If arrested for a DUI, you know the odds are stacked up against you as these are very difficult cases for a citizen’s lawyer to prevail on. 

In recent years, the trend has been for the legislature and the courts to take tough stands on Drunk Driving.  The lengths at which MADD will go knows no boundaries.  Rights of the accused have been diminished.  In some cases, attorneys’ defenses have been entirely taken away. 

Until now.

The Four-Headed DUI Monster “PPDJ” has taken a few hits this year. 

By way of background, PPDJ’s 4 heads are the:

1)  Police
2)  Prosecutor
3)  DMV
4)  Judge

A DUI arrest means the person was first arrested by the Police, charged with DUI by the Prosecutor, suspended by the DMV and presided over – and often sentenced by – the Judge.

This usually means one DUI criminal defense lawyer deals with all 4 heads at one time or another.  The few setbacks of the monster included two victories by premier San Diego DUI criminal defense attorneys.

A) The first – Lack of Accuracy / Margin of Error – case held:

Motorist prevails at DMV hearing when there is evidence that blood alcohol concentration (BAC) testing device was producing readings .002 percent higher than a calibrated sample rebutted the prima facie showing by Department of Motor Vehicles (DMV) that motorist’s blood-alcohol level was .08 percent or higher based on two identical readings of .08 percent and the presumption that an official duty has been regularly performed, thus shifting the burden back to DMV, even though a test result reported as .08 percent could actually represent a BAC anywhere between .080 and .089 percent.

Nothing in the regulatory scheme requiring forensic testing agencies to ensure their blood alcohol concentration (BAC) testing instruments meet a minimum level of accuracy 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, or precludes a trial court from considering such a deviation in determining whether an administrative license suspension is supported by sufficient evidence. 17 CCR § 1221.4(a)(2).  The regulation requiring blood alcohol concentration (BAC) test results to be reported only to the second decimal place does not preclude a driver from offering evidence that a testing device deviated by hundredths of a percentage, in challenging an administrative license suspension. 17 CCR § 1220.4.

[Brenner v. Department of Motor Vehicles, 189 Cal.App.4th 365, 116 Cal.Rptr.3d 716, 10 Cal. Daily Op. Serv. 13,284, 2010 Daily Journal D.A.R. 16,015 (Cal.App. 1 Dist. Oct 18, 2010) (NO. A126745), review denied (Feb 02, 2011)]

B) The second – California DUI Checkpoint – case held:

The Prosecuting attorney did not sustained the state’s burden of proof in establishing the California DUI checkpoint factors under Ingersoll v. Palmer (1987) 43 Cal.3d 1321 as to at least (i) the role of supervisory personnel in prescribing the procedures to be used at the checkpoint, (ii) the rationale for selecting the particular location used for the checkpoint, (iii) the length of detentions, and (iv) advance publicity.  Also noted was (v) the thin evidence of neutral criteria used when fewer than five cars were pulled over at a time.

[People v. Walter Alvarado, Filed 2/7/11 CERTIFIED FOR PUBLICATION from the Superior Court of California, County of San Francisco, Case No. 6591, Superior Court No.  2404632]

C)  The third – DMV procedural – case held:

The driver’s due process rights were violated by San Diego DMV’s Hearing Officer Jacqueline Denney because he was deprived of the opportunity to present a meaningful defense to the DMV’s proceeding to suspend his driving privilege.

Petrus’s DUI/DMV attorney received the blood test results only minutes before the commencement of the hearing at the beginning of which he objected to receiving discovery on the day of the hearing. The blood test showed a purported BAC of .18%.  The hearing officer asked the DUI lawyer if he was ready to proceed and he said yes. The hearing officer then identified the exhibits she intended to introduce into evidence and asked if the driver objected. The DUI lawyer objected to the blood test report on the basis of discovery rules violation. The hearing officer overruled the objection and admitted the report into evidence.  The DUI attorney then asked for a continuance, which was denied because counsel made no offer of proof as to why additional time and a continuance was necessary.

No offer of proof was needed as the court overturned the suspension. Due process requires full and fair administrative hearings that provide drivers a ” ‘meaningful opportunity to present their case.’ “  Government Code section 11513 (b) states that each party has the right to rebut the evidence against him or her. Petrus had sufficient time to review the number indicating the blood alcohol content, but not an opportunity to rebut that evidence.

