category: General

11/17/2008
Bob Battle- Richmond Area
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Sheriff Tommy Thomas has been accused of being racist due to some emails that were discovered.
You decide for yourself:  http://abclocal.go.com/ktrk/feature?section=news/13_undercover&id=6231156
As you may remember from other blogs, the Harris County Texas Sheriff has been criticized and sued.
http://www.youtube.com/watch?v=yxf67bhoVVg

Thanks to Harrisonburg Virginia DWI Attorney Bob Keefer, www.BobKeeferLaw.com, for keeping me informed of this apparent abuse of police power.



Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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You've been charged with a DUI after a night out in the Mission in San Francisco.  You have a court hearing coming up.  The San Francisco police officer gives you a citation, along with your temporary driver's license.  What else could go wrong?

At the arraignment hearing, you receive your trial information, telling you what you are charged with.  You notice a few extra things.  These are called enhancements or aggravating factors.  They are either charged by the District Attorney or added later by the judge.  They are meant to increase the punishment of the DUI.

Some examples:  Driving under the influence with children in the car.  Soeeding or driving reckless.  Having a blood alcohol level above a certain level.  Refusing a test for measuring blood alcohol content.  Being in an accident, or worse, causing injury to another person, even one who is a passenger in your car.

If you haven't consulted with a qualified San Francisco DUI attorney yet, now's the time.  Any one of these enhancements could result in additional fines, additional jail time, or increased time in revocation of your license.  Don't try to handle this on your own.  A qualified DUI attorney can try to eliminate the enhancements, challenge the arrest itself, or do other legal maneuvers to your benefit.

Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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It's 2 a.m. in the morning, and you have been out and about in San Francisco, and it's time to drive home to the Marina District.  You know you have had too much to drink, but you get in your car anyway.  You drive one block and are in a residential area.  You stop your car, turn the engine off, and fall asleep.

Later an officer taps on your window, and begins the DUI stop procedures.  You are arrested for DUI.  But you weren't driving.  Can you get out of a DUI conviction?  Maybe.  Maybe not.

You may not know this, but you can be convicted of a DUI even if you aren't operating, moving or driving a motor vehicle.  The issue is whether you have control of the vehicle.  This comes into play if you have the car keys, either in the ignition or within reach.  In addition, you are in control if you are in the driver's seat.  More obvious signs are a running engine, or stopped in traffic, asleep, or having been observed by a police officer driving.

Other circumstances are less obvious.  Sitting on your car hood or fender.  Sleeping in the back seat.  Again the issue is control.  You do not need to be seen driving by an officer.

What it all comes down to is the issue of driving and control - a fact issue.  A good San Francisco DUI attorney can help to sort through the facts and the law, and fight to throw out the charge.  It's never cut and dried.

Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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Once you've been stopped by a San Francisco police officer for a possible DUI, the officer has already made a decision that he or she has probable cause to stop you.  As you roll down your window to talk to the officer, and the officer smells alcohol on your breath, the likelihood that you can leave at that point is slim.  And then you begin to speak.

The most damaging evidence in a DUI case are the statements you make to the officer.  Admissions of drinking, the amount you've consumed, and other responses to questions the officer is asking you.  A San Francisco DUI attorney is going to try to determine if these damning statements can be suppressed under Miranda.

In a situation where you have been "arrested" the officer must give you your Miranda advisals:  telling you that you have the right to remain silent, seek advice of an attorney, that anything you say can be used against you.  The question becomes "when" you've been arrested.  In a DUI case, the officer most likely has determined you are under the influence based on errative driving, slurred speech, the smell of alcohol, and other usual factors.  Additional questions are asked in an effort to further allow you to incriminate yourself, and have the statements used against you in court.  Without the advisals.

A qualified San Francisco DUI attorney will determine which statements are "spontaneous" and thus allowed into a trial, and those which are solicited after you are technically under arrest.  Those statements can be suppressed because they were made without the Miranda advisal.

Beyond the obvious advice, which is to say nothing other than your name during an arrest, sometimes that advice goes out the window when you are in a panic, or are attempting to get out of a DUI at the road stop.  It doesn't work.  If you remain silent, there are no statements to suppress.  If you talked too much, hire a DUI attorney to get those statements thrown out.



Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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What can you do when you are pulled over for a DUI by the San Francisco Police Department?  Here are some basic things you can do, and have the right to do:

1. If you see the police lights, try to pull over carefully, but not too carefully.  Show you are in command of your vehicle.  Turn on your turn signal.  Slow down and brake gradually. 

