Friday, January 29, 2010

California DUI Specialist Rick Mueller is a

Superb

DUI Attorney

California DUI Specialist Rick Mueller is a

Top-rated

Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience.
Complete the important Free San Diego County Drunk Driving Defense Survey

at this online DUI consultation site

to find out your best strategy and to protect your driving privileges in California.
Known as a "DMV Guru," Rick Mueller devotes all of time to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone.
On August 1, 2009, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. San Diego California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

. The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent.




Video of San Diego DUI / DMV Attorney



San Diego DUI Blog

Wednesday, January 27, 2010

DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI

Complete San Diego DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI. Simply complete

Free Survey

for your best San Diego DUI defense attorney strategy and to vigorously protect your important driving privilege. Hassle-free San Diego DUI help for San Diego DUI court and San Diego DMV. Help to save your license.


San Diego DUI Attorney Rick Mueller is a Top-Rated San Diego Drunk Driving Lawyer, San Diego DUI & DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence.


Contact a San Diego California DUI Criminal Defense Lawyer soon.

Sunday, January 24, 2010

To properly defend your California DUI case and give you the best chance to get back to your life, it is important to seek San Diego DUI lawyer

In order to properly defend your California DUI case and give you the best chance to get back to your life, it is important to seek San Diego DUI legal representation immediately. Top California drunk driving legal representation will ensure any necessary bail posting as soon as possible to reduce initial San Diego jail time. The best San Diego DUI defense attorney will investigate all San Diego drunk driving arrests to ensure that the client’s legal rights were preserved and the San Diego county police officer following proper San Diego procedure.




Easy California DUI Evaluation

at this online DUI consultation opportunity.

Friday, January 22, 2010

15 Years in Prison for Camp Pendleton California Marine sentenced for DUI doctor death & spousal injuries

A Camp Pendleton United States Marine Corp Lance Cpl. was sentenced today to 15 years to life in prison for killing a physician and seriously hurting his wife in a California DUI crash in Newport Beach nearly two years ago.

Elijah Leigh Ferguson, 22, of Santa Ana, apologized to the family of Dr. Michael Sein, who died in the Feb. 22, 2008, crash, and his widow, Grace, who still suffers headaches and other pain from the accident.

"I'm sorry for what I did and for what I did not do," Ferguson said, referring to his failure to keep to his plan to sleep off his inebriation at Camp Pendleton before going home to his wife, Carla, and then-newborn son, Kenneth.

The Sein family had sought the maximum 21-year term for Ferguson while California DUI defense attorney Stephen Womack pushed for probation, saying it would allow his his client to receive treatment for post-traumatic stress disorder at a San Diego facility run by a veteran.

Superior Court Judge Ronald Bauer went with the lesser sentence recommended by Deputy District Attorney Susan Price for Ferguson, who was convicted Dec. 9 of second-degree murder and DUI driving charges.

Womack argued during the trial that Ferguson should not be convicted of murder because he developed PTSD after serving in Iraq.

Ferguson got drunk playing drinking games after a day of work at the Marine base in northern San Diego County and had planned to sleep it off but got into an argument with his wife, who had threatened to divorce him, according to testimony.

His buddies had taken his keys to prevent him from driving home to Orange County, but about 11 p.m., he convinced a private to drive him home. When they got to the car, though, Ferguson pulled rank and bullied the other Marine into turning over the keys.

He got lost on the way home and was speeding east on MacArthur Boulevard at 74 mph when his Dodge Cavalier slammed into the back of the victim's Aston Martin at Jamboree Road.

"Mr. Ferguson not only killed my husband, but he also killed me," Grace Sein told the judge.

She said she is now "terrified" to get into a car, either as a driver or passenger, dreads the end of the work day when her husband would usually come home, and cannot enjoy the singing and dancing they used to do with friends.

"Since that night, I suffer physical, emotional and mental pain," she said. "The pain is almost unbearable."

The physician's sons, Alfred and Patrick, and his daughter, Christina, also tearfully told the judge how much they miss their father.

Ferguson's parents apologized to the Sein family and asked the judge for mercy. Their son grew up on a farm in northern California, where they tried to raise him to help and serve others, they said.

"I don't understand what happened in Iraq. He wouldn't talk to us about that, but when he came back, he wasn't the same Elijah I raised," Kimberly Ferguson said.

Price said she recommended the lower-end sentence for the defendant --who will be eligible for parole in 13 years -- because he had no criminal history. But she noted in court that Ferguson has had some minor infractions while in the Orange County Jail, and was involved in a serious altercation with a fellow inmate after he was convicted.

Thursday, January 21, 2010

California DUI Lawyer information provided by a top San Diego California Drunk Driving Attorney for those accused of a San Diego California DUI

California DUI Lawyer information provided by a top San Diego California Drunk Driving Attorney for those accused of a San Diego California DUI. Problem-free San Diego California DUI help for San Diego California DUI court and San Diego California DMV. Complete San Diego California DUI Help to save your California license or other state license. San Diego DUI Attorney Rick Mueller is a Premier San Diego California Drunk Driving Lawyer, San Diego California DUI & San Diego California DMV Defense Attorney with over 25 years of experience. Known as the San Diego California DUI - DMV Guru, San Diego California DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego DUI.

On August 1, 2009, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. San Diego California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

. The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent.



Complete the important Free San Diego County Drunk Driving Defense Survey

at this online DUI consultation site

to find out your best defense.

Tuesday, January 19, 2010

Do not miss the 10 day deadline after a DUI arrest in Califonria!

Searching in California for a DUI Lawyer? On August 1, 2009, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. San Diego California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

. The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent.


The San Diego DUI / DMV hearing for a possible license suspension is like a mini-DUI trial without a jury, but with much different San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.



The San Diego Driver Safety Officer offers evidence in the form of documents and/or witnesses. The Driver Safety Officer offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." With no Fifth Amendment right at the hearing, your San Diego DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear.


The San Diego DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing. A San Diego DMV / DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.



A San Diego DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension.



Because of the peculiar nature of San Diego DUI / DMV hearings and the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable.



Your San Diego DUI / DMV attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline is up. <

Sunday, January 17, 2010

Birth of the Breathalyzer - discovery of drunkometer

For Roy and Neva Gordon, 10 August1937 was a bad day. Six days earlier, they had been in a three-car pile-up in Marion county, Indiana. Now they were in court. Neva faced charges of being drunk, Roy of drunk driving. The couple had picked the wrongtime and the wrong state to have one too many. The state police were in the middle of a road-safety campaign. And on that particular summer day, they unleashed their latest weapon in the war on drink-driving: the drunkometer. The Gordons were arrested and charged on the say-so of a brightly coloured balloon and a box of bottles and tubes. For Rolla Harger, a quiet professor at Indiana University medical school, it was a good day. After years of experiment, his device was about to face the ultimate test. If it passed, the roads would soon be safer.

IN 1920, the US gave up drink. After a long crusade by the temperance movement, alcohol was outlawed. Americans had always been enthusiastic drinkers. According to the Anti-Saloon League, at the end of the 19th century there was one saloon for every 150 Americans - including those who didn't drink. The league argued that alcohol was responsible for the moral decline of American society, and that prohibition was the way to stop it.

For a few years it worked. Alcohol consumption fell to a third of its former level. Whether society benefited is arguable, but the ban did help to put the brakes on the appearance of a new phenomenon: the drunk driver. Prohibition coincided with the first big boom in car sales. By the late 1920s, however, alcohol consumption was beginning to pick up and the number of road accidents was rising. When it became obvious that prohibition would be overturned, the police braced themselves for a big increase in drunk drivers.

One of their problems was the difficulty of getting convictions. Suspects might look drunk; they might smell of alcohol; but proving they were too intoxicated to drive was tricky. There were sobriety tests. Police could ask a suspect to walk a white line, stand on one leg or put finger to nose, but the results were hardly scientific. What the police needed was a chemical test that measured how much alcohol a suspect had consumed - a measure that would persuade a judge, leave defence lawyers no room for argument, and deter drivers from drinking.

The obvious solution was to measure how much alcohol drivers had in their blood. Physiologists had established that the concentration of alcohol in blood was a good reflection of how much was in the brain, and the amount in the brain was a good measure of intoxication. But to measure blood alcohol, the police needed both a doctor and the suspect's cooperation. "It's often very hard to get a blood sample from someone who's intoxicated. They might want to sing. They might want to dance with you or play. Or they might be belligerent," says James Klaunig, director of toxicology at Indiana University and recently retired as Indiana's state toxicologist.