The court noted that in Glatman v. Valverde, the appellate court concluded the trial court did not abuse its discretion in finding that the forensic report was not prepared “at or near the time of the recorded event” because the record contained no support for the assertion that the analysts promptly entered the test results into the computer database, thus the suspension was set aside.  [forensic report dated a week after the arrest].)  Assuming arguendo Petrus had the opportunity to rebut, he is only required to present evidence that official standards were not observed similar to the licensee in Glatman, not the “marshalling of complex scientific evidence” to possibly set aside his license suspension.

[Edmond Petrus v.STATE OF CALIFORNIA DEPARTMENT OF MOTOR VEHICLES, No. D057523. San Diego Super.Ct.No. 37--2009--00101417--CU--WM--CTL, April 7, 2011.]

In sum, now with Brenner, Alvarado and Petrus, the Four-Headed Prosecutorial DUI Monster can be better kept in check.

Originally published here.

Los Angeles DUI defense attorneys are faced with a new challenge in defending drunk driving due to new attempts by California police authorities to fight DUI.  Police Departments throughout California are attempting to use social media and online services to make those who get arrested for DUI embarrassed.  How do they propose doing it? Criminal Attorneys are informed that their client’s name and photo may be placed on social media sites such as facebook, myspace and LinkedIn.

Fighting DUI cases in California has become increasingly difficult for Drunk Driving Defense Attorneys.  This is just another reason why DUI lawyers must take every drunk driving arrest, especially those that involve bodily injury more seriously.

Privacy advocates must work in conjunction with criminal attorneys to curb the overly enthusiastic efforts of Los Angeles Police Department to fight DUI by causing unnecessary shame and embarrassment, when other means of fighting DUI is readily available.  Police Department defends its proposed action of placing mug shot of those who get arrested more than once for driving under the influence of alcohol on sites such as Facebook and Myspace, by arguing that such action “saves lives”.  It is arguable, however, how causing shame and embarrassment by exposing such individuals to pubic view will save lives. To what extent could law enforcement authorities invade one’s privacy?  Is this the beginning of the creation of a database of DUI convictions with their private information and photos available for everyone to see?

Are the authorities attempting to fight DUI cases by making DUI an equivalent of sexual predators whose name are readily available online?  To propose that the photograph of everyone who gets arrested for Drunk Driving must be immediately place on social media sites clearly violates the constitutional rights of our private citizens.  Criminal Defense Attorneys have long fought for our citizen’s rights to privacy and have played a major role in creating a balance between privacy rights of our citizens and the government’s right to protect the safety of the public.  In the context of California Drunk Driving Laws, and for all intents and purposes in the whole United States, there should not be an assumption that everyone who gets arrested for DUI will in fact be convicted of the crime.  Also, many times a conviction is the result of plea negotiations between criminal attorneys and prosecutors in DUI courts, where there is not convincing evidence of the arrestee’s guilt.

To cause such embarrassment to DUI arrestees by exposing them to ridicule and shame on social medial sites California Law Enforcement Authorities are clearly invading our citizen’s privacy rights, their right to be secure in their property and belongings, and the presumption of innocence until guilt is proven.

The presumption of innocence does not change for repeat DUI offenders.  There is no question that drunk drivers in California are responsible for a large percentage of vehicle related deaths each year.  However, defense attorneys argue that the constitutional rights of private citizens should not be abridged in order to curtail the interest of those who intend to drink and drive.  We could not correct a wrong with another wrong.  If we don’t stop this, next thing you know, they will make the license plate of drunk drivers a different color so that everyone knows they have had a DUI, or they could make them place a red flag in their yard, and better yet write it on their forehead “drunk driver!”

Multiple Police Departments in California have pressed the issue of placing mug shots of DUI arrestee online.  This is done in an increased push by law enforcement authorities and various non-profit organizations and anti DUI advocates who have lost loved ones in drunk driving accidents.

DUI Defense requires specialized Knowledge and skill. With the help of our trained attorneys who aggressively defend Drunk Driving charges, avoid jail time and license suspension. Get the most professional Drunk Driving defense in Los Angeles you deserve. 

At the Law Offices of Tony M. Seyfi, criminal defense attorney, our goal is victory for our clients in defending DUI cases, and we are confident of our defense strategies.  If you would like to discuss your DUI case, call us today for a FREE CONSULTATION and case analysis.

Law Offices of Tony M. Seyfi, Los Angeles, California.  Call:  866-533-3363

Originally published here.