Sunday, October 31, 2010

If looking at the hassles of a DUI occurred in San Diego county, you need the best San Diego DUI attorney available to defend your California DUI

If looking at the hassles of a DUI occurred in San Diego county, you need the best San Diego DUI attorney available to defend your California drunk driving case.


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.



If your San Diego DUI criminal lawyer identifies an illegal action or misconduct by the San Diego police officer, it could be grounds for San Diego DUI case dismissal.


A premier San Diego DUI attorney will be one with over 27 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.


California criminal defense lawyers who attend keep abreast the President of the California DUI Lawyers Association the fact that San Diego California DUI criminal defense attorney Rick Mueller's lectures are excellent.


San Diego DUI law firms provide free initial consultation to California DUI Evaluation

at this online DUI consultation site

.
If you need to save your driver's license or privileges, your attorney has only ten (10) calendar days to contact DMV!


A

Superb-rated

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, your San Diego DUI criminal defense lawyer will keep you advised every step of the way.



In order to properly defend your San Diego 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.



Retaining top San Diego drunk driving legal representation will ensure any necessary bail posting as soon as possible to reduce initial San Diego jail time.


Saturday, October 30, 2010

Folks in trouble with the law fortunately turn to a Contributor to the California Drunk Driving Law book- San Diego's DUI Lawyer Editorial Consultant

Folks in trouble with the law fortunately turn to a Contributor to the California Drunk Driving Law book or San Diego's DUI Lawyer Editorial Consultant for California's bible for DUI defense.

Superb-rated

DUI Criminal Defense Attorney Rick Mueller only handles California DUI and DMV law.



DUI Attorney Rick Mueller is the only DMV & DUI lawyer known as the San Diego "DMV Guru". As the San Diego drunk driving lawyer who is the Specialist Member of the California DUI Attorneys Association, he participates in the National College for DUI Defense.

California DMV / DUI legal representation right here & now: 1-800-THE-LAW-DUI

The DUI Criminal Defense Lawyer for California with a reliable blog who twits:

Drunk Driving Criminal Defense Attorney Blog for San Diego California

Friday, October 29, 2010

California's alternative criminal conviction sentencing for Veterans who can show they have Post-Traumatic Stress Disorder from combat service

AB 674.

Criminal procedure: veterans.

Existing law provides that if a person is convicted of a criminal
offense and alleges that he or she committed the offense as a result
of post-traumatic stress disorder, substance abuse, or psychological
problems stemming from service in combat in the United States
military, the court shall hold a hearing prior to sentencing to make
a determination about the allegation. If the court finds that the
defendant's crime was committed as a result of one of those factors
related to serving in combat, and the court places the person on
probation, existing law authorizes the court to place the person into
a treatment program, and provides that the defendant receives
sentence credits for residential treatment, as specified.

This bill would, if the defendant alleges that he or she committed
the offense as a result of sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health
problems stemming from military service in the United States
military, require the court to make a determination as to whether a
defendant was, or currently is, a member of the United States
military and whether the defendant may be suffering from any of those
disorders, before placing an otherwise eligible defendant on
probation and ordering the defendant into a treatment program, as
specified. The bill would authorize the court to request, through
existing resources, an assessment to aid in the determination of
whether the defendant may be suffering from any of those disorders.
The bill would eliminate the requirement that the offense be
committed as a result of problems stemming from service in a combat
theater.

The bill would authorize the court and an assigned treatment
program to collaborate with the Department of Veterans Affairs and
the United States Veterans Administration to maximize benefits and
services.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1170.9 of the Penal Code is amended to read:
1170.9. (a) In the case of any person convicted of a criminal
offense who could otherwise be sentenced to county jail or state
prison and who alleges that he or she committed the offense as a
result of sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems stemming
from service in the United States military, the court shall, prior to
sentencing, make a determination as to whether the defendant was, or
currently is, a member of the United States military and whether the
defendant may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental
health problems as a result of that service. The court may request,
through existing resources, an assessment to aid in that
determination.
(b) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), and if the
defendant is otherwise eligible for probation and the court places
the defendant on probation, the court may order the defendant into a
local, state, federal, or private nonprofit treatment program for a
period not to exceed that which the defendant would have served in
state prison or county jail, provided the defendant agrees to
participate in the program and the court determines that an
appropriate treatment program exists.
(c) If a referral is made to the county mental health authority,
the county shall be obligated to provide mental health treatment
services only to the extent that resources are available for that
purpose, as described in paragraph (5) of subdivision (b) of Section
5600.3 of the Welfare and Institutions Code. If mental health
treatment services are ordered by the court, the county mental health
agency shall coordinate appropriate referral of the defendant to the
county veterans service officer, as described in paragraph (5) of
subdivision (b) of Section 5600.3 of the Welfare and Institutions
Code. The county mental health agency shall not be responsible for
providing services outside its traditional scope of services. An
order shall be made referring a defendant to a county mental health
agency only if that agency has agreed to accept responsibility for
the treatment of the defendant.
(d) When determining the "needs of the defendant," for purposes of
Section 1202.7, the court shall consider the fact that the defendant
is a person described in subdivision (a) in assessing whether the
defendant should be placed on probation and ordered into a federal or
community-based treatment service program with a demonstrated
history of specializing in the treatment of mental health problems,
including substance abuse, post-traumatic stress disorder, traumatic
brain injury, military sexual trauma, and other related mental health
problems.
(e) A defendant granted probation under this section and committed
to a residential treatment program shall earn sentence credits for
the actual time the defendant serves in residential treatment.
(f) The court, in making an order under this section to commit a
defendant to an established treatment program, shall give preference
to a treatment program that has a history of successfully treating
veterans who suffer from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health
problems as a result of that service, including, but not limited to,
programs operated by the United States Department of Defense or the
United States Veterans Administration.
(g) The court and the assigned treatment program may collaborate
with the Department of Veterans Affairs and the United States
Veterans Administration to maximize benefits and services provided to
the veteran.

Bottom Line:

Pen Code 1170.9 provides for alternative sentencing for Veterans who
can show they have PTSD as a result of combat service.

It reportedly has been amended to provide the alternative for a # of
problems (including DUI/drugs or other mental health) and only linked to service, and not combat service.

AB674 was passed by the assembly and senate and approved by the Governator and was filed with the California Secretary of State on September 27, 2010.

Thursday, October 28, 2010

One California DUI Repeat Offender with a pre-July 1, 2010 arrest has been allowed a restricted license with a vehicle having an IID

Brilliant California DUI Criminal Defense Attorney Paul Burglin today obtained an Order granting the petition for writ of mandamus on the second offender IID issue.

According to public records filed in the Superior Court, County of Marin, California DMV has been ordered to issue the Petitioner an ignition interlock device - restricted license pursuant to California Vehicle Code Section 13352(A)(3, as amended July 1, 2010.

This California Petitioner had a DUI offense date of February 23, 2010, and a DUI conviction date was on July 15, 2010.

Judge Verna Adams of the Marin County Superior Court found, that as to this Petitioner, this case is governed by the principles expressed in IN RE ESTRADA (1965) 63 Cal.2d 740, 744-745 and People v. Durbin (1966) 64 Cal. 2d 474, 478-479.

The California court said that the legislative history of the (DUI) amendment at issue indicates it was intended to 'provide one more tool to proactively fight drunk driving" by providing incentives to repeat (California DUI) offenders to install an IID on their vehicles, which studies have shown reduces recidivism by an estimated 75% and alcohol-related fatalities by 7%. In line with the rationale behind IN RE ESTRADA, by shortening the period of suspension as a way to encourage more repeat offenders to install interlocks, the legislature (h)as thereby indicated that it believes the former law is too restrictive and/or ineffective and, impliedly, its intent to have the new law apply to as many persons as constitutionally permissible."

In due time, the fine California Deputy Attorney General's Office may or may not (a) appeal this decision; and/or (b) instruct DMV to reverse its policy and allow repeat California DUI offenders with violation dates earlier than July 1, 2010 to obtain the IID-restricted license.

Considering California's legislative intent and its goal of public safety, the legislature has determined that even an egregious DUI Petitioner would have been less likely to do what he or she did had he or she had an IID in his or her vehicle.

Right now, it is too soon to tell what will happen throughout California. It is suspected that should DMV become enlightened, appropriate notices will be sent out to respective drivers. That would increase public safety and help everyone!

Wednesday, October 27, 2010

Trial by Jury may be the only way to handle some California DUI criminal defense lawyer cases

Criminal defense attorneys who handle California DUI jury trials understand the immense power of jurors. Here's some statements which some pretty famous observers made.

THOMAS JEFFERSON (1789): I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.

JOHN ADAMS (1771): It's not only ....(the juror's) right, but his duty, in that case, to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the direction of the court.

JOHN JAY (1794): The jury has a right to judge both the law as well as the fact in controversy.