Urine wasn't much easier. Persuading a suspect to pee into a bottle at the side of the road was impractical, and the drunker they were the harder it was. Even if the police succeeded, the test was less reliable than a blood test. And with either, it could be hours before the police could get a sample, by which time the alcohol content might have fallen. Then it could take days to get the results back from the lab.

The police needed a test they could do themselves, something portable that would give almost instant results. Rolla Harger, a biochemist at Indiana University medical school, decided the answer was a breath test. Earlier research had shown that there was a fixed ratio between the concentration of alcohol in the blood in the lining of the lung and the concentration in the air above it. Harger found the ratio was 2000 to 1: the amount of alcohol in 2 litres of air from deep in the lungs was equal to the amount in 1 millilitre of blood.

Harger developed his first breath tester in 1931, two years before prohibition ended. It was just about portable, fitting into a box the size of a small suitcase. It looked like a chemistry set, but apart from some messy mixing of chemicals it was simple to use and gave rapid results. The suspect blew into a rubber balloon, which was then attached to a tube of purple liquid - a weak solution of potassium permanganate in sulphuric acid - and the air allowed to bubble through it. If there was alcohol on the driver's breath, it reacted with the solution and began to bleach the colour. When the liquid was a faint yellowish brown, the reaction was complete and the test stopped. A fixed amount of solution absorbed a fixed amount of alcohol - so all that was needed to calculate the amount of alcohol in the blood was a measure of how much breath had passed through the solution before it changed colour. This could be gauged from what was left in the balloon, or measured by connecting the apparatus to a gas meter.

Harger deliberately made the device as simple as possible so that judges and juries would understand how it worked and police officers could easily be trained to perform the tests. He also made it immune to most of the tricks defence lawyers might try. Experiments showed that there was no illness that affected the result, and nothing anyone might eat - garlic, cloves, strong onions - would make any difference to the drunkometer. And it had another advantage. The dramatic colour change was often enough to make people admit how much they had drunk.

Test-driving the drunkometer, Harger went out on the road with the police, randomly stopping drivers and asking them to blow into a balloon. The drunkometer worked well, but the results were disturbing. "It showed that the percentage of people who had been drinking was much higher than expected," says Klaunig.


After a series of such trials, the Indiana police adopted the drunkometer as the centrepiece of their road-safety campaign in 1937. Roy and Neva Gordon were the first Americans arrested after failing a breath test. According to the police, they had crashed head-on with another car while overtaking, rebounding to hit the car they had been trying to pass. Suspecting the Gordons of drinking, the police took them to the nearest police station, and within the hour had them blowing into a drunkometer.

In court the following week, Roy Gordon claimed he had drunk a glass of wine and three beers. His wife said she'd had two beers. Harger appeared as an expert witness: he demonstrated how the drunkometer worked then explained the results. "Gordon had the alcoholic content of about 10 ounces of whiskey," he told the judge. "That's about seven shots of 80-proof whiskey or seven glasses of wine," says Klaunig.

In a valiant attempt to get his clients off, the Gordons' lawyer demanded to be tested. Harger handed him a red balloon. He blew into it, but not hard enough. He blew again. The balloon burst. Harger tried again with a blue balloon. This time, he succeeded in attaching the breath-filled balloon to the drunkometer and began to release the air into the purple liquid. The purple remained stubbornly purple.

"If a man drank three shots of French cognac and a bottle of beer at 12 o'clock today, wouldn't that show?" demanded the lawyer. He had, he declared triumphantly, drunk exactly that before coming to court. In fact, the drunkometer was not sensitive enough to pick up that quantity of alcohol. So all the lawyer had done was prove his clients had drunk more than he had, and both were convicted of being drunk. But the drink-driving charge was thrown out: none of the witnesses could be certain which of the pair had been at the wheel.

The invention of the drunkometer meant it was now possible to lay down laws ruling how much alcohol drivers could have in their blood before they were over the limit. In January 1939, Indiana became the first US state to pass a law specifying what it meant to be drunk. Below 50 milligrams per 100 millilitres of blood was legal. Up to 150 mg was a grey zone: some people might be able to drink that much and drive safely but others couldn't, so the court needed supporting evidence to convict. Over 150 mg and there was no doubt you were too drunk to drive, and a drunkometer reading was enough to get a conviction.

Other states followed suit, and police forces across the US acquired drunkometers. They stayed in use until 1954, when Robert Borkenstein, once a trooper in the Indiana state police, invented a device that gave an instant result at the roadside: the Breathalyzer.

Saturday, January 16, 2010

California DUI Criminal Defense Attorney Rick Mueller specializes in California DUI and DMV law

Superb-rated

California DUI Criminal Defense Attorney Rick Mueller specializes in California DUI and DMV law. California DUI Lawyer Specialist Rick Mueller is the only DMV - DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several
years. At an 8th seminar, on August 1, 2009, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. At a 9th seminar, San Diego California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

. The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent.


San Diego DUI Lawyer Rick Mueller is known as the "DMV Guru".



Specially recognized as a Contributor to the California Drunk Driving Law book, he is now the San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's bible for DUI defense, the book features some of San Diego DUI attorney Rick Mueller's hard work.



San Diego drunk driving lawyer Rick Mueller is a Specialist Member of the California DUI Attorneys Association (formerly the Association of California Deuce Defenders). He is also a member of the National College for DUI Defense and the National Association of Criminal Defense Lawyers. Since 1983, DUI Lawyer Rick Mueller has actively defended these cases. San Diego DUI Attorney Rick Mueller is in Good Standing with the State Bar (#114305).



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San Diego Drunk Driving Criminal Defense Attorney Blog

Wednesday, January 13, 2010

DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI

DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI. Problem-free San Diego DUI help for San Diego DUI court and San Diego DMV. Help to save your license.



San Diego DUI Attorney Rick Mueller is a Top-Rated San Diego Drunk Driving Lawyer, San Diego DUI & DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence.

Rick recently lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. San Diego California Criminal Defense Attorney Rick Mueller also spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

.

Complete

Free Survey

for your best San Diego DUI defense approach.

Sunday, January 10, 2010

Newsflash! Outstanding California DUI attorney available to defend your San Diego DMV & drunk driving case

Newsflash! Outstanding California DUI attorney available to defend your San Diego drunk driving case. A

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San Diego DUI criminal defense attorney will provide the most thorough investigation and professional handling of your case from start to finish. With a goal to protect your legal rights and reduce penalties to the minimum,and give you the best chance to get back to your life. The best San Diego DUI defense attorney will investigate all San Diego drunk driving arrests to ensure that the client’s legal rights were preserved and the San Diego county police officer following proper San Diego procedure. A first San Diego DUI / drunk driving offense is the best opportunity for your San Diego DUI defense lawyer to vigorously defend and to request a reduced San Diego DUI sentencing.



A premier San Diego DUI attorney will be one with over 25 years of experience and expertise in San Diego California drunk driving cases. Excellent San Diego court outcomes and satisfied clients will also be illustrative of the talent of your San Diego DUI / drunk driving criminal attorney.



On August 1, 2009, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. San Diego California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

.
San Diego DUI law firms provide free initial consultation to learn more about your case. To find the best San Diego DUI criminal defense lawyer, visit

the most informative DUI website

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Thursday, January 7, 2010

California DUI Lawyer information provided by a Superb-rated San Diego California Drunk Driving Attorney for those accused

California DUI Lawyer information provided by a Superb-rated San Diego California Drunk Driving Attorney for those accused of a San Diego California DUI. Headache-free San Diego California DUI help for San Diego California DUI court and San Diego California DMV. Complete California DUI Help to save your California license or other state license. DUI Attorney Rick Mueller is a Premier San Diego California Drunk Driving Lawyer, San Diego California DUI & San Diego California DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego California DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence.

On August 1, 2009, Rick lectured at the

Annual DUI Seminar

in connection with the American Bar Association at Loyola Law School in Los Angeles. San Diego California Criminal Defense Attorney Rick Mueller spoke at the prestigious California Attorneys For Criminal Justice

A Day in the Desert with the DUI Experts - Annual DUI seminar

. The California criminal defense lawyers who attended indicated to the President of the California DUI Lawyers Association that San Diego California DUI criminal defense lawyer Rick Mueller's presentation and materials were excellent.



Complete the important Free San Diego County Drunk Driving Defense Survey

at this online DUI consultation site

to find out your best defense.

Tuesday, January 5, 2010

Taser by Cop for Seatbelt ticket! Bad Cop, No Dunut. Federal Court says wrong!

