Wednesday, June 27, 2012

Ever wonder why DMV almost never finds a driver's DUI expert credible at a California DMV license hearing?

California DMV Manual witness examination language is published in this new Article by The San Diego County DUI Law Center. This section deals with examples of language designed to attack the driver's expert and to put in a written decision to suspend:

"Expert Witness Credibility

The hearing officer should watch for signs of partiality in the expert’s testimony related to their credibility as a witness. Impartiality is not always present in expert testimony.

When it is not evident, the testimony may be suspect to credibility considerations. (See Section 12.173 Resolving Credibility) It may occur that the testimony is credible, but incomplete during cross-examination. The hearing officer needs to ask questions that may have gone unanswered during the prior examination. Ask questions to elicit a description of any possible “untold” facts.

• Ask questions that may reveal whether the expert's knowledge of the driver's drinking pattern and BAC calculations are based upon hearsay.

• Distinguish if the expert's testimony presented as fact is actually speculation as to what may have occurred during the chemical testing.

• Fully explore any tendency of the expert to advocate the attorney's case and note this for the record. You may use this in a finding of fact in your report as a basis of dismissing the expert's testimony, but it must be a matter of record, and not from your personal knowledge.

Tuesday, June 26, 2012

San Diego DUI lawyers may attack DMV evidence by showing a failure to follow any standard of Title 17 of California Code of Regulations, thereby rebutting the presumption of reliability and shifting the burden to DMV

A San Diego DUI defense attorney in this video may rebut the official duty presumption generously enjoyed by DMV. The lawyer may be able to demonstrate a Title 17 California Rules of Regulations violation which could be a failure to follow any standard in any respect.

If the attorney does so, the State of California has a burden to show the (breath or blood) test results are (somehow still) reliable (if possible but unlikely) despite the Title 17 violation.

This new San Diego County DUI Law Center California DMV Hearing Officer Manual article quotes DMV's Manual regarding such a critical rebuttal of the issues as well as Attorney Stipulations and Lawyer Objections.

For example, most important California DMV documents are subject to a DUI defense attorney's objection. Section 1280 of California's Evidence Code – Record by Public Employee Exception to the Hearsay Rule - permits admissibility of any such document if these 3 requirements are shown.

The writing was:

a. made by and within the scope of duty of a public employee; AND

b. made at or near the time of the act, condition, or event; AND

c. the source of information and method and time of preparation were such as to indicate its trustworthiness.

Thursday, June 21, 2012

DMV's new Manual makes it very easy & routine for DMV to grant itself a "continuance" when not ready in a DUI Administrative Per Se Hearing as it continues to generally try to deny attorneys' requests for continuances



DMV's Manual for Hearing Officers previously frowned upon arbitrary, capricious or baseless continuances conveniently referred to by DMV as "reconvenes."

Prior to the 2011 update, DUI attorneys from San Diego to Eureka asked DMV to take official notice of its Manual. Lawyers successfully contended DMV must deny continuances requested by the Hearing Officer (who is both judge & prosecutor)upon DMV being unable to present a prima facie case. If no “good cause,” no continuance permitted!

Continuances used to be based on what may even resemble fair and rationale bases.

Their old manual used language like a non-appearance of an essential witness “because of an unavoidable emergency” or a driver appearing without a defense attorney for the hearing but decides to get a lawyer.

Nowadays, California DMV routinely denies DUI defense lawyers' requests to continue yet liberally granting itself continuances if wanted or needed.

This updated 2011 California DMV’s Manual apparently cut out the reasonable criteria for determining the granting or denying of continuances in DUI APS cases. Now San Diego DUI attorneys often experience an extremely broad discretion for DMV granting itself virtually any “acceptable reason” or justification for a continuance, however "abstract."

Tuesday, June 19, 2012

Every person accused of DUI in California is entitled to a fair trial and a quality DUI criminal defense lawyer, even employees of California's prosecuting District Attorney office

Anyone can be arrested for DUI: blue collar, white collar, judges, doctors, lawyers, mechanics, pilots, military, office employees, drivers, out of state people, even... prosecutors...

Wait a minute, even a government worker for the prosecutor's office can be arrested for drunk driving in California?

Yes.

And every accused is entitled to a fair trial and to be represented by competent criminal defense attorneys, San Diego DUI lawyers remind.

One District Attorney's Office employee in Humboldt County was acquitted yesterday of California DUI charges.

Prosecutor Office's Legal Business Manager Jeannie Duncan was popped for drunk driving on April 30, 2011 in Eureka, California.

She was prosecuted by the California Attorney General's Office. Now Duncan has been acquitted by a Humboldt County Superior Court California DUI jury.

Placed on paid administrative leave 2 days after the drunk driving arrest, she made a claim for damages against the county claiming she was retaliated against for questioning a host of nefarious activities in the DA's Office.