ALEXANDER HAMILTON (1804): Jurors should acquit even against the judge's instruction...."if exercising their judgement with discretion and honesty they have a clear conviction that the charge of the court is wrong."

SAMUEL CHASE (1804): The jury has the right to determine both the law and the facts.

OLIVER WENDELL HOLMES (1920): The jury has the power to bring a verdict in the teeth of both the law and the facts.

U.S. vs. DOUGHERTY (1972) [D.C. Circuit Court of Appeals]: The jury has...."unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge."

BYRON WHITE (1975): The purpose of a jury is to guard against the exercise of arbitrary power--to make available the common sense judgement of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over
conditioned or biased response of a judge.

Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 155 (1968)): "A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government."

Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): "Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority."

Justice BYRON WHITE (Duncan v. Louisiana, 391 US 145, 156 (1968)): "Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it."

Justice BYRON WHITE (Taylor v. Louisiana, 419 US 522, 530 (1975)): "The purpose of a jury is to guard against the exercise of arbitrary power -- to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps overconditioned or biased response of a judge."

Justice THURGOOD MARSHALL (Peters v. Kiff, 407 US 493, 502 (1972)): "Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well."

Justice ROBERT H. JACKSON (Douglas v. Jeannette, 319 US 157, 182 (1943): "Civil liberties had their origin and must find their ultimate guaranty in the faith of the people."

JOHN LOCKE (Second Treatise of Government): "Yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them....And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject."

THOMAS JEFFERSON: "To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

THOMAS JEFFERSON (1789): "The new Constitution has secured these [individual rights] in the Executive and Legislative departments: but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."

JOHN JAY (1st Chief Justice, U. S. Supreme Court, 1789): "The jury has a right to judge both the law as well as the fact in controversy."

SAMUEL CHASE (Justice, U. S. Supreme Court and signer of the Declaration of Independence; in 1804): "The jury has the right to determine both the law and the facts."

Justice OLIVER WENDELL HOLMES (Horning v. District of Columbia, 249 U.S. 596 (1920)): "The jury has the power to bring a verdict in the teeth of both law and fact."

U.S. v. DOUGHERTY, 473 F.2d. 1113, 1139 (1972): "The pages of history shine on instances of the jury's exercise of its prerogative to disregard instructions of the judge...."

U.S. SUPREME COURT (State of Georgia v. Brailsford, 3 DALL. 1,4): "...it is presumed, that the juries are the best judges of facts; it is, on the other hand, presumed that the courts are the best judges of law. But still, both objects are within your power of decision. You have a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy."

Lord Chief Justice MATHEW HALE (2 Hale P C 312, 1665): "...it is the conscience of the jury that must pronounce the prisoner guilty or not guilty."

Lord Chief Justice MATHEW HALE (2 Hale P C 312) (1665): "...it was impossible any matter of law could come in question till the matter of fact were settled and stated and agreed by the jury, and of such matter of fact they [the jury] were the only competent judges."

SIR JOHN VAUGHAN, Lord Chief Justice ("Bushell's Case, 124 Eng Reports 1006; Vaughan Reports 135, 1670): "...without a fact agreed, it is impossible for a judge or any other to know the law relating to the fact nor to direct [a verdict] concerning it. Hence it follows that the judge can never direct what the law is in any matter controverted."

U.S. v. GAUDIN (S.Ct. 1995): in which SC ruled that juries are empowered to determine relevance and materiality.

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "Our American constitution have provided five...separate tribunals, to wit, representatives, senate, executive, jury, and judges; and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals, before its authority can be established by the punishment of those who choose to transgress it. "

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "The authority to judge what are the powers of the government, and what are the liberties of the people, must necessarily be vested in one or the other of the parties themselves--the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "This preposterous doctrine, that "ignorance of the law excuses no one," is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "...there can be no legal right to resist the oppressions of the government, unless there be some legal tribunal, other than the government, and wholly independent of, and above, the government, to judge between the government and those who resist its oppressions...."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852): "The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these--that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government."

HGW ("NOT GUILTY!" 4/17/93): "The conscience of the jury is the yardstick of justice."

HGW: "The jurors have the right to leave the courtroom with a clear conscience."

Justice OLIVER WENDELL HOLMES JR. (Frank v. Mangum, 237 US 309, 347, 1915, not verified): "It is our duty to declare lynch law [to be] as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death."

Justice OLIVER WENDELL HOLMES, JR. (Frank v. Mangum, 237 US 309, 347 (1915)): "Mob law does not become due process of law by securing the assent of a terrorized jury."

ARIZONA SUPREME COURT ? (Marston's, Inc. v. Strand, 560 P.2d 778, 114 Ariz. 260): "Grand jury is [an] investigative body acting independently of either prosecutor or judge whose mission is to bring to trial those who may be guilty and clear the innocent."

JOHN ADAMS (Second President of U.S.) (1771) (Quoted in Yale Law Journal 74 (1964): 173): "It is not only his right, but his duty...to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

BRANCH, MAX. 155: "The verdict of a jury is a bar to equity.

HGW: If citizens, in their roles as jurors, are incompetent to judge the worthiness of the law, how are they, in their roles as voters, competent to judge the worthiness of those who would write the laws?"

HGW: "If the meaning of the law is not a fact, what is it? Is it just an opinion? When the Trial Judge proclaims the law to the jury, he declares it to be a fact of law. But it is just one more 'fact' to be submitted to the jury for confirmation or rejection. They alone have the right to determine whether the judge's opinion is, indeed, a 'fact.'"

THEOPHILUS PARSONS (2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267): "The people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his fellow citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation." (Parsons was a leading supporter of the Constitution in the convention of 1788. He declined President Adams' nomination to be Attorney General and became Chief Justice of Massachusetts).

THEOPHILUS PARSONS (2 Elliot's Debates, 94; 2 Bancroft's History of the Constitution, p. 267): "If a juror accepts as the law that which the judge states then that juror has accepted the exercise of absolute authority of a government employee and has surrendered a power and right that once was the citizen's safeguard of liberty, -- For the saddest epitaph which can be carved in memory of a vanished liberty is that it was lost because its possessors failed to stretch forth a saving hand while yet there was time."

WILLIAM KUNSTLER (quoted in Franklin M. Nugent, "Jury Power: Secret Weapon Against Bad Law," revised from Youth Connection, 1988): "Unless the jury can exercise its community conscience role, our judicial system will have become so inflexible that the effect may well be a progressive radicalization of protest into channels that will threaten the very continuance of the system itself. To put it another way, the jury is...the safety valve that must exist if this society is to be able to accommodate its own internal stresses and strains...[I]f the community is to sit in the jury box, its decision cannot be legally limited to a conscience-less application of fact to law."

LORD DENMAN, (in C.J. O'Connel v. R. ,1884): "Every jury in the land is tampered with and falsely instructed by the judge when it is told it must take (or accept) as the law that which has been given to them, or that they must bring in a certain verdict, or that they can decide only the facts of the case."

LYSANDER SPOONER (An Essay on the Trial by Jury, 1852, p. 11): "For more than six hundred years--that is, since Magna Carta, in 1215, there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws."

CONSTITUTION OF MARYLAND (Article XXIII): "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction."

INSTRUCTION TO JURORS IN CRIMINAL CASES IN MARYLAND (Quoted by Alan Scheflin and Jon Van Dyke, "Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 83, 1980): "Members of the Jury, this is a criminal case and under the Constitution and the laws of the State of Maryland in a criminal case the jury are the judges of the law as well as of the facts in the case. So that whatever I tell you about the law while it is intended to be helpful to you in reaching a just and proper verdict in the case, it is not binding upon you as members of the jury and you may accept or reject it. And you may apply the law as you apprehend it to be in the case."

4TH CIRCUIT COURT OF APPEALS (United States v. Moylan, 417F.2d1006, 1969): "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."

ALAN SCHEFLIN and JON VAN DYKE ("Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 1980): ): "The arguments for opposing the nullification instruction are, in our view, deficient because they fail to weigh the political advantages gained by not lying to the jury...What impact will this deception have on jurors who felt coerced into their verdict by the judge's instructions and who learn, after trail, that they could have voted their consciences and acquitted? Such a juror is less apt to respect the legal system."

INDIANA CONSTITUTION (Article 1, Section 19, Upheld in Holliday v. State 257N.E.579, 1970): "In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts."

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 170, 1964): "It is useful to distinguish between the jury's right to decide questions of law and its power to do so. The jury's power to decide the law in returning a general verdict is indisputable. The debate of the nineteenth century revolved around the question of whether the jury had a legal and moral right to decide questions of law."

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 172, 1964): "Underlying the conception of the jury as a bulwark against the unjust use of governmental power were the distrust of 'legal experts' and a faith in the ability of the common people. Upon this faith rested the prevailing political philosophy of the constitution framing era: that popular control over, and participation in, government should be maximized. Thus John Adams stated that 'the common people...should have as complete a control, as decisive a negative, in every judgment of a court of judicature' as they have, through the legislature, in other decisions of government."