A federal court last week handed down guidelines that limit the ability of police to use tasers at will. The Ninth Circuit Court of Appeals made its decision in response to a 2005 incident where Coronado Police Officer Brian McPherson tasered and injured motorist Carl Bryan, then 21, over a minor seatbelt infraction. The court described in detail how Bryan had spent the morning driving 180 miles from Camarillo to Coronado only to be stopped by the highway patrol for allegedly speeding on the 405 Freeway. Bryan, upset by being hit with an expensive ticket, forgot to buckle his seatbelt before continuing on his journey.

When Bryan reached the Coronado bridge at 7:30, Officer McPherson was waiting with a "Click it or Ticket" trap designed to collect $84 seatbelt violation tickets. Bryan knew he was about to get a second citation in the space of a few hours and grew upset with himself. He pulled over and turned down his radio in compliance with McPherson's orders, but Bryan began swearing at himself as he stepped out of his car and stood next to the door.

McPherson claimed he felt "threatened" by Bryan, who stood in his boxer shorts looking away from McPherson some distance away. Without warning, McPherson shot Bryan with his 1200-volt taser. Bryan fell face first into the ground, shattering four of his front teeth. In addition to his injuries, Bryan was hit with charges for "resisting arrest" and "opposing an officer in the performance of his duties." Bryan sued McPherson and the police department, claiming his rights were violated by the use of excessive force.

Prosecutors were unable to convince a jury to convict Bryan of the crime often known as "contempt of cop," and a district court judge found that the use of the taser was unlawful. On appeal, a three-judge panel of the Ninth Circuit agreed that McPherson should not be immune to the lawsuit because his actions were objectively unreasonable.

"An unarmed, stationary individual, facing away from an officer at a distance of fifteen to twenty-five feet is far from an 'immediate threat' to that officer," Judge Kim Wardlaw wrote for the court. "Bryan never addressed, let alone argued with, Officer McPherson once he left his car."

The court held that even though the X26 model taser used is portrayed as a "non-lethal" tool for police, the device has been known to cause death and significant injury. For that reason, its use must be limited to cases where it is absolutely necessary.

"We hold only that the X26 and similar devices constitute an intermediate, significant level of force that must be justified by a strong government interest that compels the employment of such force," Wardlaw wrote.

The court noted that there was nowhere for Bryan to hide a weapon and that he never made a verbal or physical threat toward McPherson. The court found reason to question the veracity of McPherson's testimony that Bryan "came toward him" in a threatening manner and that he believed Bryan was involved in "serious and dangerous criminal activity."

"The physical evidence demonstrates that Bryan was not even facing Officer McPherson when he was shot: One of the taser probes lodged in the side of Bryan's arm, rather than in his chest, and the location of the blood on the pavement indicates that he fell away from the officer, rather than towards him," Wardlaw wrote. "It is undisputed that Bryan's initial 'crime' was a mere traffic infraction -- failing to wear a seatbelt -- punishable by a fine. Traffic violations generally will not support the use of a significant level of force... None of the offenses for which Bryan was cited or of which he was suspected is inherently dangerous or violent."

