On Vacation, I Got a DUI Ticket in San Diego! How Do I Hire a Local Criminal Lawyer ?
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On Vacation, I Got a DUI Ticket in San Diego! How Do I Hire a Local Criminal Lawyer ?
California Caffeine DUI vs. Stoned Drivers Safer than Drunk Drivers Says the Fed
So poor Joe Schwab is now accused of DUI in California after an “undercover” ABC agent pulls him over in her unmarked car for driving erratically reports ABC news. Only the ABC “agent” is employed by the California agency known as Alcohol Beverage Control, not ABC news. And, oh yeah, poor Joe Schwabb wasn’t drunk, wasn’t stoned, wasn’t under the influence of a scheduled controlled substance. Joe allegedly drank too much “joe.” Coffee is the cup Joe Schwab according to the “Guardian” that picked up in a story almost a week ago from Solano County outside of the Bay Area where Vallejo is the county’s biggest city.
It took nine months before Joe Schwab was charged for driving while impaired on caffeine. It seems hard to believe and neither attorneys Dan Smith or Jon Pettis, of San Diego Defenders APC, had ever heard of such a thing in their combined experience of nearly 50 years. “We have seen cases where a client’s PAS breathalyzer (hand-held breathalyzer) was 0.00% and our client then chooses a blood test and returns positive for prescription or other drugs, but we have never seen such a desperate attempt by the prosecution that they would send out for second test for anything, and I do mean anything!” said DUI attorney Dan Smith.
“What makes this case extremely unusual is that an unmarked ABC agent pulled over a driver for allegedly cutting her off and erratic driving. When all the tests came back negative, the blood was sent to Pennsylvania for a screen for ANY type of drug and all they came up with was caffeine.” So, 9 months after his arrest Joe Schwab is facing DUI charges. Attorney Jon Pettis laments that we would love to defend Joe Schwab in that DUI case.
But poor Joe’s DUI case brings up a question that NHTSA will be wrestling with for a long time. How much of anything is enough to impair a driver. Marijuana is now as legal as coffee. So the ongoing question will, no doubt, make many research institutes happy about the grants they will need to opine on the matter.
Ever since medical marijuana laws started to be passed, prosecutors and law enforcement have been up in arms about the threat of more stoned drivers and the assumed risk they are. With several states, including California, now legalizing pot outright, that panic has grown. It turns out, it may not be all that bad.
According to a study just released by the National Highway Traffic Safety Administration (NHTSA), a Federal agency that is usually very anti-any impaired driving, drivers who tested positive for marijuana were no more likely to crash than those who hadn’t used any drugs or alcohol prior to driving.
This study confirms research done years ago that showed drivers with small amounts of THC9, the active ingredient in pot, in their system were sometimes statistically safer drivers than people with no alcohol or drugs in their system whatsoever.
This recent study by NHTSA didn’t just stop with marijuana. The researchers found that along with marijuana, other legal and illegal drugs like stimulants, painkillers and anti-depressants, there was no statistically significant change in the risk of a crash caused by using the drugs before driving. However, for alcohol levels of 0.05% or more, the driver was seven times more likely to crash.
NHTSA said it pretty clearly, “At the current time, specific drug concentration levels cannot be reliably equated with a specific degree of driver impairment.”
The reason this is a big deal is because some States are setting per se legal limits for THC( like they have for alcohol. Almost everyone knows that driving with a blood alcohol level of 0.08% or more is illegal. Colorado, for example, when it legalized pot, made it so that it was illegal to drive if you have 5 nanograms of THC9 in your system. California is considering doing the same thing.
The problem is, while research shows most drivers are unsafe at 0.08% blood alcohol content, the research about marijuana and other drugs cannot come up with any magic number.
The reality is that some drivers after recent pot use could be below or above 5 nanograms of THC( in their system and be dangerous and too impaired to drive. But, someone who is not high could still have well above 5 nanograms of THC9 in their system and be perfectly safe to drive. That becomes even more true for people who smoke pot frequently. THC can stay in fat cells for days or weeks, especially if it is used fairly regularly. So, someone could be totally sober, no THC affecting their brain, but, under the per se laws, still be found guilty.
You can also purchase Judge’s Top Secret Guide to Beat a DUI by Hon. Ralph G. Smith and Daniel M. Smith, Esq. at http://ow.ly/grTI307z53N
A Police Officer Told Me To Use Uber, Lyft or Sidecar and Later I Got a DUI?