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 172, 1964): "Since natural law was thought to be accessible to the ordinary man, the theory invited each juror to inquire for himself whether a particular rule of law was consonant with principles of higher law. This view is reflected in John Adams' statement that it would be an 'absurdity' for jurors to be required to accept the judge's view of the law, 'against their own opinion, judgment, and conscience.'"

ANON (Note in "The Changing Role of the Jury in the Nineteenth Century, Yale Law Journal, 74, 174, 1964): "During the first third of the nineteenth century,...judges frequently charged juries that they were the judges of law as well as the fact and were not bound by the judge's instructions. A charge that the jury had the right to consider the law had a corollary at the level of trial procedure: counsel had the right to argue the law its interpretation and its validity to the jury."

ALEXANDER HAMILTON (as defense counsel for John Peter Zenger, accused of seditious libel, 7 Hamilton's Works (ed. 1886), 336-373): "That in criminal cases, nevertheless, the court are the constitutional advisors of the jury in matter of law; who may compromise their conscience by lightly or rashly disregarding that advice, but may still more compromise their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong."

Justice KENT (New York Supreme Court 3 Johns Cas., 366-368 (1803)): "The true criterion of a legal power is its capacity to produce a definitive effect, liable neither to censure nor review. And the verdict of not guilty in a criminal case, is, in every respect, absolutely final. The jury are not liable to punishment, nor the verdict to control. No attaint lies, nor can a new trial be awarded. The exercise of this power in the jury has been sanctioned, and upheld in constant activity, from the earliest ages." [Quoted in Sparf and Hansen v. U.S., 156 U.S.51, 148-149. (1894), Gray, Shiras dissenting.]

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 154-155 (1894)): "Within six years after the Constitution was established, the right of the jury, upon the general issue, to determine the law as well as the fact in controversy, was unhesitatingly and unqualifiedly affirmed by this court, in the first of the very few trials by jury ever had at its bar, under the original jurisdiction conferred upon it by the Constitution."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 154-155 (1894)): "The report shows that, in a case in which there was no controversy about the facts, the court, while stating to the jury its unanimous opinion upon the law of the case, and reminding them of 'the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide,' expressly informed them that 'by the same law, which recognizes this reasonable distribution of jurisdiction,' the jury 'have nevertheless a right to take upon themselves to judge of both, and to determine the law as well as the fact in controversy.'"

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 172 (1894)): "It is universally conceded that a verdict of acquittal, although rendered against the instructions of the judge, is final, and cannot be set aside; and consequently that the jury have the legal power to decide for themselves the law involved in the general issue of guilty or not guilty."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894)): "...It is a matter of common observation, that judges and lawyers, even the most upright, able and learned, are sometimes too much influenced by technical rules; and that those judges who are...occupied in the administration of criminal justice are apt, not only to grow severe in their sentences, but to decide questions of law too unfavorably to the accused." The jury having the undoubted and uncontrollable power to determine for themselves the law as well as the fact by a general verdict of acquittal, a denial by the court of their right to exercise this power will be apt to excite in them a spirit of jealousy and contradiction..."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 174 (1894)): "...[A] person accused of crime has a twofold protection, in the court and the jury, against being unlawfully convicted. If the evidence appears to the court to be insufficient in law to warrant a conviction, the court may direct an acquittal...But the court can never order the jury to convict; for no one can be found guilty, but by the judgment of his peers."

Justices GRAY and SHIRAS, UNITED STATES SUPREME COURT (Dissenting opinion, Sparf and Hansen v. U.S., 156 U.S. 51, 176 (1894)): "But, as the experience of history shows, it cannot be assumed that judges will always be just and impartial, and free from the inclination, to which even the most upright and learned magistrates have been known to yield from the most patriotic motives, and with the most honest intent to promote symmetry and accuracy in the law of amplifying their own jurisdiction and powers at the expense of those entrusted by the Constitution to other bodies. And there is surely no reason why the chief security of the liberty of the citizen, the judgment of his peers, should be held less sacred in a republic than in a monarchy."

ALAN SCHEFLIN and JON VAN DYKE ("Jury Nullification: the Contours of a Controversy," Law and Contemporary Problems, 43, No.4, 71 1980): ): "If juries were restricted to finding facts, cases with no disputed factual issues would be withheld from the jury. But such cases are presented to the jury. By its general verdict of innocence, the jury may free a person without its verdict being subject to challenge. The judge cannot ask jurors to explain their verdict, nor may the judge punish the jurors for it. Although judges now generally tell jurors they must obey the judge's instructions on the law, the jurors may not be compelled to do so. If the jury convicts, however, the defendant is entitled to a broad range of procedural protections to ensure that the jury was fair and honest.

"When a jury acquits a defendant even though he or she clearly appears to be guilty, the acquittal conveys significant information about community attitudes and provides a guideline for future prosecutorial discretion in the enforcement of the laws. Because of the high acquittal rate in prohibition cases during the 1920s and early 1930s, prohibition laws could not be enforced. The repeal of these laws is traceable to the refusal of juries to convict those accused of alcohol traffic.

STEVEN E. BARKAN ("Jury Nullification in Political Trials," Social Problems, 31, No. 1, 38, October 1983): "Jury acquittals in the colonial, abolitionist, and post-bellum eras of the United States helped advance insurgent aims and hamper government efforts at social control. Wide spread jury acquittals or hung juries during the Vietnam War might have had the same effect. But the refusal of judges in trials of anti war protesters to inform juries of their power to disregard the law helped ensure convictions, which in turn frustrated anti war goals and protected the government from the many repercussions that acquittals or hung juries would have brought."

JUDGE LEARNED HAND (U.S. ex rel. McCann v. Adams, 126F.2d774, 775-76 (2d Circuit Court, 1942): "...[T]he institution of trial by jury especially in criminal cases has its hold upon public favor chiefly for two reasons. The individual can forfeit his liberty to say nothing of his life only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigor by the mollifying influence of current ethical conventions. A trial by any jury...preserves both these fundamental elements and a trial by a judge preserves neither..."

JUDGE DAVID BAZELON ("The Adversary Process: Who Needs It?," 12th Annual James Madison Lecture, New York University School of Law (April, 1971), reprinted in 117 Cong. Rec. 5852, 5855 (daily ed. April 29, 1971)): "It's easy for the public to ignore an unjust law, if the law operates behind closed doors and out of sight. But when jurors have to use a law to send a man to prison, they are forced to think long and hard about the justice of the law. And when the public reads newspaper accounts of criminal trials and convictions, they too may think about whether the convictions are just. As a result, jurors and spectators alike may bring to public debate more informed interest in improving the criminal law. Any law which makes many people uncomfortable is likely to attract the attention of the legislature. The laws on narcotics and abortion come to mind and there must be others. The public adversary trial thus provides an important mechanism for keeping the substantive criminal law in tune with contemporary community values."

LEWIS CARROL (Alice in Wonderland): "I'll be the judge, I'll be the jury," said cunning old Fury; "I'll try the whole cause, and condemn you to death."

LEWIS CARROL (Alice in Wonderland): "No! No! Sentence first -- verdict afterwards."

WILLIAM SHAKESPEARE (Measure for Measure, 17): 'Tis one thing to be tempted, Escalus, Another thing to fall. I not deny, The jury, passing on the prisoner's life, May in the sworn twelve have a thief or two Guiltier than him they try.

CLARENCE DARROW (Debate with Judge Alfred J. Talley, Oct. 27, 1924): "Why not reenact the code of Blackstone's day? Why, the judges were all for it -- every one of them -- and the only way we got rid of those laws was because juries were too humane to obey the courts. "That is the only way we got rid of punishing old women, of hanging old women in New England -- because, in spite of all the courts, the juries would no longer convict them for a crime that never existed."

Justice OLIVER WENDELL HOLMES, JR. (I Holmes-Pollock Letters, (Howe, Mark DeWolfe, ed., Cambridge, Mass: Harvard University Press, 1946, p.74): "The man who wants a jury has a bad case....The use of it is to let a little popular prejudice into the administration of law -- (in violation of their oath)." [Mr. Justice Holmes should have noted that the "oath" itself was not binding. Administering such an oath is not authorized by the Constitution. If a juror refused such an oath, he would be disqualified, thus denying the defendant a fair jury. -- HGW]

SIR WILLIAM BLACKSTONE (Commentaries on the Laws of England, 1765-1769): "Every new tribunal, erected for the decision of facts, without the intervention of a jury...is a step towards establishing aristocracy, the most oppressive of absolute governments."

Justice ROBERT H. JACKSON (Morisette v. United States, 342 U.S. 246): "But juries are not bound by what seems inescapable logic to judges."

U.S. v. WILSON (629 F.2d 439, 443 (6th Cir. 1980): "In criminal cases, a jury is entitled to acquit the defendant because it has no sympathy for the government's position."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 413, M.D. Tennessee, 1993): "Judicial and prosecutorial misconduct still occur, and Congress is not yet an infallible body incapable of making tyrannical laws."