Having decided against McPherson, the court remanded the case to the district court to continue proceedings on the federal Section 1983 lawsuit against the cop.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARL BRYAN, ü
Plaintiff-Appellee, No. 08-55622
v. D.C. No.
BRIAN MCPHERSON; CORONADO ý 3:06-CV-01487-
POLICE DEPARTMENT; CITY OF LAB-CAB
CORONADO, a municipal OPINION corporation,
Defendants-Appellants. þ
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
October 9, 2009—Pasadena, California
Filed December 28, 2009
Before: Harry Pregerson, Stephen Reinhardt and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw
16731
COUNSEL
Steven E. Boemer, David Stotland, Carrie L. Mitchell of
McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon,
California, for the appellant.
Eugene G. Iredale, Julia Yoo of Law Offices of Eugene G.
Iredale, San Diego, California, for the appellee.
OPINION
WARDLAW, Circuit Judge:
Early one morning in the summer of 2005, Officer Brian
McPherson deployed his taser against Carl Bryan during a
traffic stop for a seatbelt infraction. Bryan filed this action
under 42 U.S.C. § 1983, asserting excessive force in violation
of the Fourth Amendment. Officer McPherson appeals the
denial of his motion for summary judgment based on qualified
immunity. We affirm the district court because, viewing
the circumstances in the light most favorable to Bryan, Officer
McPherson’s use of the taser was unconstitutionally
excessive and a violation of Bryan’s clearly established rights.
I. FACTUAL AND PROCEDURAL BACKGROUND
Carl Bryan’s California Sunday was off to a bad start. The
twenty-one year old, having stayed the night with his younger
brother and some cousins in Camarillo, which is in Ventura
BRYAN v. MCPHERSON 16735
County, planned to drive his brother back to his parents’
home in Coronado, which is in San Diego County. However,
Bryan’s cousin’s girlfriend had accidently taken Bryan’s keys
to Los Angeles the previous day. Wearing the t-shirt and
boxer shorts in which he had slept, Bryan rose early, traveled
east with his cousins to Los Angeles, picked up his keys and
returned to Camarillo to get his car and brother. He then
began driving south towards his parents’ home. While traveling
on the 405 highway, Bryan and his brother were stopped
by a California Highway Patrolman who issued Bryan a
speeding ticket. This upset him greatly. He began crying and
moping, ultimately removing his t-shirt to wipe his face. Continuing
south without further incident, the two finally crossed
the Coronado Bridge at about seven-thirty in the morning.
At that point, an already bad morning for Bryan took a turn
for the worse. Bryan was stopped at an intersection when
Officer McPherson, who was stationed there to enforce seatbelt
regulations, stepped in front of his car and signaled to
Bryan that he was not to proceed. Bryan immediately realized
that he had mistakenly failed to buckle his seatbelt after his
earlier encounter with the police. Officer McPherson
approached the passenger window and asked Bryan whether
he knew why he had been stopped. Bryan, knowing full well
why and becoming increasingly angry at himself, simply
stared straight ahead. Officer McPherson requested that Bryan
turn down his radio and pull over to the curb. Bryan complied
with both requests, but as he pulled his car to the curb, angry
with himself over the prospects of another citation, he hit his
steering wheel and yelled expletives to himself. Having pulled
his car over and placed it in park, Bryan stepped out of his
car.
There is no dispute that Bryan was agitated, standing outside
his car, yelling gibberish and hitting his thighs, clad only
in his boxer shorts and tennis shoes. It is also undisputed that
Bryan did not verbally threaten Officer McPherson and,
according to Officer McPherson, was standing twenty to
16736 BRYAN v. MCPHERSON
twenty-five feet away and not attempting to flee. Officer
McPherson testified that he told Bryan to remain in the car,
while Bryan testified that he did not hear Officer McPherson
tell him to do so. The one material dispute concerns whether
Bryan made any movement toward the officer. Officer
McPherson testified that Bryan took “one step” toward him,
but Bryan says he did not take any step, and the physical evidence
indicates that Bryan was actually facing away from
Officer McPherson. Without giving any warning, Officer
McPherson shot Bryan with his taser gun. One of the taser
probes embedded in the side of Bryan’s upper left arm. The
electrical current immobilized him whereupon he fell face
first into the ground, fracturing four teeth and suffering facial
contusions. Bryan’s morning ended with his arrest1 and yet
another drive—this time by ambulance and to a hospital for
treatment.
Bryan sued Officer McPherson and the Coronado Police
Department, its police chief, and the City of Coronado for
excessive force in violation of 42 U.S.C. § 1983, assault and
battery, intentional infliction of emotional distress, a violation
of California Civil Code § 52.1, as well as failure to train and
related causes of action. On summary judgment, the district
court granted relief to the City of Coronado and Coronado
Police Department, but determined that Officer McPherson
was not entitled to qualified immunity at this stage of the proceedings.
The court concluded that a reasonable jury could
find that Bryan “presented no immediate danger to [Officer
McPherson] and no use of force was necessary.” In particular,
it found that a reasonable jury could find that Bryan was
located between fifteen to twenty-five feet from Officer
McPherson and was not facing him or advancing toward him.
The court also found that a reasonable officer would have
1Bryan was charged with resisting and opposing an officer in the performance
of his duties in violation of California Penal Code § 148. Bryan
was tried on this violation, but following a hung jury, the state dismissed
the charges.
BRYAN v. MCPHERSON 16737
known that the use of the taser would cause pain and, as
Bryan was standing on asphalt, that a resulting fall could
cause injury. Under the circumstances, the district court concluded
it would have been clear to a reasonable officer that
shooting Bryan with the taser was unlawful.
II. STANDARD OF REVIEW
The district court’s denial of qualified immunity is
reviewed de novo. Blanford v. Sacramento County, 406 F.3d
1110, 1114 (9th Cir. 2005). Where disputed issues of material
fact exist, we assume the version of the material facts asserted
by the non-moving party. See KRL v. Estate of Moore, 512
F.3d 1184, 1188-89 (9th Cir. 2008). All reasonable inferences
must be drawn in favor of the non-moving party. John v. City
of El Monte, 515 F.3d 936, 941 (9th Cir. 2008).
III. DISCUSSION
[1] In evaluating the denial of a police officer’s assertion of
qualified immunity, we ask two distinct questions. First, we
must determine whether, taking the facts in the light most
favorable to the non-moving party, the officer’s conduct violated
a constitutional right; and second, if a violation
occurred, whether the right was “clearly established in light
of the specific context of the case.” al-Kidd v. Ashcroft, 580
F.3d 949, 964 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S.
194, 201 (2001)). We may “exercise [our] sound discretion in
deciding which of the two prongs of the qualified immunity
analysis should be addressed first.” Pearson v. Callahan, 129
S. Ct. 808, 818 (2009). Where we affirm the district court’s
denial of summary judgment, however, we must address both
questions.
A. Did Officer McPherson Employ Constitutionally
Excessive Force?
[2] Allegations of excessive force are examined under the
Fourth Amendment’s prohibition on unreasonable seizures.
16738 BRYAN v. MCPHERSON
Graham v. Connor, 490 U.S. 386, 394 (1989); Deorle v. Rutherford,
272 F.3d 1272, 1279 (9th Cir. 2001). We ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting them.” Graham, 490 U.S.
at 397. We must balance “ ‘the nature and quality of the intrusion
on the individual’s Fourth Amendment interests’ against
the countervailing governmental interests at stake.” Id. at 396
(quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)); see also
Scott v. Harris, 550 U.S. 372, 383 (2007). Stated another way,
we must “balance the amount of force applied against the
need for that force.” Meredith v. Erath, 342 F.3d 1057, 1061
(9th Cir. 2003).
1. Nature and Quality of the Intrusion
We begin by analyzing the quantum of force—the type and
amount of force—that Officer McPherson used against Bryan.2
See Deorle, 272 F.3d at 1279; Chew v. Gates, 27 F.3d 1432,
1440 (9th Cir. 1994). Officer McPherson shot Bryan with a
Taser X26 provided by the Coronado Police Department. The
X26 uses compressed nitrogen to propel a pair of “probes”—
aluminum darts tipped with stainless steel barbs connected to
the X26 by insulated wires—toward the target at a rate of
over 160 feet per second. Upon striking a person,3 the X26
delivers a 1200 volt, low ampere electrical charge through the
wires and probes and into his muscles.4 The impact is as pow-
2Although the taser used by Officer McPherson was the X26 model, our
holding applies to the use of all controlled electric devices that cause similar
physiological effects.
3According to the manufacturer, the probes do not need to penetrate the
skin of the intended target to result in a successful connection. The probes
are capable of delivering their electrical charge through up to two inches
of clothing. Here, Bryan was shirtless when confronted by Officer
McPherson. As a result, one probe penetrated his skin.
4Tasers have been described as delivering a 50,000 volt charge. See,
e.g., Brown v. City of Golden Valley, 574 F.3d 491, 495 n.3 (8th Cir.
2009). While technically accurate, this does not entirely describe the elec-
BRYAN v. MCPHERSON 16739
erful as it is swift. The electrical impulse instantly overrides
the victim’s central nervous system, paralyzing the muscles
throughout the body, rendering the target limp and helpless.
See Draper v. Reynolds, 369 F.3d 1270, 1273 n.3 (11th Cir.
2004); Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993).
The tasered person also experiences an excruciating pain that
radiates throughout the body. See Lewis v. Downey, 581 F.3d
467, 475 (7th Cir. 2009) (“[O]ne need not have personally
endured a taser jolt to know the pain that must accompany it
. . . .”); Hickey, 12 F.3d at 757.
[3] Bryan vividly testified to experiencing both paralysis
and intense pain throughout his body when he was tasered. In
addition, Officer McPherson’s use of the X26 physically
injured Bryan. As a result of the taser, Bryan lost muscular
control and fell, uncontrolled, face first into the pavement.
This fall shattered four of his front teeth and caused facial
abrasions and swelling. Additionally, a barbed probe lodged
in his flesh, requiring hospitalization so that a doctor could
remove the probe with a scalpel. A reasonable police officer
with Officer McPherson’s training on the X26 would have
