Four-Headed DUI Monster Stunned by Latest Round of Decisions pursued by California DUI Attorneys
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.
Rick Mueller is a San Diego DUI Lawyer who has been practicing DUI law since 1983. He received his Juris Doctor degree from Chicago Kent College of Law and is also a licensed attorney in Illinois.
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