Justice WHITE (WILLIAMS v. FLORIDA 399 U.S. 78, 90, 1970): "the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 415, M.D. Tennessee, 1993): "...a defendant's right to inform the jury of that information essential to prevent oppression by the Government is clearly of constitutional magnitude."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 415-416 M.D. Tennessee, 1993): "There is no statutory proscription against making the jury aware of possible punishment. Instead, courts that have disallowed juror awareness of sentencing contingencies have peremptorily resorted to the factfinding - sentencing dichotomy to justify this denial. For example, the Eighth Circuit, in United States v. Goodface, merely stated that 'the penalty to be imposed upon a defendant is not a matter for the jury' and so it was proper not to inform the jury of a mandatory minimum term. See 835 F.2d at 1237. No further justification is given. In making this facile distinction, the courts have created an artificial, and poorly constructed, fence around the jury's role."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 417 M.D. Tennessee, 1993): "The Supreme Court has not mandated that juries be in the dark on the issue of sentence. Those courts so ruling have done so on unconvincing grounds. The power of jury nullification historically has extended to sentencing decisions, and it rightfully should extend to such decisions. This court finds no precedential rationale for rejecting the defendant's motion."

JUDGE WISEMAN (U.S. v. DATCHER 830 F.Supp. 411, 417 M.D. Tennessee, 1993): "...this remedy [jury nullification] is one that should be reserved for only those cases where criminal law and community norms greatly diverge."

JUDGE DAVID BAZELON (U.S. v. Dougherty, 473 F.2d 1113, 1140, D.C. Circ. 1972): "The drafters of legal rules cannot anticipate and take account of every case where a defendant's conduct is 'unlawful' but not blameworthy, any more than they can draw a bold line to mark the boundary between an accident and negligence. It is the jury -- as spokesman for the community's sense of values -- that must explore that subtle and elusive boundary."

HGW: "The Jury is the Achilles heel of tyrants."

Justice HUGO BLACK (Smith v. Texas, 1940, per The Great Quotations, ed. George Seldes, Citadel Press, 1983):

"It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it, but is at war with our basic concepts of a democratic society and a representative government....

"If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand."

GEORGE H. BOLDT (U.S. federal judge, U.S. V. Beck, February, 1959, per The Great Quotations, ed. George Seldes, Citadel Press, 1983): "Jury service honorably performed is as important in the defense of our country, its Constitution and laws, and the ideals and standards for which they stand, as the service that is rendered by the soldier on the field of battle in time of war."

1 Journals of the Continental Congress, 1774-1789, pp. 101, 105 (1904) (Journals) as quoted in RICHMOND NEWSPAPERS, INC v VIRGINIA, 448 US 555 (1980)" [One] great right is that of trial by jury. This provides that neither life, liberty nor property can be taken from the possessor until twelve of his unexceptionable countrymen and peers of his vicinage, who from that neighbourhood may reasonably be supposed to be acquainted with his character and the characters of the witnesses, upon a fair trial, and full enquiry, face to face, in open Court, before as many of the people as chuse to [448 U.S. 569] attend, shall pass their sentence upon oath against him. . . ."

Jury outrages & successes:

1. Several people in North Carolina were prosecuted for harvesting ginseng out of season in a national forest. They were acquitted by an informed jury.

2. Bill Lord, gun store owner convicted in Austin, Texas, June 13, 1994, for selling cheap weapons to suspicious characters; an Hispanic woman whose own plea bargain called for her to finger someone else. An uninformed jury convicted Lord.

3. Rodger Sless trial, June 6, 1994. FDA raided his New Mexico health food store accusing him of selling an unapproved vitamin. The FDA never tested this vitamin, never published notice, never asked for comment, never held hearings, never created a regulation, never gave Rodger Sless any warning. An informed jury found Sless not guilty on 15 counts of trumped-up FDA charges.

4. May 2, 1994. A Detroit jury acquitted Jack Kevorkian of physician assisted suicide, even after the Michigan legislature had just passed a law against it.

5. Waco "massacre" trial. Branch Davidian jury forewoman Sarah Bain was shocked to find that because the jurors thought it would result in a "slap on the wrist," they found some of the defendants guilty of "minor" charges -- then learned that they had thereby enabled the judge to sentence them to 40 years in prison!! The judge was angry that they'd voted for acquittal on the murder and conspiracy charges!

6. U.S. vs. Span: Jerry and Darlene Span were attacked by U.S. Marshals in a case of mistaken identity. Witnesses not allowed to testify in court stated that the Marshals hit the Spans for no apparent reason. The Spans were convicted of assault by an uninformed jury. Later, 5 of the jurors
asked for a new trial -- because they felt they'd been misled by the jury instructions. Request denied.

7. Government prosecutes store owners in Georgia for selling lights that may be used for growing marijuana. Uninformed jury convicts store owners for conspiracy!

8. 1692. Salem witch trials. After convicting 19 defendeants to death for practicing witchcraft, 52 consecutive trials result in acquittals or hung juries, though in direct opposition to the judge's instructions. Fully informed jurors finally embrace reason in spite of political hysteria.

9. Northern jurors in the 1850's refuse to convict Quakers and others of aiding and abetting runaway slaves, though in direct opposition to the Runaway Slave Act.

10. California jury refuses to convict AIDS sufferer for growing his own medicine, Cannabis (marijuana). Medical necessity defense rarely allowed by judges. Fully informed jury votes for acquittal.

Tuesday, October 26, 2010

A San Diego California DUI / DMV attorney has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office

California includes San Diego proper and San Diego county, so the DMV there operates much like throughout the state after a drunk driving ordeal.





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.


If your San Diego DUI / DMV attorney has not been retained yet, get a San Diego DUI / DMV Attorney Specialist.

DMV will not be able to schedule a hearing before your 30-day temporary license expires. Your San Diego DUI defense attorney will request a Notice of Stay of the 30-day temporary license until a San Diego DMV hearing is provided and a San Diego DMV decision is actually rendered.

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.

Background: Rick lectured for California Attorneys For Criminal Justice

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

.

Video of Premier DUI / DMV Lawyer in California




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.

Monday, October 25, 2010

Top 10 things a California DUI defense attorney should tell you about the DMV process

Top 10 things a California DUI defense attorney should tell you about the DMV process:

1. All a California DUI / DMV lawyer has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!






2. The DMV has the burden of proof to prevail on all three (3) California DUI issues. If DMV meets the burden of proof on two (2) issues, you win!



3. There are three (3) issues at the hearing if you completed a California DUI chemical test. (See reverse side of DMV paper.)



California DUI considerations include if the California drunk driving officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.



4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.



5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.



If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your California DUI / DMV hearing is determined.



6. Even if you have a license from another state, and even if the California DUI officer did not take your license, that state may also take action against your driving privileges.



7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.



8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.



9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact a California DUI defense lawyer.



10. If you need to save your driver's license or privileges, your California DUIattorney has only ten (10) calendar days to contact DMV!


Do not schedule yourself. If you contact DMV to schedule a date conflicting with your California DUI attorney's calendar, DMV will not reschedule and you may not get the attorney of your choice. There is no rush as long as your California DUI lawyer contacts DMV by the 10th day from your California DUI arrest.

Friday, October 22, 2010

LAPD Announce DUI Checkpoint in California, San Diego DUI checkpoint results

LAPD Announce DUI/Driver's License Checkpoint
Sobriety & Drivers License Checkpoint Friday, October 22, 2010 8 P.M. - 2 A.M. at Florence Avenue between Broadway and Main Street, Los Angeles, California

Officers from the Chula Vista Police Department conducted a DUI Saturation Patrol on Saturday, October 9th, 2010 within the City of Chula Vista.

The DUI Saturation Patrol was aimed at increasing public awareness, decreasing the number of drivers who drive while under the influence of alcohol and/or drugs as well as insuring drivers have a valid driver’s license.

During this San Diego California DUI operation, traffic stops were conducted on 46 vehicles. 6 persons were evaluated for driving under the influence and 1 of the drivers was arrested for driving under the influence of alcohol. A driver and passenger were cited for open alcohol containers in a vehicle. 1 driver was driving on a suspended license and another driver had no driver’s license. A total of 3 vehicles were impounded for drivers driving on a suspended license, without a license or driver arrested. 10 additional citations were written for various other vehicle code violations.

This was considered a successful DUI Saturation Patrol. The Chula Vista Police Department is continuing its efforts to keep our community safe by detecting and deterring impaired drivers. The Chula Vista Police Department is asking for the public’s continued assistance throughout the year to Report Drunk Drivers – Call 9-1-1.

DUI Sobriety checkpoints in San Diego & Southern California information should be shared and reported. Go to bottom for CURRENT locations.

Please send in DUI checkpoints to California DUI Lawyer Rick Mueller.