Lawyers who handle DUI’s are seeing it more and more. People plan to go out and use Uber or Lyft or Sidecar or any of the other ways of getting around, and then later decide to drive home and get arrested for DUI. Sometimes a cop might tell a client to use one of the shared ride apps. The client then goes to a friend’s house after an office holiday or Christmas party, sleeps it off and gets up to go get their car. Just like the cop told them to do! Problem is…client gets pulled over that morning and has a BAC well over the .08% legal limit to drive.
Or … Lots of times they all meet at one friend’s house and Uber or Lyft or Sidecar from there and plan on crashing at the friend’s house. Inevitably, somebody decides they would rather get home because they figure they are safe to drive. Next thing they know, they are being pulled over by the cops … and the Jack Daniels “cologne” remark does not amuse the police officer.
Well, you probably guessed it! Our client comes to us and declares that they did exactly as the police officer directed them to do. Get a safe “shared ride app” ride home to sober up before retrieving the car. So what went wrong (besides the usual whoops, did I just say that to the boss after imbibing the holiday cocktails a little to freely?) What happened that I would end up with a DUI ticket after the company holiday party?
There is actually a good explanation for this “white elephant” of a problem. It is called the Mellanby Effect. We tend to feel the effects of alcohol more when our blood alcohol level is rising than we do when it is coming down otherwise known as “burning off the booze.” Experts are not exactly sure why this happens. The best guess is that it is, as Einstein would say, “relative.”
That is, when your alcohol level is going up, you’re feeling better and better and you are enjoying yourself more. When your alcohol level is coming down, you are getting more and more sober and you also add in the anxiousness and desire to get home into the equation. So, we all try to be responsible and wait until we feel sober to find out car and drive home. But, it is “relatively” easy to still be over the legal limit if you had a really good time at the holiday party.
If you started off using a ride sharing app, but, then got caught driving home and arrested for a DUI, you need to hire a DUI lawyer who knows how to use the fact you had been responsibly using a ridesharing app (not to mention the prosecutor may be hip enough to use one as well) in the negotiations in your DUI case. Depending on the facts of your case, it can mean the difference between getting a good deal and avoiding the DUI or in how much punishment you end up with. Remember, with the use of Livescan background checks these days, a DUI may cause more problems than you bargain for.
Far too often we at San Diego Defenders hear clients say “I was guilty anyway, so I just pleaded guilty with the Public Defender.” That can be a HUGE mistake. Our Constitution was designed to protect us, and if there is a possible defense to a DUI charge, we are committed to finding it and using it to our clients benefit. A benefit that may not be realized until years down the road when our client is applying for a new job!
Governor Brown Signs Bill to Protect Californians from Civil Forfeiture Abuse
California now has some of the most far reaching protection against law enforcement seizing property and money. Starting January 1, 2017, for there to be a civil forfeiture of property or money in most cases, the government will first have to obtain a criminal conviction before they can keep the property or money.
Prior to this new law being passed, there were very few restrictions on State law enforcement regarding forfeiture cases. Often times, when police make drug arrests, along with evidence they also seize any money they find assuming it had to do with drug dealing. In 1994, California set up rules concerning these cases, including that the government had to prove by clear and convincing evidence that the property seized was tied to the illegal activity.
In response, to get around the limitations, State law enforcement would turn the money over to Federal officials for Federal forfeiture, thereby sneaking around the State rules. Then, State law enforcement would get some of the money back from the Feds.
The new law works to prevent this from happening. It also now requires the State to get a conviction before it can profit from the property or money seized in many cases. The new law will require a conviction before any forfeiture where the sized items were up to $40,000.00 or other property like cars and houses regardless of their value. Previously, there was only protection for up to $25,000.00.
Furthermore, in cases where the Federal forfeiture process is used, the new law prevents law enforcement from making any profit from the seized property or money unless there was a conviction in an underlying cases involving up to $40,000.00 or cars or houses. The reason for the limit of up to $40,000.00 is because law enforcement and prosecutors originally were against the bill. So, it was negotiated that civil forfeitures over $40,000.00 would not need to have a conviction. IT IS IMPORTANT TO KNOW THAT EVEN THOUGH THAT PROTECTION DOESN’T EXIST, PEOPLE CAN STILL FIGHT THE STATE KEEPING THEIR SEIZED PROPERTY AND MONEY. Law enforcement had made it a practice to seize as much valuable property as they could when a drug arrest was made just on the assumption that the property was tied to the illegal activity. Sometimes it wouldn’t even be the property of the person arrested. They did so, not because they were sure the property was from illegal profits, but, rather so they could cash in and profit from the seizures.