foreseen these physical injuries when confronting a shirtless
individual standing on asphalt. We have held that force can be
unreasonable even without physical blows or injuries. See,
e.g., Headwaters Forest Def. v. County of Humboldt, 240 F.3d
1185, 1199 (9th Cir. 2000), vacated and remanded on other
grounds 534 U.S. 801 (2001);5 Tekle v. United States, 511
trical impulse encountered by a taser victim. According to the manufacturer,
this 50,000 volt charge is needed to ensure that the electrical current
can “jump” through the air or victim’s clothing, thus completing a circuit.
The manufacturer maintains, however, that the full 50,000 volts do not
enter the victim’s body; rather, it represents that the X26 delivers a peak
voltage of 1,200 volts into the body.
5On remand from the Supreme Court in light of its then-recent opinion
in Saucier, the Headwaters panel reaffirmed its earlier excessive force
analysis. See Headwaters Forest Def. v. County of Humboldt, 276 F.3d
1125 (9th Cir. 2002).
16740 BRYAN v. MCPHERSON
F.3d 839, 845 (9th Cir. 2007). The presence of non-minor
physical injuries like those suffered by Bryan, however, is
certainly relevant in evaluating the degree of the Fourth
Amendment intrusion.
[4] We, along with our sister circuits, have held that tasers
and stun guns fall into the category of non-lethal force.6 See,
e.g., Lewis, 581 F.3d at 476; United States v. Fore, 507 F.3d
412, 413 (6th Cir. 2007); San Jose Charter of Hells Angels
Motorcycle Club v. City of San Jose, 402 F.3d 962, 969 n.8
(9th Cir. 2005).7 Non-lethal, however, is not synonymous with
non-excessive; all force—lethal and non-lethal—must be justified
by the need for the specific level of force employed.
Graham, 490 U.S. at 395; see also Deorle, 272 F.3d at 1285
(“Less than deadly force, like deadly force, may not be used
without sufficient reason; rather, it is subject to the Graham
balancing test.”). Nor is “non-lethal” a monolithic category of
force. A blast of pepper spray and blows from a baton are not
necessarily constitutionally equivalent levels of force simply
because both are classified as non-lethal. Rather than relying
on broad characterizations, we must evaluate the nature of the
specific force employed in a specific factual situation. See
Chew, 27 F.3d at 1441 (stating that the Graham factors “are
not to be considered in a vacuum but only in relation to the
amount of force used to effect a particular seizure.”).
The physiological effects, the high levels of pain, and foreseeable
risk of physical injury lead us to conclude that the
X26 and similar devices are a greater intrusion than other
non-lethal methods of force we have confronted. In Headwa-
6“Lethal force” is force that creates a substantial risk of death or serious
bodily injury. See Smith v. City of Hemet, 394 F.3d 689, 705-07 (9th Cir.
2005) (en banc).
7We recognize, however, that like any generally non-lethal force, the
taser is capable of being employed in a manner to cause the victim’s death.
See, e.g., Oliver v. Fiorino, ___ F.3d ___, 2009 WL 3417869, at *6 (11th
Cir. October 26, 2009).
BRYAN v. MCPHERSON 16741
ters, we held that a jury could conclude that pepper spray was
more than a “minimal intrusion” as it caused “intense pain
. . . , an involuntary closing of the eyes, a gagging reflex, and
temporary paralysis of the larynx.” 240 F.3d at 1200. We
rejected the district court’s characterization of pepper spray’s
intrusiveness as “merely the infliction of transient pain without
significant risk of physical injury.” Id. at 1199. We similarly
reject any contention that, because the taser results only
in the “temporary” infliction of pain, it constitutes a nonintrusive
level of force. The pain is intense, is felt throughout
the body, and is administered by effectively commandeering
the victim’s muscles and nerves. Beyond the experience of
pain, tasers result in “immobilization, disorientation, loss of
balance, and weakness,” even after the electrical current has
ended. Matta-Ballesteros v. Henman, 896 F.2d 255, 256 n.2
(7th Cir. 1990); see also Beaver v. City of Federal Way, 507
F. Supp. 2d 1137, 1144 (W.D. Wash. 2007) (“[A]fter being
tased, a suspect may be dazed, disoriented, and experience
vertigo.”). Moreover, tasering a person may result in serious
injuries when intense pain and loss of muscle control cause a
sudden and uncontrolled fall.
[5] The X26 thus intrudes upon the victim’s physiological
functions and physical integrity in a way that other non-lethal
uses of force do not. While pepper spray causes an intense
pain and acts upon the target’s physiology, the effects of the
X26 are not limited to the target’s eyes or respiratory system.
Unlike the police “nonchakus” we evaluated in Forrester v.
City of San Diego, 25 F.3d 804 (9th Cir. 1994), the pain delivered
by the X26 is far more intense and is not localized, external,
gradual, or within the victim’s control. Id at 807, 805 n.5.
In light of these facts, we agree with the Fourth and Eighth
Circuit’s characterization of a taser shot as a “painful and
frightening blow.” Orem v. Rephann, 523 F.3d 442, 448 (4th
Cir. 2008) (quoting Hickey, 12 F.3d at 757). We therefore
conclude that tasers like the X26 constitute an “intermediate
or medium, though not insignificant, quantum of force,”
Sanders v. City of Fresno, 551 F. Supp. 2d 1149, 1168 (E.D.
16742 BRYAN v. MCPHERSON
Cal. 2008); Beaver, 507 F. Supp. 2d at 1144 (“[T]he Court
first finds that the use of a Taser constituted significant
force.”).
[6] We recognize the important role controlled electric
devices like the Taser X26 can play in law enforcement. The
ability to defuse a dangerous situation from a distance can
obviate the need for more severe, or even deadly, force and
thus can help protect police officers, bystanders, and suspects
alike. We hold only that the X26 and similar devices constitute
an intermediate, significant level of force that must be
justified by “ ‘a strong government interest [that] compels the
employment of such force.’ ” Drummond ex rel. Drummond
v. City of Anaheim, 343 F.3d 1052, 1057 (9th Cir. 2003)
(quoting Deorle, 272 F.3d at 1280 (9th Cir. 2001)).
2. Governmental Interest in the Use of Force
[7] Under Graham v. Connor, we evaluate the government’s
interest in the use of force by examining three core
factors, “the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting
to evade arrest by flight.” 490 U.S. at 396; see also Deorle,
272 F.3d at 1280. These factors, however, are not exclusive.
Rather, we examine the totality of the circumstances and consider
“whatever specific factors may be appropriate in a particular
case, whether or not listed in Graham.” Franklin v.
Foxworth, 31 F.3d 873, 876 (9th Cir. 1994). This analysis
allows us to “determine objectively ‘the amount of force that
is necessary in a particular situation.’ ” Deorle, 272 F.3d at
1280 (quoting Graham, 490 U.S. at 396-97). Viewing the
facts in the light most favorable to Bryan, the totality of the
circumstances here did not justify the deployment of the Taser
X26.
[8] The “most important” factor under Graham is whether
the suspect posed an “immediate threat to the safety of the
BRYAN v. MCPHERSON 16743
officers or others.” Smith v. City of Hemet, 394 F.3d 689, 702
(9th Cir. 2005) (en banc) (quoting Chew, 27 F.3d at 1441). “A
simple statement by an officer that he fears for his safety or
the safety of others is not enough; there must be objective factors
to justify such a concern.” Deorle, 272 F.3d at 1281. The
district court correctly concluded that Bryan’s volatile, erratic
conduct could lead an officer to be wary. While Bryan’s
behavior created something of an unusual situation, this does
not, by itself, justify the use of significant force. “A desire to
resolve quickly a potentially dangerous situation is not the
type of governmental interest that, standing alone, justifies the
use of force that may cause serious injury.” Id. Rather, the
objective facts must indicate that the suspect poses an immediate
threat to the officer or a member of the public.
[9] We agree with the district court that Bryan did not pose
an immediate threat to Officer McPherson or bystanders
despite his unusual behavior. It is undisputed that Bryan was
unarmed, and, as Bryan was only dressed in tennis shoes and
boxer shorts, it should have been apparent that he was
unarmed. Cf. id. at 1281 (“Deorle was wearing no shirt or
shoes, only a pair of cut-off jeans shorts. There was nowhere
for him to secrete any weapons.”). Although Bryan had
shouted expletives to himself while pulling his car over and
had taken to shouting gibberish, and more expletives, outside
his car, at no point did he level a physical or verbal threat
against Officer McPherson. See Smith, 394 F.3d at 702-03
(recognizing that although the victim was shouting expletives,
there was no threat leveled against the officer). Bryan was
standing, without advancing, fifteen to twenty-five feet away
from Officer McPherson between the door and body of the
car. We reject Officer McPherson’s contention that Bryan
constituted a threat by taking a step in Officer McPherson’s
direction. First, when explicitly asked if he “[took] a step out
of the car” or a “step out away from the car,” Bryan testified
“no.” There is, therefore, a genuine issue of fact on this point,
one that, on this procedural posture, we must resolve in
Bryan’s favor and conclude that Bryan did not advance
16744 BRYAN v. MCPHERSON
towards the officer.8 Second, even if Bryan had taken a single
step toward Officer McPherson, this would not have rendered
him an immediate threat justifying an intermediate level of
force, as he still would have been roughly nineteen to twentyfour
feet away from Officer McPherson, by the officer’s own
estimate.
[10] Not only was Bryan standing, unarmed, at a distance
of fifteen to twenty-five feet, but the physical evidence demonstrates
that Bryan was not even facing Officer McPherson
when he was shot: One of the taser probes lodged in the side
of Bryan’s arm, rather than in his chest, and the location of
the blood on the pavement indicates that he fell away from the
officer, rather than towards him.9 An unarmed, stationary
individual, facing away from an officer at a distance of fifteen
to twenty-five feet is far from an “immediate threat” to that
officer. Nor was Bryan’s erratic, but nonviolent, behavior a
potential threat to anyone else, as there is no indication that
there were pedestrians nearby or traffic on the street at the
time of the incident.10 Finally, while confronting Bryan, Officer
McPherson had unholstered and charged his X26, placing
8Counsel for Officer McPherson argued that there is no genuine issue
regarding whether Bryan took a step towards Officer McPherson on the
basis of Bryan’s response to the question of “Did you move your feet in
any way?” Bryan answered, “I don’t think so.” There are, however, any
number of ways one can move one’s feet without taking a “step.” Because
Bryan specifically denied taking a step when expressly asked, we find a