Thursday, October 21, 2010

Marijuana stays in blood for a very long time, studies point out per California DUI criminal defense attorneys

California may legalize pot. As a major thoroughfare for supplies, Mexico may have to adapt. The feds threaten to sue California and still uphold marijuana laws.

Marijuana stays in the blood for a maximum of four hours.

================================================================================================

TITL: [Serum cannabinoid levels 24 to 48 hours after cannabis smoking.] Cannabinoidbefunde im Serum 24 bis 48 Stunden nach Rauchkonsum.

AUTH: Skopp Gisela; Richter Barbara; Potsch Lucia

ORGA: Institut fur Rechts- und Verkehrsmedizin, Universitat Heidelberg.

PUB TYPE: Case Reports. Journal Article.

CITE: Arch Kriminol. 2003 Sep-Oct; 212 (3-4): 83-95.

LANG: GER; German

ABST: Low concentrations of THC and 11-hydroxy-THC in serum samples are often claimed not to result from recent cannabis use. Prediction of time of exposure is difficult, especially if distinctive features of drug use could not be observed. Therefore, the aim of the study was to investigate the presence of THC and 11-hydroxy-THC in serum samples as well as to obtain preliminary data on the analyte profile for a time window of 24-48 hours after discontinuation of cannabis smoking. Serum samples from heavy (n = 12, > 1 joint/day), moderate (n = 11, < or = 1 joint/day) and light (n = 6, < 1 joint/week) smokers of cannabis were analyzed for THC, 11-hydroxy-THC and free THC-COOH by GC/MS as well as for glucuronidated THC-COOH by LC/MS-MS. The blood samples were collected 24-48 hours after abstaining from cannabis use. Additionally, 8 specimens were obtained from persons after discontinuation of the drug for more than 48 hours. During collection of the blood samples, distinctive effects due to drug use could not be observed. For heavy users of cannabis, THC was detectable in 8 samples, and in 5 cases both biologically active compounds, THC and 11-hydroxy-THC, were present (1.3-6.4 ng THC/mL serum, 0.5-2.4 ng 11-hydroxy-THC/mL serum). Among moderate users, in 1 sample 1.8 ng THC/mL serum and 1.3 ng 11-hydroxy-THC/mL serum were determined, and another sample was tested positive with low concentrations close to the limit of detection. In serum samples of light users both analytes could not be detected, indicating that in those persons a positive finding of THC and 11-hydroxy-THC may rather result from recent consumption than from cannabis use 1 or 2 days prior to blood sampling. The concentrations of THC-COOH and its glucuronide covered a wide range in all groups of cannabis users. However, there was a trend to higher concentrations in heavy users compared to moderate users, and the mean concentration was smaller in light smokers than in moderate smokers. Overall, the findings indicated that data from pharmacokinetic studies should be supplemented by data obtained from "real-life" samples.

MJTR: Accidents, Traffic, legislation & jurisprudence. Cannabinoids, blood. Marijuana Smoking, blood. Tetrahydrocannabinol, analogs & derivatives.

MNTR: Adult. English Abstract. Female. Humans. Male. Mass Fragmentography. Metabolic Clearance Rate, physiology. Predictive Value of Tests. Research Support, Non-U.S. Gov't. Tetrahydrocannabinol, blood. Time Factors.

RNUM: 0 (Cannabinoids); 1972-08-3 (Tetrahydrocannabinol); 23978-85-0 (delta(9)-tetrahydrocannabinolic acid); 26108-40-7 (11-hydroxy-delta(9)-tetrahydrocannabinol)

GEOT: Germany

IDEN: ISSN: 0003-9225. JOURNAL-CODE: 0002256. ENTRY-DATE: 20031126. SPECIAL-LIST: IM. JOURNAL-SUBSET: IM.

PMID: 14639811
================================================================================================

TITL: [Passive exposure in detection of low blood and urine cannabinoid concentrations.] Zur Passivexposition bei der Beurteilung niedriger Cannabinoidkonzentrationen in Blut und Urin.

AUTH: Skopp G; Potsch L

ORGA: Institut fur Rechtsmedizin und Verkehrsmedizin der Universitat Heidelberg.

PUB TYPE: Journal Article.

CITE: Arch Kriminol. 2001 May-Jun; 207 (5-6): 137-47.

LANG: GER; German

ABST: Whenever small amounts of drugs are present in blood or urine samples, especially of substances that are preferentially smoked such as cannabinoids, the discrimination between active and passive inhalation may cause severe problems. The statement of a passive exposure by marijuana smoke has been scrutinized reviewing the literature. The pharmacokinetics of smoked marijuana as well as experimental data on cannabinoid concentrations in plasma and urine samples following passive exposure are summarized. As a conclusion it seems urgent to enlarge the existing data base.

MJTR: Cannabinoids, pharmacokinetics. Marijuana Smoking, legislation & jurisprudence. Substance Abuse Detection, legislation & jurisprudence. Tobacco Smoke Pollution.

MNTR: Automobile Driving, legislation & jurisprudence. English Abstract. Humans. Marijuana Smoking, metabolism. Metabolic Clearance Rate, physiology. Social Environment. Tetrahydrocannabinol, pharmacokinetics.

RNUM: 0 (Cannabinoids); 1972-08-3 (Tetrahydrocannabinol)

GEOT: Germany

IDEN: ISSN: 0003-9225. JOURNAL-CODE: 0002256. ENTRY-DATE: 20010817. SPECIAL-LIST: IM. JOURNAL-SUBSET: IM.

PMID: 11508050
================================================================================================

TITL: Time of drug elimination in chronic drug abusers. Case study of 52 patients in a "low-step" detoxification ward.

AUTH: Reiter A; Hake J; Meissner C; Rohwer J; Friedrich H J; Oehmichen M

ORGA: Department of Legal Medicine, Medical University of Lubeck, Kahlhorststrasse 31-35, D-23562 Lubeck, Germany.

PUB TYPE: Journal Article.

CITE: Forensic Sci Int. 2001 Jun 15; 119 (2): 248-53.

LANG: ENG; English

ABST: The elimination time of illicit drugs and their metabolites is of both clinical and forensic interest. In order to determine the elimination time for various drugs and their metabolites we recruited 52 volunteers in a protected, low-step detoxification program. Blood samples were taken from each volunteer for the first 7 days, daily, urine sample for the first 3 weeks, daily. Urine was analyzed using a fluorescence-polarization immunoassay (FPIA) and gas chromatography/mass spectrometry (GC/MS), serum using GC/MS. The elimination times of the drugs and/or their metabolites in urine and serum as well as the tolerance intervals/confidence intervals were determined. Due to the sometimes extremely high initial concentrations and low cut-off values, a few of the volunteers had markedly longer elimination times than those described in the literature. The cut-off values were as follows: barbiturates II (200ng/ml), cannabinoids (20ng/ml), cocaine metabolites (300ng/ml), opiates (200ng/ml). GC/MS detected the following maximum elimination times: total morphine in urine up to 270.3h, total morphine and free morphine in serum up to 121.3h, monoacetylmorphine in urine up to 34.5h, 11-nor-9-carboxy-delta-9-tetrahydrocannabinol (THC-COOH) in urine up to 433.5h, THC-COOH in serum up to 74.3h, total codeine in urine up to 123h, free codeine in urine up to 97.5h, total codeine in serum up to 29h, free codeine in serum up to 6.3h, total dihydrocodeine (DHC) in urine up to 314.8h, free DHC in urine up to 273.3h, total and free DHC in serum up to 50.1h. Cocaine and its metabolites were largely undetectable in the present study.

MJTR: Street Drugs, metabolism. Substance-Related Disorders, metabolism.

MNTR: Adult. Chronic Disease. Female. Fluorescence Polarization Immunoassay. Hospital Units. Humans. Male. Mass Fragmentography. Metabolic Clearance Rate. Prospective Studies. Substance Abuse Detection. Substance Abuse Treatment Centers. Substance-Related Disorders, therapy. Time Factors.

RNUM: 0 (Street Drugs)

GEOT: Ireland

IDEN: ISSN: 0379-0738. JOURNAL-CODE: 7902034. ENTRY-DATE: 20010529. SPECIAL-LIST: IM. JOURNAL-SUBSET: IM.

Wednesday, October 20, 2010

Marijuana users use greater caution when driving, California DUI criminal defense lawyers show

While California DUI attorney prosecutors maintain that alcohol makes one drive fast, marijuana use makes drivers more cognizant of the speed limit.

Less 5 ng in one's system is consistent with a claim that an individual had not smoked marijuana since the previous day.

Based on the research discussed below it is also indicative of ingestion occurring at least 3 hours prior to the test. As a result, this level would not be expected to cause impairment.

Marijuana has been shown to impair performance on driving simulator tasks and on open and closed driving courses for up to approximately 3 hours. After that period, most effects have returned to baseline levels. Even where impairment is present, however, evidence from studies strongly suggests that those using marijuana alone exercise greater caution when driving. As a result, even when impaired, some drivers actually improve their performance by overcompensating for self-perceived impairment.