The new bill means to stop that abuse. The bill was widely supported and eventually even the opposition of prosecutors and law enforcement was dropped. Part of the groundwell of support for the new change came after areport, “Above the Law: An Investigation of Civil Asset Forfeiture Abuses in California” was published outlining how law enforcement was essentially stealing and profiting from seized property and money without proof it was from an illegal activity.
San Diego Defenders (619) 258-8888
San Diego Judge Refuses to Lose His Bias Now Finds a Formal Complaint
Is it about time? It was reported today that a San Diego Superior Court Judge Gary Kreep has had a formal complaint made against him that could lead to his removal from the Bench.
The Complaint details how Kreep repeatedly made racially and sexually charged comments in court and some that were both racially and sexually charged, like speaking to a Taiwanese prosecutor about Chinese prostitutes.
The Complaint also includes information on how then candidate Kreep did not end his political activities as required of persons running for Judge.
Kreep was also a “birther”, a person who was claiming President Obama was not a natural born United States citizen and falsified his Hawaii birth certificate. Maybe that should have been enough to bar him from becoming a Judge if it demonstrated that he could not be objective when weighing facts in controversy. After all, that IS what a judge is supposed to do. And lawyers who appear before judges often will openly express a concern regarding openly biased decisions.
San Diego Defenders has openly commented that we believe that being a “former prosecutor” is a potential detriment to makings of a good criminal defense and DUI defense attorney. That is to say, if you are a prosecutor and your job is to convict those charged of a crime, it is a hard habit to shake once you become a defense lawyer. Arguably, it is the prosecutorial bias.
The “bias argument” can be made against judges that are former prosecutors. It is hard to change your prosecutorial bias overnight and indeed it does take some –re-programming! This leads to the same argument against “birthers” running for public office. Main stream media is reminding Trump and Clinton in this election season that they both had a “birther bias”. Bias is almost always an issue during an election.
Judges are elected (despite many conveniently being appointed months before the election where they run as a “sitting judge”). The bias many voters have is to elect the so-called “sitting judge” although the voter is unaware that the judge had been sitting for only a few months. How then did Judge Kreep slip in on the bench? He was elected on one of the few political races each decade in which there was no sitting judge previously appointed. Lawyer Gary Kreep ran against lawyer Garland Peed. That’s right, it was “Kreep vs. Peed” a memorable matchup! Birther Kreep won and now it seems to be haunting him just before Halloween 2016.
The “birthers” never claimed that Obama’s mother was not a United States citizen. Birthers only claimed Obama was born outside the United States and therefore did not meet the constitutional definition of a natural born citizen. Setting aside the fact that nearly every legal scholar who has studied the issue has concluded that if a person is born to a United States citizen, they then are a natural born citizen (Just ask Ted Cruz, born in Canada or John McCain born in Panama ), to push the birther concept may show a lack of judgment. And, to be fair, both Trump and Clinton appeared to have made the same argument. That is not what this article is about.
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President….” This is from Article II, Section 1, Clause 5 of the United States Constitution. Whether or not a person is natural born or not is only significant for one reason, whether they can become President. There is no other use or significance for this term.
So, a “birther” was asking us to believe that back in 1961, when many Black Americans were prevented from even voting, the Civil Rights Movement at its height, racism and discrimination everywhere, Obama’s mother decided to fake his birth certificate so he could be a citizen and perhaps President someday.
Anyone can see how Judge Kreep got off to a bad start. But to ignore his duty to set ANY BIAS aside as a judge seems to have been his undoing and the basis on the serious challenge he now faces in remaining on the bench.
San Diego Defenders (619) 258-8888
Ignition Interlock Problems
With California just passing a law requiring ignition interlock devices for all DUI convictions, it might be useful to look at what problems have arisen around the Country in other States that require ignition interlocks.
Ironically, if you Google basic questions about ignition interlock devices, you are hit by loads of ads for interlock companies and listings for their own website FAQ’s pages that blame problems on anything but the device.
Apparently, the companies themselves recognize the machines regularly have problems and are trying to exploit that fact by trying to lure away disaffected customers of other ignition interlock companies.
Once you slog through all the industry advertising, you find there are thousands and thousands of complaints about these devices coming out. One can only imagine that when the California law goes into effect Statewide January 1, 2019, since we are the biggest State, the problems are onlygoing to get worse.
In fact, one woman had all of these problems with her van and she didn’t get a DUI, her husband did. Her problems raise a whole other issue. Like most families, hers has more than one vehicle. If the person who gets the DUI drives all the vehicles, like most adults do, then ALL the vehicles have to have the ignition interlock device installed. That means ALL the drivers have to use the ignition interlock when they drive.
