Wednesday, April 16, 2008

California DUI attorneys go after bad cops in DUI cases

California DUI Lawyers article

Judge Hands DUI Defendants Tool at DMV

The Recorder - By Matthew Hirsch - April 16, 2008


A DUI arrest can quickly take someone from the driver's seat to the hot seat, and maybe a jail cell. But some defense lawyers say there's not enough scrutiny on the cops when the state moves to suspend a driver's license at the DMV. An Alameda County Superior Court judge's ruling might change that.


Judge Frank Roesch's ruling, issued Monday, says a DUI defendant in a license suspension hearing at the California Department of Motor Vehicles can go ahead and seek police personnel records and citizen complaints. The attorney general's office had argued in a brief that those records should remain confidential. Last year, San Francisco defense attorney Peter Goodman asked a DMV hearing officer to let him review records for a California Highway Patrol officer who had arrested his client, Andrew Brown, on an Oakland freeway. The DMV officer refused based on the state's view that he lacked the authority to entertain the request, which is known as a Pitchess motion. Goodman challenged the decision in superior court.


Deputy Attorney General Jennifer Perkell, in an April 4 opposition to Goodman's petition for a writ of administrative mandamus, argued that only a court of law can review peace officer personnel records. Perkell conceded in her brief that the statute cited by Goodman, Evidence Code §1043, does provide that a Pitchess motion may be filed with an "administrative body." But she said most of the statute's wording refers exclusively to "courts," not administrative tribunals. And, "even if this court concludes, based on [a] single reference to an 'administrative body,' that a Pitchess motion can be filed with and entertained by certain types of administrative tribunals, a DMV administrative hearing is not the type of tribunal contemplated by this provision," Perkell wrote.


"In DMV administrative matters," Perkell continued, "the presiding authority is a mere hearing officer who is an employee of the DMV and is not a licensed attorney. This person has no legal training or expertise. And, unlike a criminal-court judge, the hearing officer is also not in the business of reviewing confidential peace-officer records for relevance to a defense to a criminal charge; instead the hearing officer's duties are to apply loose evidentiary standards to evidence relating to the ability of the driver to safely operate a motor vehicle." Roesch was not as troubled by the DMV officers' lack of legal training.


"While DMV hearing officers are not administrative law judges, they are capable of determining whether an officer's file contains relevant and discoverable information after taking into consideration the competing interests at stake," he wrote in a two-page order. The attorney general's office did not appear in court Monday to present oral argument before Roesch entered judgment in the case. Spokesman Gareth Lacy said the attorney general's office would recommend an appeal to a higher court. "We didn't oppose the tentative ruling because we want this heard in an appellate court," he said.


Joshua Dale, executive director of the California DUI Lawyers Association, said DUI tests in California can be subjective, and oftentimes disputes boil down to the police officer's recollection measured against the driver's account. And unlike in many other U.S. states, the police in California don't videotape themselves giving field sobriety tests and making DUI arrests, Dale said.


"We don't have these other tools and so getting Pitchess through DMV would be very helpful. It's all about trying to determine the truth," said Dale, a San Francisco solo who has practiced DUI law since 1994. Dale admits that many people arrested on a DUI "are just guilty." (Ed Note – What’s that Josh?) But he said that of about 180,000 people cited each year for driving under the influence, "probably about a third" have issues to be resolved by a lawyer.


Still, few defense lawyers ask DMV hearing officers to review police records, Dale said: "I think they're forced to go through the criminal court to get [them] instead." A solo attorney who's had a private practice since 1980, Goodman said this is the first time he has asked for police records in a DMV case. "Frankly, this was the first case where it came to mind that a Pitchess motion was an appropriate vehicle for finding out what kind of history the officer had." Goodman said the DA's office did not file criminal charges against Brown, but the longtime pediatrician was facing a one-year license suspension. Goodman also said many clients can't afford to aggressively litigate a DMV case. He said he generally charges $5,000 to handle a writ petition in superior court.


According to Brown's court papers, he had consumed two Grey Goose Vodka-and-cranberry cocktails with dinner after work, then went to an Oakland sports bar and drank almost two large cups of beer before leaving for home shortly before midnight. He was pulled over by a California Highway Patrol officer where Interstate 580 connects with Highway 24. But in testimony at the DMV, Brown's recollections differed from those of CHP Officer J.P. Desmarais. For example, Desmarais testified that he asked Brown if he had any physical impairments, and that Brown said no. Brown said he told Desmarais that he suffered from five separate medical conditions.
In breath tests, Brown registered blood alcohol levels ranging from .08 to .09 percent, according to his own court papers. The legal limit in California is .08 percent.