Despite the possibility of impairment at higher doses, NHTSA sponsored studies have shown that low doses of marijuana taken alone, do not impair city driving performance and do not diminish visual search frequency for traffic at intersections. In fact, some studies have even reported improvement in driving performance in subjects at low doses of marijuana.

THC is the primary psychoactive constituent of marijuana. Most behavioral and physiological effects of THC return to baseline levels within three to six hours after exposure. This tracks with the concentration of THC in an individual’s system which declines rapidly and is often < 5 ng/ml three hours after use. Generally concentrations in the range of 7-29 ng/ml for THC in blood are necessary to induce even 50% of the maximal subjective high effect. Further, levels of THC in plasma over 25-30ng/ml are typically required before inducing failure on roadside sobriety tests. Thus, even when detectable, THC's adverse effects on driving performance have been determined to be relatively small.

As a result of the factors described above, it is difficult to establish a relationship between an individuals THC blood or serum concentration and any performance impairing effects it may have. Further, due to chemical and pharmacokinetic differences between marijuana and ethanol, we can not use ethanol as a model for relating drug concentrations to effects.

In fact, NHTSA sponsored studies have found that it is not possible to conclude anything about a driver's impairment on the basis of his/her plasma concentrations of THC determined in a single sample. Thus, one should not try to predict impairment based on blood THC concentrations alone.

Sources

1. Marijuana And Actual Driving Performance, U.S. Department of Transportation, National Highway Traffic Safety Administration (DOT HS 808 078), Final Report, November 1993.

2. NHTSA, Traffic Tech, Technology Transfer Series, Number 225 May 2000.

3. NHTSA, Drug and Human Performance fact Sheets, Barry K. Logan and Fiona Couper, DOT HS 809 725 (April 2004).

4. Cone EJ, Huestis MA (1993) Relating blood concentrations of tetrahydrocannabinol and metabolites to pharmacologic effects and time of marijuana usage. Ther Drug Monit 15(6):527-32.

5. Reeve VC, Grant JD, Robertson W, Gillespie HK & Hollister LE (1983) Plasma concentrations of ∂-9 tetrahydrocannabinol and impaired motor function. Drug & Alcohol Dependence 11 pp167-175.

6. Heishman SJ, Huestis MA, Henningfield JE, and Cone EJ, Acute and Residual Effects of Marijuana: Profiles of Plasma THC Levels, Physiological, Subjective, and Performance Measures., Pharmacol Biochem Beh 1990;37:561.

7. Klonoff H. Marijuana and driving in real-life situations. Science 1974;186:317; Smiley A, Moskowitz H, Ziedman K. Effects of drugs on driving. US Department of Health andHuman Services, Government Printing Office, Washington, DC. 1985 Publication No. ADM85-1386.

8. Perez-Reyes M, Owens SM, and Di Guiseppi S. The clinical pharmacology and dynamics of marihuana cigarette smoking. J Clin Pharmacol 1981: 21;201S.

9. Hollister LE, Gillespie HK, Ohlsson A, Lindgren JE, and Wahlen A, and Agurell S. Do plasma concentrations of delta-9-tetrahydrocannabinol reflect the degree of intoxication? J Clin Pharmacol 1981;21:171S.

Tuesday, October 19, 2010

Since breath machine reads slightly high, a .08/,08 cannot satisfy DMV burden of proof; with unknown third digit & .002% margin of error