Sadly, it is not just a few people who are giving problems with the ignition interlock devices in their vehicles. Well respected organizations like Consumer Affairs and the Better Business Bureau are reporting thousands of problems. In fact, when you view their websites concerning complaints and problems, you see that thousands more people are viewing them and finding them useful, meaning along with the thousands of people complaining, there are thousands more researching ignition interlock problems.
California Ignition Interlock Device Law
Yesterday, Governor Jerry Brown signed into law Senate Bill 1046. Starting January 1, 2019, persons who get even first time DUI’s will have to have an ignition interlock device (IID) installed in order to get a restricted driver’s license.
Currently, if you get arrested for a DUI, prior to any conviction, the Department of Motor Vehicles suspends your license for four months. However, you can get a restricted license after 30 days of suspension if you enroll in a first conviction program and have proof of liability insurance (a SR-22 form) on file with the DMV. The restricted license allows you to drive to and from work and to and from the DUI program. There are longer periods if you have multiple DUI’s or if it is a felony.
After a DUI conviction, your license is again suspended and you can get the restricted license again immediately as long as you are in the DUI class and have the SR-22 on file.
The new law that will go into effect January 1, 2019, has already been tested out in four Counties, Alameda, Los Angeles, Sacramento and Tulare. Under the new law, for the first license suspension, instead of waiting 30 days with a license suspension, if a driver gets the ignition interlock (IID) installed, they can avoid the suspension and get a restricted license.
After a DUI conviction, the installation of an ignition interlock device (IID) would be mandatory. It would also be necessary if the driver wanted to get a restricted license again after the re-suspension following conviction. If persons get more than one DUI or if it is a felony DUI, all the periods involved get longer.
What to Know About the New Ignition Interlock Law and IID’s in General
How is This Going to Change DUI Cases?
San Diego Defenders (619) 258-8888
Prosecutor’s Investigator Attacks Defense Attorney
So, prosecutors and some in the public like to ridicule defense attorneys for doing their jobs and protecting people accused of crimes. Then we read in the news today how an Investigator (a cop with a gun and a badge) working for the Orange County District Attorney’s Office physically attacked a defense attorney in a courthouse.
It was reported that while the defense attorney, James Crawford, was trying to speak with his client and advise him of his rights. An investigator form the D.A.’s office was interfering and refusing to back off. Then, when the defense attorney brought up the misconduct of the D.A.’s office, illegally withholding evidence about jailhouse snitches, the Investigator went ballistic rushing the defense attorney and beating him. The Investigator, whose name has conveniently not made into the news, yet, had to be pulled off the defense attorney by Santa Ana Police Officers. Now, the Sheriff’s Department is investigating.
This story is so disturbing for some many reasons.
Unlike many jobs, trial lawyers are competitive. The better you are, the better the chance you will win. And, yes, both prosecutors and defense attorneys look at it as winning and losing. But, when a prosecutor cheats or doesn’t really want to get to the truth, it is not just losing a game. An innocent person is going to prison. And, that may be the most horrendous thing that can happen.
San Diego Defenders (619) 258-8888
District Attorney Sets Up Conviction Review Unit
It was good to hear that District Attorney Bonnie Dumanis has decided to start a new unit whose purpose will to be to review cases where someone has been convicted, but, there is now some reason to think they were not guilty.
The new unit will be named the George “Woody” Clarke Conviction Review Unit. I am sure Woody Clarke would be happy. He is a late Judge who had been a prosecutor. He was also one of the most well liked and respected people around the courthouse. When DNA was first being used as evidence in court, he was THE person in San Diego who learned all the science and details of how it worked. In fact, when the Los Angeles D.A.’s needed someone to present the DNA evidence at the O.J. Simpson trial, they called Clarke to do it.
While it is good news our D.A.’s Office is setting up this unit, there are three aspects that are a little troubling.
First, why did it take so long? Every prosecutor’s office in the nation should have one of these units. Prosecutors are not supposed to just be trying to get convictions. They are sworn to seek the truth. That obligation should apply even if they have already gotten a conviction. Every competent person in the legal community knows that some innocent people have been convicted, some even executed. Our awareness of this has only increased with the advent of DNA science and the continued improvements in that field.
Second, it is a shame that only a small group of cases will be reviewed by the new unit. They will only look at serious or violent felonies and only if the person is still in prison. I am sure this is because the two Deputy District Attorneys assigned to the new unit will only be able to review so many cases. But, it does mean other innocent people will remain in prison and those who are out will not have this opportunity to clear their names and records.
Then that leads to the third problem. Why such a tiny unit? We can applaud the concept, but, at the same time, be disappointed in the scope. Our County budget dedicates tens of millions of dollars each year to pursue arrests and convictions. You would think we could carve out more to save innocent people.