genuine issue exists as to this fact.
9Officer McPherson’s deposition testimony only bolsters this conclusion.
He testified that Bryan fell “faced forward” onto the pavement while
Bryan similarly testified that he fell straight forward.
10Officer McPherson testified in his deposition that the intersection
where he tasered Bryan does not have a lot of traffic on it early on Sunday
mornings and that he did not remember the presence of any traffic on the
specific morning in question. Other than Bryan, his younger brother, and
Officer McPherson, the record indicates that the only individuals near the
scene were an individual playing tennis nearby and a jogger located across
the street. Their declarations indicate that they were fifty to seventy-five
feet and forty feet away, respectively.
BRYAN v. MCPHERSON 16745
him in a position to respond immediately to any change in the
circumstances. The circumstances here show that Officer
McPherson was confronted by, at most, a disturbed and upset
young man, not an immediately threatening one.
Officer McPherson relies heavily on the Eleventh Circuit
opinion in Draper v. Reynolds, 369 F.3d 1270 (11th Cir.
2004), which addressed the use of a taser during the arrest of
an aggressive, argumentative individual. Although we do not
adopt Draper as the law of this circuit, the present case is
clearly distinguishable from the one before the Eleventh Circuit.
Unlike Bryan, who was yelling gibberish and gave no
sign of hearing or understanding Officer McPherson’s orders,
it was undisputed in Draper that Draper heard and understood
the officer’s commands, and not only failed to comply, but
engaged the officer in an increasingly heated argument. Id. at
1273. Four times the officer asked Draper to retrieve paperwork
from the cab of his truck and four times Draper heard
the officer, turned toward the truck to comply, but then turned
around, walked back toward the officer and loudly accused
the officer of “harassing” and “disrespecting” him, displaying
a growing belligerence. Id. It was not until the fifth time that
the officer requested the paperwork and Draper refused to
comply, yelled at the officer, and paced toward him in agitation
that the officer resorted to the taser. Id. The Eleventh Circuit
determined that a verbal arrest command (when Draper
had refused to comply with the first five commands) accompanied
by an attempt to physically handcuff Draper “in these
particular circumstances, may well have or would likely have
escalated a tense and difficult situation into a serious physical
struggle, in which either Draper or [the officer] would be seriously
hurt.” Id. at 1278.
Bryan never addressed, let alone argued with, Officer
McPherson once he left his car. In addition, whereas Bryan
remained stationary at a distance of approximately twenty
feet, or at most took a single step forward, Draper was located
close to the officer and pacing in an agitated fashion while
16746 BRYAN v. MCPHERSON
arguing with him. Id. Thus, the officer in Draper was confronting
a belligerent, argumentative individual who was
angrily pacing within feet of his position. Officer McPherson,
by contrast, was confronted with a half naked, unarmed, stationary,
apparently disturbed individual shouting gibberish at
a distance of approximately twenty feet. The only similarity
to the factual circumstances in Draper is that both Draper and
Bryan were stopped for a traffic violation, were loud, and
were tasered by the police.
[11] The severity of Bryan’s purported offenses “provide[ ]
little, if any, basis for [Officer McPherson’s] use of physical
force.” Smith, 394 F.3d at 702. It is undisputed that Bryan’s
initial “crime” was a mere traffic infraction—failing to wear
a seatbelt—punishable by a fine. Traffic violations generally
will not support the use of a significant level of force. See
Deville v. Marcantel, 567 F.3d 156, 167 (5th Cir. 2009)
(“Deville was stopped for a minor traffic violation . . . making
the need for force substantially lower than if she had been
suspected of a serious crime.”). Officer McPherson also
claims that he reasonably believed Bryan had committed three
misdemeanors—resisting a police officer, failure to comply
with a lawful order, and using or being under the influence of
any controlled substance11 — and that these constitute
“serious—and dangerous—criminal activity.” We disagree
with Officer McPherson’s assessment. While “the commission
of a misdemeanor offense is ‘not to be taken lightly,’ it
militates against finding the force used to effect an arrest reasonable
where the suspect was also nonviolent and ‘posed no
threat to the safety of the officers or others.’ ” Headwaters,
240 F.3d at 1204 (quoting Hammer v. Gross, 932 F.2d 842,
11Cal. Veh. Code § 2800(a) (making it a misdemeanor to willfully fail
or refuse to comply with an order of a peace officer); Cal. Health & Safety
Code § 11550 (making it unlawful to “use, or be under the influence of
any controlled substance”); Cal. Penal Code § 148 (punishing every individual
“who willfully resists, delays, or obstructs any public officer . . .
in the discharge . . . of his or her office” with a fine up to $1000 or up
to 1 year in a county jail).
BRYAN v. MCPHERSON 16747
846 (9th Cir. 1991)). None of the offenses for which Bryan
was cited or of which he was suspected is inherently dangerous
or violent, and as already discussed, Bryan posed little to
no safety threat. Cf. Parker v. Gerrish, 547 F.3d 1, 9 (1st Cir.
2008) (“Though driving while intoxicated is a serious offense,
it does not present a risk of danger to the arresting officer that
is presented when an officer confronts a suspect engaged in
an offense like robbery or assault.”). Therefore, there was no
substantial government interest in using significant force to
effect Bryan’s arrest for these misdemeanor violations that
even the State of California has determined are minor.12 Cf.
Miller v. Clark County, 340 F.3d 959, 964 (9th Cir. 2003)
(finding a felony to be “by definition a crime deemed serious
by the state”).
[12] Officer McPherson now argues that use of the taser
was justified because he believed Bryan may have been mentally
ill and thus subject to detention. To the contrary: if Officer
McPherson believed Bryan was mentally disturbed he
should have made greater effort to take control of the situation
through less intrusive means. As we have held, “[t]he problems
posed by, and thus the tactics to be employed against, an
unarmed, emotionally distraught individual who is creating a
disturbance or resisting arrest are ordinarily different from
those involved in law enforcement efforts to subdue an armed
and dangerous criminal who has recently committed a serious
offense.” Deorle, 272 F.3d at 1282-83. Although we have
refused to create two tracks of excessive force analysis, one
for the mentally ill and one for serious criminals, we have
found that even “when an emotionally disturbed individual is
‘acting out’ and inviting officers to use deadly force to subdue
12Our sister circuits have likewise concluded that misdemeanors are relatively
minor and will generally not support the deployment of significant
force. See, e.g., Fogarty v. Gallegos, 523 F.3d 1147, 1160 (10th Cir.
2008); Reese v. Herbert, 527 F.3d 1253, 1274 (11th Cir. 2008). In addition,
we have previously suggested that felonies not involving violence
provide limited support for the use of significant force under Graham. See
Meredith, 342 F.3d at 1063; Chew, 27 F.3d at 1442-43 & n.9.
16748 BRYAN v. MCPHERSON
him, the governmental interest in using such force is diminished
by the fact that the officers are confronted . . . with a
mentally ill individual.” Id. at 1283. The same reasoning
applies to intermediate levels of force. A mentally ill individual
is in need of a doctor, not a jail cell, and in the usual case
—where such an individual is neither a threat to himself nor
to anyone else—the government’s interest in deploying force
to detain him is not as substantial as its interest in deploying
that force to apprehend a dangerous criminal. Moreover, the
purpose of detaining a mentally ill individual is not to punish
him, but to help him. The government has an important interest
in providing assistance to a person in need of psychiatric
care; thus, the use of force that may be justified by that interest
necessarily differs both in degree and in kind from the use
of force that would be justified against a person who has committed
a crime or who poses a threat to the community. Thus,
whether Officer McPherson believed that Bryan had committed
a variety of nonviolent misdemeanors or that Bryan was
mentally ill, this Graham factor does not support the deployment
of an intermediate level of force.
Turning to Bryan’s “resistance,” we note that Bryan in fact
complied with every command issued by Officer McPherson
except the one he asserts he did not hear—to remain in the
car. Even if Bryan failed to comply with the command to
remain in his vehicle, such noncompliance does not constitute
“active resistance” supporting a substantial use of force. Following
the Supreme Court’s instruction in Graham, we have
drawn a distinction between passive and active resistance. See
Forrester, 25 F.3d at 805 (finding that protestor’s “remaining
seated, refusing to move, and refusing to bear weight” despite
police orders to the contrary constituted “passive resistance”);
see also Headwaters, 276 F.3d at 1130-31 (finding that protestors,
who were chained together with devices and refused to
exit a building when ordered, passively resisted).
By shouting gibberish and hitting himself in the quadriceps,
Bryan may not have been perfectly passive. “Resistance,”
BRYAN v. MCPHERSON 16749
however, should not be understood as a binary state, with
resistance being either completely passive or active. Rather,
it runs the gamut from the purely passive protestor who simply
refuses to stand, to the individual who is physically
assaulting the officer. We must eschew ultimately unhelpful
blanket labels and evaluate the nature of any resistance in
light of the actual facts of the case. For example, in Smith v.
City of Hemet, we confronted an individual who “continually
ignored” officer commands to remove his hands from his
pockets and to not re-enter his home. In addition, he “physically
resisted . . . for only a brief time.” 394 F.3d at 703.
Although Smith was not perfectly passive in the encounter,
we stated that it did not appear “that Smith’s resistance was
particularly bellicose” and thus found that this factor provided
little support for a use of significant force. Id. Even purely
passive resistance can support the use of some force, but the
level of force an individual’s resistance will support is dependent
on the factual circumstances underlying that resistance.
[13] Reviewing Bryan’s conduct, we conclude that even if
we were to consider his degree of compliance solely from the
officer’s subjective point of view, this case would be closer