1
Filed 10/18/10
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DEREK BRENNER,
Plaintiff and Respondent,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Appellant.
A126745
(San Mateo County
Super. Ct. No. 482568)
This appeal challenges the trial court‟s determination that the Department of Motor Vehicles (the DMV, or the Department) failed to meet its burden of proving plaintiff Derek Brenner was driving with a blood alcohol content of .08 or more when he was stopped by law enforcement officers. We find no error, and affirm.
BACKGROUND
I. Arrest and Blood Alcohol Tests
The relevant facts are undisputed. Near midnight on December 30, 2008, Officer Matt Gilliam of the California Highway Patrol stopped plaintiff after observing his erratic driving. Plaintiff‟s eyes were bloodshot, his speech was slow, and he smelled of alcohol. He performed poorly on a series of field sobriety tests. Three preliminary alcohol screening (PAS) tests taken over a five-minute interval measured his blood alcohol content (BAC) at .080, .053, and .085 percent.
Plaintiff was arrested and submitted to a breath test. Two samples, taken at 12:42 a.m. and 12:45 a.m., respectively, gave identical readings of .08 percent BAC. Before and between the two tests Officer Gilliam tested the device with an air blank that registered 0.00 BAC.
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II. Administrative Hearing
Plaintiff requested an administrative hearing pursuant to Vehicle Code section 13558 to contest the suspension of his driver‟s license. At the hearing, Officer Gilliam testified about his observations of plaintiff‟s driving, his field sobriety and PAS tests, and his BAC tests. The hearing officer admitted Officer Gilliam‟s sworn report regarding plaintiff‟s breath test results and the arrest report, which included plaintiff‟s PAS results and a printout of his BAC test results.1
In response, plaintiff submitted maintenance records for the instrument used to test his breath and expert testimony from forensic toxicologist Kenneth Mark to explain that the calibration records showed, at the time of plaintiff‟s breath test, the device was producing readings higher for alcohol content by .002 percent than a calibrated sample. Although the deviation was within the variances allowable for breath-testing instruments under state regulations, Mark testified plaintiff‟s actual BAC was less than the .08 shown on his BAC results.
The DMV hearing officer suspended plaintiff‟s license. The hearing officer rejected plaintiff‟s contention that the breath test results were inflated “based on the following inference by the trier of fact: Ken Mark testified the calibration records indicate the breath machine was in compliance with Title 17 and the expected values were within tolerances. The testimony of Ken Mark indicating the machine was reading high by .002 is not sufficient enough to establish respondent‟s BAC was .07% because the third digit on the breath test results is truncated. Greater weight is given to the breath test results indicating respondent‟s BAC was .08%.”
III. Trial Court Proceedings
Plaintiff challenged the DMV decision by a petition for writ of administrative mandate seeking to set aside his suspension. He argued, inter alia, that the calibration records and expert testimony were sufficient to rebut the presumptive correctness of BAC
1 Other DMV documents not relevant to the issues raised in this appeal were also admitted.
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test results recorded by officials, and that the DMV failed to prove by a preponderance of the evidence that he was driving with a BAC of .08 or higher.
The DMV responded that plaintiff provided no evidence to rebut its showing that the arresting officer administered the test in accordance with all statutory requirements. It contended the calibration records were insufficient rebuttal evidence because correcting plaintiff‟s test results for the .002 percent variance identified by plaintiff‟s expert would bring his test results under the legal limit only if his actual BAC were .080 or .081 percent. If plaintiff had a BAC of .082 percent to 0.089 percent, his corrected test result would still yield a BAC of .08 percent or greater.2 Thus, since there was an 80 percent probability that plaintiff‟s BAC was at least .08 percent and only a 20 percent chance it was under the legal limit, the Department said plaintiff‟s evidence was merely speculative and the hearing officer‟s determination was supported by the weight of evidence.
The trial court granted the petition for writ of mandate and ordered the DMV to set aside the suspension of plaintiff‟s license. It explained: “The Department did not present any evidence that [plaintiff‟s] BAC was higher than 0.08. The Department is in fact precluded by Cal. Code Regs., tit. 17, § 1220.4 from reporting BAC results to more than two decimal places. The Department did not present any evidence to contradict the calibration records that demonstrate the machine was consistently reading higher than the true values tested. The Department did not call an expert witness on any issues. [¶] In this case, the breath result was right at the threshold: 0.08. Therefore any calibration error that causes the instrument to read high necessarily drops the true result below the 0.08 threshold. Since the Department did not present evidence that [plaintiff‟s] BAC was higher than 0.08, guessing what the third, unreported digit of his test result might be is
2 Forensic analysis facilities are required to report blood analysis results to only two decimal places and to delete the digit in the third decimal place when obtained. (Cal. Code Regs., tit. 17, § 1220.4, subd. (b).) All further references to Regulations are to title 17 of the California Code of Regulations.
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not only precluded by Title 17, but it would be just that: guessing. On the evidence presented, the Department did not meet its burden of proof by a preponderance.”
The DMV timely appealed.
DISCUSSION
I. The Legal Framework
The burdens of proof at administrative DMV hearings are allocated as stated in Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1232-1234.) An administrative hearing before the DMV “ „does not require the full panoply of the Evidence Code provisions used in criminal and civil trials.‟ [Citation.] In this hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. [Citations.] The DMV may satisfy its burden via the presumption of Evidence Code section 664. [Citation.] „Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. [Citations.] . . . The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence. [Citation.]‟ [Citation.] With this presumption, the officer‟s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test. [Citations.]
“Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. [Citations.] „The licensee must show, “through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed . . . .” [Citation.] Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.‟ [Citations.] [¶] „In ruling on an application for a writ of mandate following an order of suspension or
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revocation, a trial court is required to determine, based on its independent judgment, “ „whether the weight of the evidence supported the administrative decision.‟ ” ‟ [Citation.] Even exercising its independent judgment, the trial court still „must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.‟ ” (Manriquez v. Gourley, supra, 105 Cal.App.4th pp. 1232-1233.)
On appeal, we review the record to determine whether the trial court‟s findings are supported by substantial evidence. We resolve all evidentiary conflicts and draw all legitimate and reasonable inferences in favor of the trial court‟s decision. (Lake v. Reed (1997) 16 Cal.4th 448.) “ „ “Where the evidence supports more than one inference, we may not substitute our deductions for the trial court‟s. [Citation.] We may overturn the trial court‟s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.” ‟ ” (Id. at p. 457.)
II. Application
Applying the standards articulated in Manriquez, there is no basis for rejecting the trial court‟s ruling. Although the arresting officer‟s testimony and plaintiff‟s BAC results were sufficient to establish the Department‟s prima facie case, plaintiff presented evidence that the instrument used to measure his BAC produced results that were higher than the accurate values. Plaintiff thus rebutted the Department‟s prima facie showing with evidence that the recorded test results were inaccurate. Accordingly, the burden shifted back to the DMV to prove by a preponderance of evidence that the test results were reliable. It did not do so.
The DMV, however, contends plaintiff‟s showing was insufficient because he “produced no evidence that the alleged breath-test variance violated Title 17.” It maintains that the .002 variance shown by the calibration records and Mark‟s testimony are irrelevant as a matter of law because the pertinent regulations allow the use of breath test instruments with accuracy readings of plus or minus 0.01 percent (§ 1221.4, subd. (a)(2)(A)), and testing agencies are required to report results to the second decimal place.
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(§ 1220.4.) Accordingly, the DMV argues, “[t]he .002 variance . . . is legally irrelevant because the statutory scheme allows for variances from the „true result‟ that far exceed .002 percent.”
The Department‟s argument fails because it conflates the regulations governing instrument accuracy with those that establish legal BAC levels for drivers of motor vehicles. Section 1221.4, subdivision (a)(2) addresses the accuracy standards for devices used to measure breath alcohol content and requires accuracy of plus or minus 0.01 percent of the true value. (§ 1221.4 subds. (a)(2)(A).) Pursuant to section 1221.4, subdivision (a)(2)(A)(1), the results of device testing “shall be used by a forensic alcohol laboratory to determine if the instrument continues to meet the accuracy set forth in Section 1221.4(a)(2)(A).” While the regulations require forensic testing agencies to ensure their instruments meet a minimum level of accuracy, nothing in the regulatory scheme precludes a driver from introducing evidence that the instrument used to test his or her BAC deviated by some measure less than .01 percent of the true value. Nor does any regulation bar a trial court from considering such a deviation in determining whether an administrative license suspension is supported by sufficient evidence.
Neither does section 1220.4 suggest any legal barrier to the introduction of such evidence. As noted earlier, section 1220.4 directs forensic laboratories that “[a]nalytic results [with the exception of tissue analysis] shall be reported to the second decimal place, deleting the digit in the third decimal place when it is present.” But this provision controls the reporting of BAC results, not instrument accuracy, and here again, nothing in the statutory language precludes a driver from offering evidence that a testing device deviated by hundredths of a percentage. We therefore disagree that the calibration records were “legally irrelevant.”
The DMV argues alternatively that, even if the .002 variance is subtracted from plaintiff‟s test results, “the math calculation based on it is too speculative to sustain the finding that [plaintiff‟s] actual BAC was .07 percent.” But there was no finding, and no burden on plaintiff to show, that his actual BAC was .07 percent. The burden, rather, was
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on the DMV to prove by a preponderance of evidence that his BAC was .08 percent or higher. The relevant legal question is whether it did so.
We also are unpersuaded by the DMV‟s more general assertion that plaintiff‟s evidence was too speculative to defeat the presumption of validity established by Evidence Code section 664. The Department observes that, because BAC results are reported to only two decimal places, a test result reported as .08 percent could actually represent a BAC anywhere between .080 and .089 percent. Correcting for the device‟s .002 percent variance would only bring plaintiff‟s test results under .08 if his actual BAC was .08 or .081, the DMV argues, so the accuracy records establish a mere two in 10 chance that plaintiff‟s BAC was under the legal limit.
The DMV‟s argument that this degree of probability is insufficient to “show by a preponderance of the evidence (i.e., 51 percent)” that plaintiff‟s BAC was below .08 percent confuses the parties‟ respective burdens. It is the Department‟s burden to prove, by a preponderance of evidence, that a driver was operating a vehicle with a BAC at or over the legal limit. It is not the driver‟s burden to show at least a 50 percent possibility that his actual BAC was below .08 percent. (Manriquez v. Gourley, supra, 105 Cal.App.4th at p. 1232.) Although the DMV met its initial burden when it produced the official blood alcohol test results, plaintiff presented affirmative evidence that the device reported excessive results when tested, and thereby defeated the presumption of validity accorded to official documents under Evidence Code section 664. The burden shifted back to the Department to prove the test was nonetheless reliable. (Manriquez, supra, at p. 1232.) It produced no evidence to meet its burden.
The Department also asserts the trial court failed to consider the PAS results, Officer Gilliam‟s observation of plaintiff‟s impaired driving, the field sobriety tests, and other indicia of intoxication. These arguments focus exclusively on the evidence supporting the DMV hearing officer‟s conclusions, and therefore misapply the substantial evidence standard. As stated, our task is to search for evidence or draw inferences from the evidence supporting the trial court‟s conclusions, not those of the DMV hearing officer. (Lake v. Reed, supra, 16 Cal.4th at p. 457.) Moreover, the basis for suspension
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of plaintiff‟s driver‟s license was his operation of a vehicle while he had a BAC of .08 percent. While the impressions of the officer may have a bearing on plaintiff‟s level of impairment, they have no bearing on the precise level of his BAC. As there is evidence in the record supporting the trial court‟s conclusion, we are bound to uphold it.
DISPOSITION
The judgment is affirmed.
_________________________
Siggins, J.
We concur:
_________________________
McGuiness, P.J.
_________________________
Jenkins, J.
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Trial Court: San Mateo County Superior Court
Trial Judge: Honorable Barbara J. Mallach
Counsel for Appellant: Edmund G. Brown , Jr.
Attorney General of California
Miguel Neri
Supervising Deputy Attorney General
Lyn Harlan
Deputy Attorney General
Counsel for Respondent: James E. Dunn

Monday, October 18, 2010

Contact a California DUI attorney or San Diego DUI Lawyer with DMV options

Dealing with trying to get a lawyer to tell you how to handle your California DUI? Here's what a drunk driving criminal defense attorney must do within 10 days of being arrested in California:

10. If you need to save your driver's license or privileges, your California DUI attorney has only ten (10) calendar days to contact DMV!



Do not schedule yourself. If you contact DMV to schedule a date conflicting with your California DUI attorney's calendar, DMV will not reschedule and you may not get the California DUI lawyer of your choice. There is no rush as long as your California DUI attorney contacts DMV by the 10th day from your arrest.



9. The ten (10) day time limit is computed from the Issue date of the SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE. If time is running out or you are late, contact a California DUI attorney ASAP.



8. This ADMINISTRATIVE PER SE SUSPENSION/REVOCATION ORDER AND TEMPORARY DRIVER LICENSE is the California DMV paper which you should have received.



7. Even if you did not receive this DMV paper, the California DMV will probably take action against your driving privileges.



6. Even if you have a license from another state, and even if the officer did not take your license, that state may also take action against your driving privileges.



5. This TEMPORARY DRIVER LICENSE ENDORSEMENT is valid for only thirty (30) days from the issue date.



If a DMV hearing is requested within ten (10) days, your DMV TEMPORARY will be extended & there will be a stay (delay) of any suspension until the outcome of your DMV hearing is determined.



4. Do not confuse this initial 30 day TEMPORARY DRIVER LICENSE with your court date!

The DMV and criminal proceedings are separate and independent. The outcome of one almost never affects the other. Sometimes the officer or the DMV paper confuses or misleads you to believe that the TEMPORARY DRIVER LICENSE is good "until the court date". If there are approximately thirty (30) days from your arrest date to your court date, this may just be a dangerous coincidence. There usually are months before your DMV hearing takes place.



3. There are three (3) issues at the hearing if you completed a chemical test. (See reverse side of DMV paper.)



Issues are whether the officer had probable cause to stop or contact you or whether the chemical test evidence is beatable.



2. The DMV has the burden of proof to prevail on all three (3) issues. If DMV meets the burden of proof on two (2) issues, you win!



