St. Patrick’s Day is on Friday this year. That can increase the amount of partying people will do. Law enforcement in san Diego is looking to set up a bunch of DUI checkpoints. The San Diego Sherriff’s office has announced one in Encinitas. The San Diego and El Cajon Police Departments also have announced they will be setting up DUI checkpoints.
SDPD often sets up multiple checkpoints in the Downtown area on the routes most commonly used to leave as many people drink in the Gaslamp and then head home. They also love to set them up near Garnet.
Ironically, DUI checkpoints are a poor way to catch drunk drivers. It has been shown numerous times and acknowledged by courts and law enforcement that the same number of police on regular patrol would catch more. They still do them for the publicity and the overtime pay that comes from grants.
In fact, I had a case recently where a checkpoint caught only one DUI driver wasting several officers for hours. In another, the police sent out a press release about catching five DUI’s. But, they were only stopping and contacting every third vehicle. So, the headline could have just as easily have been, Police Let 10 DUI’s Keep on Cruising Through DUI Checkpoint.
Despite them being a waste of resources, DUI checkpoints will be out in force tomorrow night given its Friday and St. Patrick’s Day. The best way to avoid having any problem with a checkpoint is to simply not drink and drive. But, if you have a Guinness and are driving home, avoid large streets and the areas mentioned above. If you see a checkpoint ahead, you do not have to drive through. They are supposed to be set up so a person has the opportunity to avoid them. But, be aware, there will be cops watching for anyone who looks like they are avoiding the checkpoint. If you commit any vehicle code violations (and maybe even if you don’t), they are going to go after you to pull you over.
They also are not supposed to slow down traffic too much and be well marked. If you go through one, take note of where the first signs warning drivers about it are, is there a way to avoid it, where are cones set up and how long you wait. And, let us know.
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