to the passive resistance we confronted in Forrester and
Headwaters or the minor resistance in Smith, than it would be
to truly active resistance. The only resistance Officer McPherson
testified to was a failure to comply with his order that
Bryan remain in his car. Shouting gibberish and hitting one’s
quadriceps is certainly bizarre behavior, but such behavior is
a far cry from actively struggling with an officer attempting
to restrain and arrest an individual. Compare Abdullahi v. City
of Madison, 423 F.3d 763, 776 (7th Cir. 2005) (involving an
arrestee swinging a belt at an officer and “strenuously resist[-
ing]” as the police attempted to handcuff him); McCormick v.
City of Fort Lauderdale, 333 F.3d 1234, 1241-42 (11th Cir.
2003) (involving an arrestee engaging and advancing on officers
with a stick); Jackson v. City of Bremerton, 268 F.3d
646, 653 (9th Cir. 2001) (involving an individual interfering
with an attempted arrest of an individual by engaging the offi-
16750 BRYAN v. MCPHERSON
cer in a “melee”). As in Smith, Bryan’s “resistance” was not
“particularly bellicose.” Smith, 394 F.3d at 703. Indeed, when
we view the facts in the light most favorable to Bryan, as we
must at this stage of the proceedings, his conduct does not
constitute resistance at all.13
[14] Two additional considerations militate against finding
Officer McPherson’s use of force reasonable. First, it is undisputed
that Officer McPherson failed to warn Bryan that he
would be shot with the X26 if he did not comply with the
order to remain in his car.14 We recognized in Deorle that
police officers normally provide such warnings where feasible,
even when the force is less than deadly, and that the failure
to give such a warning is a factor to consider. See 272
F.3d at 1284; see also Jackson, 268 F.3d at 653 (finding that
the officer’s “safety interest” “increased further when the
group was warned by police that a chemical irritant would be
used if they did not move back . . . and the group refused to
comply”). Here, it was feasible to give a warning that the use
of force was imminent if Bryan did not comply. While a
warning to Bryan may or may not have caused him to comply,
there was “ample time to give that order or warning and no
reason whatsoever not to do so.” Deorle, 272 F.3d at 1284.
[15] Second, we have held that police are “required to consider
‘[w]hat other tactics if any were available’ to effect the
arrest.” Headwaters, 240 F.3d at 1204 (quoting Chew, 27 F.3d
13The jury may credit Bryan’s testimony that he did not hear the officer’s
order to remain in the car. The evidence suggests that Bryan thought
the officer would again approach from the passenger side of his car and
that Bryan turned to face that way. That the officer was instead yards away
in the other direction may have prevented Bryan from hearing the commands.
14Officer McPherson now argues that he did warn Bryan. However,
Officer McPherson’s own testimony belies this claim. Officer McPherson
has consistently testified that he repeatedly ordered Bryan to remain in his
vehicle. This clearly constitutes a command, but it hardly warns him that
if he failed to return to his car he would be shot with a taser.
BRYAN v. MCPHERSON 16751
at 1443).15 Officer McPherson argues that there were no less
intrusive alternatives available to apprehend Bryan. Objectively,
however, there were clear, reasonable, and less intrusive
alternatives. Officer McPherson knew additional officers
were en route to the scene. He was, or should have been,
aware that the arrival of those officers would change the tactical
calculus confronting him, likely opening up additional
ways to resolve the situation without the need for an intermediate
level of force. Thus, while by no means dispositive, that
Officer McPherson did not provide a warning before deploying
the X26 and apparently did not consider less intrusive
means of effecting Bryan’s arrest factor significantly into our
Graham analysis.
3. Balancing the Competing Interests
[16] Our review of the Graham factors reveals that the government
had, at best, a minimal interest in the use of force
against Bryan. This interest is insufficient to justify the use of
an intermediate level of force against an individual. We are
cognizant of the Supreme Court’s command to evaluate an
officer’s actions “from the perspective of a reasonable officer
on the scene, rather than with the 20/20 vision of hindsight.”
Graham, 490 U.S. at 396. We also recognize the reality that
“police officers are often forced to make split-second
judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary
in a particular situation.” Id. at 397. This does not mean, however,
that a Fourth Amendment violation will be found only
in those rare instances where an officer and his attorney are
unable to find a sufficient number of compelling adjectives to
15We do not challenge the settled principle that police officers need not
employ the “least intrusive” degree of force possible. See Gregory v.
County of Maui, 523 F.3d 1103, 1107 (9th Cir. 2008) (citing Forrester, 25
F.3d at 807-08). We merely recognize the equally settled principle that
officers must consider less intrusive methods of effecting the arrest and
that the presence of feasible alternatives is a factor to include in our analysis.
16752 BRYAN v. MCPHERSON
describe the victim’s conduct. Nor does it mean that we can
base our analysis on what officers actually felt or believed
during an incident. Rather, we must ask if the officers’ conduct
is “ ‘objectively reasonable’ in light of the facts and circumstances
confronting them” without regard for an officer’s
subjective intentions. Id.
[17] We thus conclude that the intermediate level of force
employed by Officer McPherson against Bryan was excessive
in light of the governmental interests at stake. Bryan never
attempted to flee. He was clearly unarmed and was standing,
without advancing in any direction, next to his vehicle. Officer
McPherson was standing approximately twenty feet away
observing Bryan’s stationary, bizarre tantrum with his X26
drawn and charged. Consequently, the objective facts reveal
a tense, but static, situation with Officer McPherson ready to
respond to any developments while awaiting back-up. Bryan
was neither a flight risk, a dangerous felon, nor an immediate
threat. Therefore, there was simply “no immediate need to
subdue [Bryan]” before Officer McPherson’s fellow officers
arrived or less-invasive means were attempted. Deorle, 272
F.3d at 1282; see also; Blankenhorn v. City of Orange, 485
F.3d 463, 480 (9th Cir. 2007) (“ ‘[I]t is the need for force
which is at the heart of the Graham factors’ ” (quoting Liston
v. County of Riverside, 120 F.3d 965, 976 (9th Cir. 1997))).
Officer McPherson’s desire to quickly and decisively end an
unusual and tense situation is understandable. His chosen
method for doing so violated Bryan’s constitutional right to
be free from excessive force.
B. Did Officer McPherson Violate Bryan’s Clearly
Established Rights?
[18] Having concluded that Officer McPherson’s actions
violated Bryan’s Fourth Amendment rights, we next must ask
whether his conduct “violate[d] clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
BRYAN v. MCPHERSON 16753
(1982). If an officer’s use of force was “premised on a reasonable
belief that such force was lawful,” the officer will be
granted immunity from suit, notwithstanding the fact excessive
force was deployed. Deorle, 272 F.3d at 1285; see also
Saucier, 533 U.S. at 202 (asserting that the qualified immunity
analysis asks “whether it would be clear to a reasonable
officer that his conduct was unlawful in the situation he confronted”).
We must, therefore, turn to the state of the law at
the time of the current incident to determine if Officer
McPherson could have reasonably believed his use of the
taser against Bryan was constitutional. See Saucier, 533 U.S.
at 202.
[19] All of the factors articulated in Graham—along with
our recent applications of Graham in Deorle and Headwaters
—placed Officer McPherson on fair notice that an intermediate
level of force was unjustified. See Fogarty v. Gallegos,
523 F.3d 1147, 1162 (10th Cir. 2008) (“Considering that
under Fogarty’s version of events each of the Graham factors
lines up in his favor, this case is not so close that our precedents
would fail to portend the constitutional unreasonableness
of defendants’ alleged actions.”); Boyd v. Benton County,
374 F.3d 773, 781 (9th Cir. 2004) (asking whether “a reasonable
officer would have had fair notice that the force
employed was unlawful”). Officer McPherson stopped Bryan
for the most minor of offenses. There was no reasonable basis
to conclude that Bryan was armed. He was twenty feet away
and did not physically confront the officer. The facts suggest
that Bryan was not even facing Officer McPherson when he
was shot. A reasonable officer in these circumstances would
have known that it was unreasonable to deploy intermediate
force.
[20] That there is no direct legal precedent dealing with this
precise factual scenario is not dispositive. Rather, where an
officer’s conduct so clearly offends an individual’s constitutional
rights, we do not need to find closely analogous case
law to show that a right is clearly established. Moreno v.
16754 BRYAN v. MCPHERSON
Baca, 431 F.3d 633, 641 (9th Cir. 2005); see also Hope v.
Pelzer, 536 U.S. 730, 741 (2002) (“[O]fficials can still be on
notice that their conduct violates established law even in
novel factual circumstances.”); Oliver, ___ F.3d at ___, 2009
WL 3417869, at *7 (finding that a right can be clearly established
where the officer’s conduct “lies so obviously at the
very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to [the officer],
notwithstanding the lack of fact-specific case law”). In
the excessive force context, it is clearly established that “force
is least justified against nonviolent misdemeanants who do
not flee or actively resist and pose little or no threat to the
security of the officers or the public.” Brown v. City of Golden
Valley, 574 F.3d 491, 499 (8th Cir. 2009); see also Casey
v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir.
2007). No reasonable officer confronting a situation where the
need for force is at its lowest—where the target is a nonviolent,
stationary misdemeanant twenty feet away—would have
concluded that deploying intermediate force without warning
was justified. We thus hold that Officer McPherson’s use of
significant force in these circumstances does not constitute a
“reasonable mistake” of either fact or law. Deorle, 272 F.3d
at 1286. Officer McPherson is therefore not entitled to qualified
immunity for his use of the Taser X26 against Bryan.
CONCLUSION
Viewing the facts, as we must, in the light most favorable
to Bryan, we conclude, for the purposes of summary judgment,
that Officer McPherson is not entitled to qualified
immunity. We therefore AFFIRM the district court’s denial
of summary judgment and REMAND this case for further
proceedings.
BRYAN v. MCPHERSON 16755