Now she is a free citizen!

Monday, June 18, 2012

What does California DMV tell its Hearing Officers about "Refusal Cases" - here's an Introductory article by San Diego DUI attorney Rick Mueller

Refusal drunk driving arrests trigger a huge suspension or revocation action by the California DMV. The DUI officer must tell the accused or drive a number of critical things, attorneys emphasize. A San Diego APS refusal hearing are complex even for defense lawyers.

Rick Mueller of the San Diego County DUI Law Center, a PLC, published an article on the DMV's introduction to the refusal admonition or admonishment, including various circumstances and cases. Here's the text.

Sunday, June 17, 2012

7 San Diego folks were taken to jail Friday for DUI & San Diego California DUI checkpoint in the 4000 block of Sports Arena Boulevard of Midway District resulted in ZERO dui arrests, lawyers are told

7 San Diego folks were taken to jail Friday for DUI, lawyers learned on Father's Day. DUI patrols in Hillcrest and Pacific Beach stopped & detained for drunk driving investigations.

Friday Night's San Diego California DUI checkpoint in the 4000 block of Sports Arena Boulevard of Midway District resulted in ZERO dui arrests, attorneys announce. Fresh donuts and stale coffee were passed around by a small fortune of overtime seeking cops who trapped nine hundred vehicles in the drunk driving checkpoint between 9:00 and 11:30 pm.

This map contains the San Diego California DUI roadblocks & drunk driving checkpoints and is sponsored by San Diego County DUI Law Center, a professional law corporation owned by attorney Rick Mueller.

Saturday, June 9, 2012

California debates what is more dangerous: drunk driving or DUI drivers or the new dangerous driving: "Distracted Driving?" San Diego criminal defense attorneys inquire

California debates what is more dangerous: drunk driving or DUI drivers or the new dangerous driving: "Distracted Driving?" San Diego criminal defense lawyers are asked.

The federal government yesterday delivered $1.5 million to Sacramento California for more DUI cops & ads which say: "Phone in One Hand, Ticket in the Other," attorneys are told.

Worse than Drunk driving, arguably distracted driving increasingly seems to be more risky behavior.

How does California know? Folks are dying from it.

Here's some numbers: 3,092 people were killed in 2010 from distracted driving collisions, which is 1 in ten road deaths, per NHTSA. Cellphone use factored in twenty-four percent of all accidents that year.

Just thirty-nine states in the U.S. now prohibit texting while ten states ban hand-held cellphone use while driving.

California makes it illegal to text or use hand-held cellphone while driving. 10.8% of California drivers are using cellphones at any given hour during the day.

There's a stigma about DUI in California but a similar phenomenon has not occurred with distracted driving. Consequently folks do not believe it is a problem. In reality, it is more dangerous than most DUI driving. It certainly results in 1,000's of annual dead bodies.

California's federal cash means billboards & ads plus $$ for more distracted driving patrol officers only looking for "DD" on week periods in December, February or March, and June, say state attorneys.

Californians are asking legislators for heavier penalties for DD and DUI offenders, lawyers are told.

Friday, June 8, 2012

Can DMV use the results of a Preliminary Alcohol Screening ("PAS") Test [hand-held breath test gadget] in an excessive BAC DUI administrative hearing action against San Diego drivers, attorneys are asked?

When folks may lose their driver's license based on a hand-held gadget number, that is pushing it. Especially when the numerical result is not necessarily reliable or trustworthy. California DMV knows this. San Diego DUI attorneys know this, too and provide valuable resources to assist other criminal defense lawyers and drivers in California facing a possible loss of driving privileges.

The teaching DMV Manual tells hearing officers what to do to try to lay a foundation fo the admission into evidence of the PAS number in a California or San Diego Preliminary Alcohol Screening (PAS) Test. These actions are only mentioned by DMV as applying to (1) minors or (2) those folks on California DUI probation.

The article publishing the DMV manual on PAS tests is set forth on the website of San Diego County DUI Law Center. This manual does not refer to any right of a hearing officer at DMV to use the PAS results in actions when the driver is more than 21 years old, San Diego DUI Lawyer Rick Mueller points out. So criminal defense attorneys throughout California have the right to object to any DMV attempt to use the PAS number in an over 21 administrative hearing excessive BAC case.

Thursday, June 7, 2012

Urine Testing in California DUI cases is very limited as the driver cannot request it unless breath and blood tests unavailable and must take it if DUI cop suspects drugs

There are some major problems with urine testing in California DUI cases, say attorneys. For example, if the driver did not void his bladder, the sample is not a good sample for testing. Both federal and state officials have criticized the use of urine testing in drunk driving cases, lawyers know.