2. How do you look?  Is your shirt tucked in, do you look ruffled or disheavaled?  Is your makeup smeared?  Make adjustments accordingly before you roll down the window.

3. Remember that the police officer is noting EVERYTHING you do and say.  The first impression is most important.  In other words, be nice to the officer, be cooperative, and not defensive.

4. Before you go out for the evening, put your car registration and insurance in an easily accessible place in your car.  Make sure you can easily find your driver's license.  It saves you searching your vehicle while you're nervous.

5. You should remember that you do not have to submit to a preliminary breath test.  This test is used by the officer to determine whether to arrest you.  You also do not have to submit to the field sobriety tests.  Will this get you out of an arrest?  Probably not, but these tests are unreliable, and will be used against you.  

6. Other than your name and address, you do not have to talk to the officer about your activities.  Invoke your right to an attorney during any questioning.

A qualified California DUI attorney can help advise you regarding your rights during a stop, and if you have been stopped and subsequently arrested, the DUI attorney can evaluate the circumstances of the stop to determine if anything was done improperly.



Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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If you have been arrested for a DUI in San Francisco or the Bay Area, there is the tendency to simply admit you're guilty, and avoid the costs of hiring a qualified DUI attorney.  In some criminal cases, such as traffic tickets, that may be the case.  In a DUI, it is not, especially in California. 

The DUI arrest itself has already created chaos in your life for you and your loved ones.  Having an experienced attorney on your side will minimize the stress related to a DUI. 

This is especially true when you are looking at your second or third or more DUI charge.  The punishments go up incrementally each time.  Also, if there are extentuating circumstances in your case that could increase the punishment, such as driving under the age of 21, having minor children in the vehicle, or having a high BAC.  You need to hire a qualified DUI lawyer.

If you are in an accident, and someone, even you, have been injured, there are a multiitude of reasons why you need an attorney, not only for the DUI, but also the tangent consequences of the injuries, including a possible civil lawsuit.

The results of a DUI conviction can be costly to you and your loved ones.  You could lose your job if you lose your license.  You could spend time in jail.  You could pay large fines and penalties.  An experienced lower can reduce or minimize these consequences, or get rid of the DUI charge all together.

In other words, i you don’t know what you need to do, or what steps you need to take, hire a DUI attorney.  A qualified San Francisco DUI attorney can walk you through the steps of the entire DUI process at the criminal level and the Department of Motor Vehicles.  The attorney can review the facts of your case and challenge the charge in a trial, or plea bargain a better dea.



Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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You are driving in the Sunset District in San Francisco, California.  You are pulled over, and the officer suspects you are under the influence of alcohol.  You are arrested and taken to the San Francisco Police station for a breathalyzer test.  The breathalyzer estimates the concentration of alcohol in the blood. 

Can you control the breath test?  In other words, can you fool a breathalyzer into showing a lower BAC reading?    The answer is No.

There are a lot of people who believe certain myths regarding a breathalyzer and BAC. For example, sucking on pennies does not lower a BAC reading.  Breath mints?  No.  They only mask the odor of alcohol, they do not change the alcohol content being measured.  Indeed, you don’t have to drink alcohol to get arrested for a DUI, because the human body produces its own supply of alcohol naturally on a continuous basis.  Therefore, we always have alcohol in our bodies and in some cases, some people produce enough to become legally intoxicated.

Are breathalyzers are always accurate?  No, and many errors are made in tests because they lack precision. The police or sheriff department official administering the test can also affect the results of a test.  

So what can you do?  A qualified San Francisco DUI attorney can examine the test procedures, as well as the accuracy of the results.  The attorney can determine if there were errors, or if there are other factors effecting the final read out.  Don't assume the BAC taken at the police station is accurate.  You may not be able to control the results of the breathalyzer, but your attorney can control how those results are used.  In some cases, the results can be voided.



Category: DUI and DWI Laws For California

11/17/2008
Anders Johnson
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A DUI conviction in California carries with it penalties and consequences.  For aliens, a conviction, or even just an arrest, has additional consequences.

One of the eligibility requirements for naturalization is that a person must be of "good moral character" for five years prior to submitting an application.  Generally this means that an alien must show that he or she has not violated any laws or pursued conduct that was inappropriate.