1. All a California DUI - DMV attorney has to do is knock out one (1) DMV issue to save your license & you avoid any reissue fee and/or Proof of Insurance SR-22 filing!






To contact a California DUI attorney or San Diego DUI Lawyer with DMV options:

San Diego DUI Lawyer

Sunday, October 17, 2010

Things are a bit different in Sweden, suggest California criminal defense lawyers who handle DUI cases

It's a typical busy summer night at Banken, the most popular nightclub in Kristianstad, Sweden. The patio outside is uncomfortably crowded and breathing room is hard to come by. Nearly everyone at the club is holding some sort of drink and soon a group of teenagers by the bar begin taking body shots of tequila. Around 12:30 in the morning, throngs of cabs begin to line up along the sidewalk outside. Chances are that very few — if any people at all — drive home tonight. After all, this is Sweden, where the Blood Alcohol Content (BAC) limit for drives is a stringently low .02 g/100 ml.


Compare that to America, where the BAC limit remains at a practically libertine .08. How much is that exactly? According University of Oklahoma Police Department's BAC Calculator, a 180-lb male registers a .08 after consuming six 12 oz. beers or five gin-and-tonics in a span of two hours. Still, having the .08 standard is a legislative improvement. In previous years some states had their limit set at .15. That would be more than eight beers within two hours.


(See the E.R. costs of treating drunk drivers.)

Or look at it this way. In June, a Massachusetts state trooper and father of four was killed after pulling over a driver who reportedly registered a .20 during a breathalyzer exam. Another driver then slammed into the pulled-over car, instantly killing the trooper who was standing next to it. The lawyer for driver of the second car says his client's BAC tested at .07, which is within the legal limit. Nevertheless, both men have been charged with drunk driving, with the second driver receiving the additional charges of vehicular homicide and speeding. Both men have pleaded not guilty to the charges. According to the International Center for Alcohol Policies, only 15 other countries (including Canada and New Zealand) have the same threshold as the United States. Most European nations carry a standard of .05 or lower and a few countries, such as the Czech Republic, have zero tolerance policies.


(Why are more young women involved in deadly drunk-driving crashes?)

According to the National Highway Traffic Safety Administration (NHTSA), 11,773 people died in drunk driving related accidents in the United States in 2008. As these kinds of unnecessary deaths continue happening roughly every 45 minutes, the United States has maintained its .08 standard even as other countries across the world are attempting to lower the permitted BAC for drivers.


In Sweden, which changed its BAC threshold from .05 to .02 in 1990, the results have been dramatic. According to the World Health Organization and European Commission, of road fatalities in Sweden, roughly 16% were alcohol related. In the U.S., 31.7% of traffic fatalities were alcohol related in 2007. Other countries around the world have continued to modify their standards for "drink-driving." In Switzerland, where the limit was reduced from .08 to .05 in 2005, drunk driving deaths instantly declined. France saw similar results when it lowered its limit to .05 in 1995. Changes appear to be on the horizon in other countries as well. For example, in the past few years Denmark has discussed reducing the BAC threshold to .02.


Attitudes toward drunk driving appear to oscillate between countries. People in Sweden take drunk driving laws very seriously, says Eric Larsson, 34, a Stockholm native who moved to London five years ago. Larsson said that he found the laws in England — which allows a .08 BAC — to be far less sensible. "I could never drink two pints of beer then drive home like other people go ahead and do in England," says Larsson, who believes that more countries should adopt the Swedish standard.


There have been some U.S. attempts to toughen the drunk driving laws. Senators Tom Udall, a Democrat from New Mexico, and Bob Corker, a Republican from Tennessee, introduced the ROADS SAFE Act earlier this year. The name of the proposed legislation is an acronym for "Research of Alcohol Detection Systems for Stopping Alcohol-related Fatalities Everywhere." If enacted, it would authorize $12 million annual funding for five years to the NHTSA Driver Alcohol Detection System for Safety (DADSS) program in order to develop technology within vehicles to keep intoxicated individuals from driving (pegged to the current .08 limit). What type of impact would this have? It is estimated that this technology could prevent 8,000 deaths yearly. Based on American averages, that would mean there would be roughly three hours between every drunk driving death, which is better than the current 45 minutes. However, the numbers will always be better in Sweden.

Saturday, October 16, 2010

FREE SAN DIEGO DUI "EVALUATION FORM"

Specially recognized as a Contributor to the California Drunk Driving Law book, here's an attorney who is now the San Diego DUI Editorial Consultant for the most comprehensive reference book for California DUI law.

FREE SAN DIEGO DUI "EVALUATION FORM"

at this online DUI lawyer site



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.



Superb-rated

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



San Diego DUI 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, 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".




San Diego DUI Criminal Defense Lawyer:

San Diego DUI

Friday, October 15, 2010

90 Days Mandatory Minimum Jail if DUI includes under influence of a controlled substance, say California DUI lawyers

California DUI attorneys do everything possible to avoid exposure to this California Code, whenever someone has been arrested for DUI & drugs are potentially involved.

California Health & Safety Code Section 11550

(a) No person shall use, or be under the influence of any controlled substance which is (1) specified in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f) of Section 11054, specified in paragraph (14), (15), (21), (22), or (23) of subdivision (d) of Section 11054, specified in subdivision (b) or (c) of Section 11055, or specified in paragraph (1) or (2) of subdivision (d) or in paragraph (3) of subdivision (e) of Section 11055, or (2) a narcotic drug classified in Schedule III, IV, or V, except when administered by or under the direction of a person licensed by the state to dispense, prescribe, or administer controlled substances. It shall be the burden of the defense to show that it comes within the exception. Any person convicted of violating this subdivision is guilty of a misdemeanor and shall be sentenced to serve a term of not less than 90 days or more than one year in a county jail. The court may place a person convicted under this subdivision on probation for a period not to exceed five years and, except as provided in subdivision (c), shall in all cases in which probation is granted require, as a condition thereof, that the person be confined in a county jail for at least 90 days. Other than as provided by subdivision (c), in no event shall the court have the power to absolve a person who violates this subdivision from the obligation of spending at least 90 days in confinement in a county jail.


(b) Any person who (1) is convicted of violating subdivision (a) when the offense occurred within seven years of that person being convicted of two or more separate violations of that subdivision, and (2) refuses to complete a licensed drug rehabilitation program offered by the court pursuant to subdivision (c), shall be punished by imprisonment in a county jail for not less than 180 days nor more than one year. In no event does the court have the power to absolve a person convicted of a violation of subdivision (a) that is punishable under this subdivision from the obligation of spending at least 180 days in confinement in a county jail unless there are no licensed drug rehabilitation programs reasonably available.


For the purpose of this section, a drug rehabilitation program shall not be considered reasonably available unless the person is required to pay no more than the court determines that he or she is reasonably able to pay, in order to participate in the program.

(c) The court may, when it would be in the interest of justice, permit any person convicted of a violation of subdivision (a) punishable under subdivision (a) or (b) to complete a licensed drug rehabilitation program in lieu of part or all of the imprisonment in the county jail. As a condition of sentencing, the court may require the offender to pay all or a portion of the drug rehabilitation program.


In order to alleviate jail overcrowding and to provide recidivist offenders with a reasonable opportunity to seek rehabilitation pursuant to this subdivision, counties are encouraged to include provisions to augment licensed drug rehabilitation programs in their substance abuse proposals and applications submitted to the state for federal and state drug abuse funds.


(d) In addition to any fine assessed under this section, the judge may assess a fine not to exceed seventy dollars ($70) against any person who violates this section, with the proceeds of this fine to be used in accordance with Section 1463.23 of the Penal Code. The court shall, however, take into consideration the defendant's ability to pay, and no defendant shall be denied probation because of his or her inability to pay the fine permitted under this subdivision.


(e) Notwithstanding subdivisions (a) and (b) or any other provision of law, any person who is unlawfully under the influence of cocaine, cocaine base, heroin, methamphetamine, or phencyclidine while in the immediate personal possession of a loaded, operable firearm is guilty of a public offense punishable by imprisonment in a county jail for not exceeding one year or in state prison.


As used in this subdivision "immediate personal possession" includes, but is not limited to, the interior passenger compartment of a motor vehicle.


(f) Every person who violates subdivision (e) is punishable upon the second and each subsequent conviction by imprisonment in the state prison for two, three, or four years.


(g) Nothing in this section prevents deferred entry of judgment or a defendant's participation in a preguilty plea drug court program under Chapter 2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal Code unless the person is charged with violating subdivision (b) or (c) of Section 243 of the Penal Code. A person charged with violating this section by being under the influence of any controlled substance which is specified in paragraph (21), (22), or (23) of subdivision (d) of Section 11054 or in paragraph (3) of subdivision (e) of Section 11055 and with violating either subdivision (b) or (c) of Section 243 of the Penal Code or with a violation of subdivision (e) shall be ineligible for deferred entry of judgment or a preguilty plea drug court program.