San Diego County DUI Law Center's Rick Mueller writes about the California DMV Manual which essentially limits urine testing to when the breath machine is broke and there is no vampire available to draw blood, or when the DUI cop suspects drugs.

Tuesday, June 5, 2012

When California DUI attorneys want insight into handling DMV hearings, they can turn to criminal defense attorney Rick Mueller at San Diego County DUI Law Center

When California DUI attorneys want insight into handling DMV hearings, they can turn to criminal defense attorney Rick Mueller at San Diego County DUI Law Center.

For 29 years, Rick has helped other lawyers fight the DMV and helped people with their driving privileges.

In this newly published series of California DUI DMV videos filmed in the San Diego Superior Court, lawyer Rick Mueller goes over the basics of defending an administrative per se hearing, teaches the finer points of various strategies and tactics, attacks DMV's San Diego drunk driving documents, discusses procedures from A to Z and beyond (petitions for writs of mandamus / lawsuits vs. California DMV), takes questions from San Diego criminal defense lawyers in attendance, lectures on helpful tips, and provided numerous written materials geared towards winning DMV hearings.

Monday, June 4, 2012

When Breath Testing Standards are not followed in California DUI cases, DMV must take no action against a driver's license, lawyers point out using DMV's own Manual

When California DMV offers breath test BAC evidence which a DUI defense attorney then shows is not in compliance with official standards, the burden shifts to DMV to show the test is reliable despite the violation. Following the law, DMV should set aside the license suspension action. San Diego County DUI Law Center Defense Attorney Rick Mueller published this new Article summarizing the language in California DMV's Administrative Per Se Driver Safety Manual for DUI / Excessive BAC cases.

The relatively new case provided in DMV's updated APS Manual which has DMV on its heels is Brenner v. DMV (2010) 189 Cal.App4th 365.

As DMV states in its Manual, "the appellate court held that breath test results that were taken from a device that was reading high, but within the deviation allowed by the regulations, were insufficient to establish that the driver had been driving with a 0.08% BAC.

In that case, two samples of the driver’s breath showed 0.08% BAC.

At the APS hearing, the driver presented a printout from the forensic laboratory showing that the breath testing instrument was yielding readings that were .002 percent high around the time of Brenner’s arrest.

Relying upon the information contained in the printout, the driver’s expert witness, a forensic toxicologist opined that because of that variance, Brenner’s BAC did not meet the legal threshold of 0.08% and that his actual BAC level could have been 0.078%.

The department did not rebut the argument.

The court found, 'Therefore any calibration error that causes the instrument to read high necessarily drops the true test results below the 0.08% threshold' and 'the Department does not meet its burden of proof.'

Based on the Brenner decision, California DMV's Manual understands "the department may have difficulty sustaining any license suspension in cases where there is evidence that the testing device is producing 'high' readings that are within the permissible variance."

Saturday, June 2, 2012

Unsworn California DUI reports or San Diego drunk driving-related reports not made at or near the time of the event – whether blood test report or DUI arrest report – are not lawfully admissible and may not be used as a basis to suspend one's license, attorneys remind

California DMV hearing officers are told by Sacramento to rule on documentary objections in license suspension (APS) hearings, relying on Glatman v. Valverde and MacDonald v. Gutierrez, San Diego County DUI Law Center's attorney Rick Mueller notes in this publication featuring DMV's own APS hearing manual.

California's Glatman case involved one's blood drawn 1 hour after a DUI arrest, a blood sample analyzed same day as arrest & a day later retested by another forensic alcohol analyst. The analyst's certification of the blood test results revealed it was dated 1 week after the blood was drawn. The California court ruled the blood report was not prepared at or near the time of the analysis, an absolute prerequisite for admissibility of the drunk driving test record as a legal exception to the hearsay rule per section 1280(b) of California's Evidence Code. Therefore, the DUI report was not allowed to be used as evidence to prove the driver's blood alcohol content.

Another DUI court notes, in addition to the officer’s sworn DUI statement, California DMV can also use another accompanying unsworn report if it meet the conditions for admissibility (under California Evidence Code section 1280).

In sum, an unsworn San Diego or California DUI report not legally admissible may not be used to supplement or explain the officer’s sworn statement.

Rationale: unsworn California or San Diego drunk driving-related reports not made at or near the time of the event – whether blood test report or DUI arrest report – are not lawfully admissible.

Friday, June 1, 2012

Donuts & Coffee for San Diego California DUI officers making drunk driving arrests this weekend, lawyers are told

Tonight is Free Donut Night for all California DUI officers, attorneys are told. Free Donuts and coffee are offered all night for those San Diego drunk driving cops who stop California drivers and make arrests. Beware drivers, warn lawyers. Drive safely. Drink responsibly. Have a designated driver. Watch out for checkpoints. class="separator" style="clear: both; text-align: center;">