This, of course, includes a DUI conviction.  It may also include a DUI arrest which resulted a plea to a lesser included offense.  An alien can not be on probation at the time a naturalization aplication is filed. 

If an alien has the DUI conviction expunged, or erased, from his or her record, the conviction is still relevant for purposes of immigration.  In other words, it must be revealed to the immigration agency.

A qualified DUI attorney competent in immigration can advise an alien as to the effect of a DUI conviction on a naturalization application, and the options that are available to the alien.



Category: DUI and DWI Laws For California

11/17/2008
Bob Battle- Richmond Area
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In 2005 Virginia Department of Forensic Science (DFS) revealed in a grant request that its evidentiary breath test devices, Intoxilyzer 5000 (68), were “dated, unstable and unreliable.”  DFS went on to say that, “Funding of this request will allow the agency to replace instruments that are 9-10 years old and for which replacement parts are not available.”  West Virginia had begun replacing its dated, unstable, unreliable Intoxilyzers with emergency funding in 2004.

 FOIA requests of internal DFS documents revealed serious problems with Virginia’s Intoxilyzers,

 

The IR source that is currently being sold is having problems with sensitivity and transitioning between motors…The motors are another issue, the current motor will be discontinued as of January 1, 2006.  The “replacement motors” are in short supply…CMI doesn’t want to continue to support the 5000 line since they have 2 generations of instruments produced since that time.

 

 Through FOIA, Harrisonburg Virginia DUI Attorney Bob Keefer found that DFS was using 90 cent cassette player motors instead of the $80.00 to $100.00 motors designated by the manufacturer.  These motors are critical to the accuracy of the testing as erratic motor speeds will cause instability in the electronic signals, which can affect the timing of the device.   

 

Keefer’s research revealed, as might be expected with substandard parts, that the devices were suffering electronic problems.  Electronic problems cause many different issues to occur, depending upon where in the operational sequence the problem occurs.  For example, the calibration can fall out of tolerance.  When this happens test results cannot be considered to be accurate within a reasonable degree of scientific certainty.

 

Despite these problems DFS has always claimed that the Intoxilyzer could not be wrong because it would not let itself make a mistake.  According to DFS these machines have never made a mistake.

 

Despite the problems and the FOIA documents, DFS still claims publically that the now 12 year old machines are not showing any signs of ageing.  DFS, of course, maintains that Virginia does not have to replace the Intoxilyzers.

 

On April 23, 2008, DFS signed a contract to replace the Intoxilyzers with Intoximeters EC/IR II.  The EC/IR II was the cheapest machine considered.   It is about half the price of Intoxilyzer’s 8000.

 

According to DFS, out of 50 states the EC/IR II is used in only four states besides Virginia: West Virginia, Wisconsin, North Carolina and Tennessee.   

 

The EC/IR II was intended to use two analytical methods: EC (electrochemical or fuel cell) and IR (infrared technology).  The plan was that the EC/IR II would insure reliability by checking the fuel cell results against the infrared results.  Agreement between such different analytical methods would insure reliability.  Unfortunately, Intoximeter was unable to coordinate the different analytical methods. For that reason, the device only uses the fuel cell to measure alcohol and determine blood alcohol content.

 

Time will tell whether DFS made a good decision to replace its never wrong Intoxilyzers with the EC/IR II.

 

Bob Keefer practices DUI defense in Harrisonburg, Virginia; Rockingham County, Virginia; Staunton, Virgina; Augusta County, Virginia; Woodstock, Virginia; Shenandoah County, Virginia; Waynesboro, Virginia and other parts of the Shenandoah Valley.  www.BobKeeferLaw.com  



Category: General

11/17/2008
Tom Foster
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Harrisonburg Virginia DUI Lawyer Bob Keefer recently wrote a blog post about a DUI Road Block in Harrisonburg, Virginia conducted by the Harrisonburg Police Department that produced absolutely zero drunk drivers. So, not a single driver was "wasted;" the only thing that was wasted was the taxpayer's money and the time of the sober drivers who were delayed for no reason!

Richmond Virginia DUI Lawyer Bob Battle has previously posted on a history of "sobriety checkpoints."

If you have been arrested for DUI at a sobriety checkpoint, there are many possible defenses based on  the set-up and implementation of the checkpoint. All of the Virginia DUI Lawyers on DUIanswer.com are experienced in investigating and raising these issues and other issues relating to Virginia DUI Laws for you at trial.

 

 



Category: General