We should also keep in mind that the unit will only take action if there is “verifiable” evidence of innocence. The single biggest reason for wrongful convictions in the United States is incorrect witness identification. The work of groups like the Innocence Project and numerous studies have shown that to be true. Eye witnesses are wrong a lot, but, they are also often the most compelling evidence to jurors. In many cases, there will not be any “verifiable” evidence to rely on. So, those innocent people will not get any help.
This reality only reinforces the need to take the standard of “proof beyond a reasonable doubt” so seriously and that no juror should ever vote guilty unless there is no chance the person is guilty.
I am sure Woody Clarke is happy and proud. I bet we could make him more of both if we tried to do even more.
San Diego Defenders (619) 258-8888
If You Smoke Marijuana and Drive, Watch Out for Propositions to Legalize Pot
Nearly four years ago, California voters nearly voted to legalize marijuana. In fact, the proposition was leading in the polls leading up to election day, but, at the last minute it failed. Whether it was the enormous amounts of outofstate money poured in to fight the proposition or the scare tactics of claiming that if it passed, it would make it legal to drive while you were under the influence of pot, the proposition lost by a few percentage points.
It is interesting to note, it already was and would have continued to be illegal to drive while under the influence of marijuana or any other drug. Vehicle Code section 23152(a) made it illegal to drive while under the influence of a drug. If a person had consumed enough marijuana so that they could no longer drive with the same care and caution of a sober person, they were guilty of a DUI. The legalize pot proposition did nothing to change that.
In anticipation of this year’s elections, more than one group is trying to qualify another proposition seeking to legalize marijuana in California. Recently, other States have legalized marijuana. One of the tings that was done in those States to help get the law passed was to include a “per se” legal limit for how much marijuana could be in your system before it was illegal to drive. The primary active ingredient in marijuana is THC9. Active ingredient means that is the chemical compound that causes the effects of a drug, the “high”. Both Washington and Colorado made it illegal to drive if you had 5 nanograms or more of THC9 in your blood system.
The idea was to mirror alcohol DUI laws. In every State, it is illegal to drive if you are under the influence of alcohol. Again, under the influence is defined as so impaired you cannot drive safely. But, this is a very subjective standard. So, to make it easier to get DUI convictions, States passed per se legal limits. Today, 0.08% is the legal limit. If you drive and your BAC is 0.08% or more, you are guilty.
So, California is now going to be voting whether to do the same thing as Washington and Colorado and set a 5 nanogram legal limit. Here’s the problem. It is completely arbitrary. Prior to legal limits being set for alcohol and driving, there had been decades of research on how alcohol affected driving ability. Furthermore, there was enormous amounts of data on BAC’s and vehicle crashes. The research and data collection had been done by the National Highway Safety Administration, numerous scientists around the world and at universities. It had been published and peer reviewed. There was a fair consensus that most people would be too impaired, primarily mentally, to drive safely if they were 0.08% or higher. So, the law has a legitimate basis.
Contrasty, there is no such body of work about the effects marijuana has on a person’s ability to drive. There have been a few studies, but certainly not enough to create any consensus whatsoever. In fact, the exact opposite situation exists. Some “experts” who usually work for the police and prosecutors will say in their opinion if you have ANY THC9 in your system, you are not safe to drive. At the other end of the spectrum, some studies have concluded that some drivers with a moderate amount of THC( in their system are actually safer drivers than your average stone cold sober person. So, there is no legitimate basis for the 5 nanogram limit. In fact, some prosecutors will not even bother filing a case unless the test reults come back at twice that level or higher.
Furthermore, research has shown that unlike regular users of alcohol, who may be tolerant, but, are still unsafe to drive over the legal limit, regular users of marijuana, especially if they always use the same type of cannabis, develop tolerance that translates into being able to drive safely with THC9 in their system that would make a casual user too impaired to be safe.
Perhaps the biggest problem is how low the number is being set at. Marijuana stays in your system and can be detected for long periods of time. Regular users of marijuana will almost always have detectable amounts of THC in their system. Anti-pot experts will say that only metabolites would show up in tests, like THC 11, not the THC9 that the law is concerned with. That has not yet clearly been proven. The bigger issue is that a regular pot smoker may have 5 or more nanograms of marijuana in their system and have absolutely no sense that they are impaired at all, because they aren’t. So, it becomes nearly impossible fr them to know if they can legaly drive or not.
So, if you use or would like to use pot and are excited about the possibility a legalization proposition is coming soon to California, be wary. If it passes, it may mean a lot of people will get marijuana DUI’s who were perfectly safe to be driving.