Monday, January 4, 2010

Avoid a DUI - Cheap Breathalyzer at Costco!

AlcoMate Prestige Breathalyzer
Includes Mouthpieces, Additional Sensor Module, Carrying Pouch & Batteries
Item # 363973
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$114.99
Shipping & Handling included *
The estimated delivery time will be approximately
7 - 10 business days from the time of order.
Qty: Product Details Shipping & Terms Product Reviews (0)The AlcoMate Prestige is the original breath alcohol tester that introduced replaceable sensor module technology to the market. Replaceable sensor modules eliminate the need for traditional mail-back calibration service that is required of all other typical breathalyzers.



Includes:

2 AA batteries
5 mouthpieces
Carrying pouch
Pre-installed sensor module
User’s manual


Features:

No calibration service required (replaceable modules)
DOT/NHTSA approved for law enforcement (accuracy +/-0.01 at 0.10% BAC)
Easy one-button operation
3-digit (0.00%) LED display
Active pressure sensor / deep-lung air sampling
Cumulative test counter / audible alerts / low battery indicator
One-way-flow mouthpieces
Auto power off


Specifications:

Sensor type: Oxide semiconductor
Display: 3-Digit LED
Detection range: 0.00% to 0.40% BAC
Weight: 2.3oz (w/o batteries)
Dimensions (retail box): 8.0” x 6.0” x 2.0”
Dimensions (unboxed product): 4.75” x 2.5” x 1.5”
Silver plastic with black trim
Warranty: 1 Year
[Model AL6000]

Sunday, January 3, 2010

New California Laws include DUI interlock measures effective 2010

Drivers, school children, homeowners and everyone else should know about. Following is a partial list with a synopsis of each law that takes effect in 2010.

California DUI drivers

Assembly Bill 91 establishes a pilot program in the counties of Alameda, Los Angeles, Sacramento and Tulare that will run from July 1 through Jan. 1, 2016. The program will require drivers convicted of driving under the influence of drugs or alcohol to install and maintain an ignition interlock device for a prescribed amount of time before they can have their driving privileges reinstated.

California DUI driver options

Effective July 1, Senate Bill 598 will require the Department of Motor Vehicles to advise second-time and third-time misdemeanor DUI offenders of the following options: get a restricted driver's license that would allow driving after a 90-day suspension period after a second conviction, or a six-month suspension period for a third conviction if the violation only involves alcohol.

Offenders must enroll in a DUI program and install and keep ignition interlock devices in their vehicles.

Move Over, Slow Down'

Senate Bill 159 removes the Jan. 1 sunset for a state law that requires a person driving on a freeway to change lanes or slow down when approaching in a lane that is immediately adjacent to a stationary, authorized emergency vehicle that displays emergency lights, or a stationary tow truck that displays flashing amber warning lights.

Caltrans, too

Also effective Jan. 1, Senate Bill 240 adds marked Caltrans vehicles displaying flashing amber warning lights to the "Move Over, Slow Down" law.

Wired for TV

Assembly Bill 62 allows a person to drive a vehicle with a television receiver, video monitor, television or video screen, or any other similar means of visually displaying a television broadcast or video signal, as long as the equipment is designed, operated and configured so that the driver cannot view it while driving.

City, county road workers protected

County and city road workers, their contractors and volunteers, and Caltrans contractors are now protected under Assembly Bill 561 from assault and battery while working on roads, alongside the similar law now protecting highway workers.

Charter bus restrictions tightened

Assembly bill 636 requires the Public Utilities Commission to permanently revoke a charter party carrier's authority to operate, or permanently bar it from receiving a permit or certificate, if the carrier operates a bus without a permit, if it operates a bus with a suspended permit, if it has been cited for three or more insurance violations in two years, if it has one or more unregistered buses, or if it knowingly employs a driver whose license doesn't meet state requirements for bus drivers.

The new law also prohibits officers, directors or owners of charter bus services who have been barred from getting a permit or had their operating authority revoked from getting a permit with a different charter service.

Drivers who operate buses without the proper license will also have their privilege to operate any type of bus revoked for five years.

Toll, please

Assembly Bill 628 will allow bridge toll collectors to use a pay-by-plate toll system, where drivers are identified by their license plate and billed, or the toll is deducted from an Automatic Vehicle Identification account.

The law also says it is evidence of a violation if a driver passes a toll crossing without cash in the right amount, a transponder or other electronic toll payment device associated with a valid AVI account, or a valid license plate.

Have a seat, or not

Senate Bill 527 allow a person to ride a bicycle without a seat, as long as the bicycle was designed by the manufacturer to be ridden without a seat.

Saturday, January 2, 2010

Permanent Loss of Drivers License for 3rd DUI in California?

SF legislator announces a bill that would give California judges the power to permanently revoke licenses of drunk drivers after three California DUID convictions.

The bill, to be unveiled at a news conference in South San Francisco and introduced Monday by Assemblyman Jerry Hill, D-San Mateo, is designed to make it harder for repeat drunken drivers to get back behind the wheel legally. Critics of the bill say it will lead to more unlicensed accidents.

The legislation would set two new standards: a three-strikes rule that judges could use to take drunken drivers off the road forever, and DMV authority to take into consideration a defendant's entire history of drunken driving when deciding to suspend or revoke a license.

Currently, the DMV can only take into account DUI convictions from the past 10 years and can only revoke a driver's license if the motorist injures or kills someone while intoxicated.

"Why should we wait for an accident to happen?" Hill asked. "I don't want to see a loved one of mine — or anyone else, for that matter — harmed or injured by a drunken driver."

Hill said he was compelled to introduce the legislation after reading a series of Bay Area News Group stories. The stories highlighted how a Belmont man who was able to get his license back after his eighth DUI conviction, only to pick up his ninth,
was far from alone in getting back behind the wheel after multiple drunken-driving arrests.

The articles, which ran October through December, included comments from local prosecutors and legislators who argued that the current California DUI law makes it too easy for repeat offenders to get back behind the wheel.

The stories included DMV statistics showing that a whopping 34,145 California drivers had managed to chalk up three or more DUI convictions as of 2006, the most recent data available, while another 6,504 motorists had four or more convictions. A staggering 154,337 additional drivers had two DUIs. DMV records also show the more DUIs a person has, the more likely they are to be arrested again.

The reports were written after William Simon, 42, was sentenced by a San Mateo County court in October for his ninth DUI, apparently the most in California. In his ninth offense, his blood alcohol content was 0.22 — nearly triple the legal limit of 0.08. He was able to get his license back continually because he never injured anyone and his arrests occurred over a 24-year period.

"It's outrageous to think that someone with eight DUIs is still driving," said Hill, who called the county the "poster child" for the DUI issue in California. "The person certainly needs help and has a problem and the solution to the problem isn't a driver's license."

Yet the case of 46-year-old Redwood City resident Juan Rueda, who was arrested for DUI in August while his driving privileges were suspended, illustrates that some chronic offenders cannot be stopped simply be shredding their licenses. He will stand trial on felony charges in San Mateo County next month for what would be his ninth DUI conviction.

"(The bill) is a waste of effort," said Joshua Dale, executive director of the California DUI Lawyers Association. "All it is going to do is increase the amount of unlicensed, uninsured accidents. It's not logical, it's not scientific — it's just reaction."

Still, there is no denying the dangers intoxicated motorists pose to themselves and others and the fact that many do not learn their lesson after the first time.

About 2,500 people were killed by drunken drivers while roughly 59,000 more were injured in California from 2007 to 2008, state figures show. Federal highway officials say one-third of the nation's 1.5 million annual DUI arrests are repeat offenders.

The San Mateo County District Attorney's Office supports the bill, arguing that it would not lead to jail overcrowding but would protect motorists.

"The people who benefit — the public, you and me as we're riding on our streets — deserve that protection," chief deputy district attorney Steve Wagstaffe said.

DMV officials say it is not easy to get a license back after multiple arrests. The cost of hiring special insurance required for those convicted of DUIs and court-ordered classes on the dangers of drunken driving serve as a deterrent for repeat offenders, many of whom never get their licenses back.

Not so for motorists with one to three drunken driving charges. They must pay a fine of as much as $1,000, take a class on the dangers of driving under the influence and possibly serve jail time. First-time offenders lose their licenses for four months, and a third-time offender cannot drive for three years.

The state does have a history of stiffening its DUI laws with time. Dale said the state used to only take into account DUI offenders' previous convictions from the prior five years when sentencing them, and raised the window to seven years in the 1980s and then 10 years recently.

State Sen. Leland Yee, D-San Francisco, had also called for similar laws in Bay Area News Group stories, saying "It's incredible that in the state of California that we have not set an upper limit where enough is enough." However, he said a three-strikes law would be difficult to pass.

Hill said he is optimistic that the bill will pass, noting that it would not cost any money. Its first tests would likely be in the Assembly committees on public safety and judiciary and, if approved by the Legislature and signed by the governor, it would take effect January 2011.