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DUI Defense Articles

Pitchess Motion: What to Do If the Police Lied On Your Arrest Report or in Court

Cop examining woman's license at traffic stop

You can fight if a Cop lied on your arrest report, in your case or in court!
There is a process called a Pitchess Motion wherein in a Defendant about whom the police lied, in an arrest report, criminal report or in testimony, can request that the police agency turn over all other complaints that people have made about the officer lying (or falsifying reports, or excessive force, or planting evidence).
A Pitchess Motion states that what the officer(s) have put into their reports is false and it may suggest an alternative scenario. The Court then rules on whether there is a discrepancy. If there is, the Court then has an in camera (private) review of the officer’s complaint file. If there are any complaints that show lying or falsifying police reports they are turned over to the defense counsel who can then investigate the complaints and call the complainants as witnesses who will testify against the officer.
The other tool to obtain impeachment evidence as well as exculpatory evidence is a request for Brady Evidence. It all comes out of a fairly old case, that remarkably remains mostly intact, called Brady v. Maryland. Police personnel files that contain Brady information can only be accessed by Pitchess motion.
Brady establishes that the Prosecution has a non-delegable duty to discover and disclose exculpatory and impeachment evidence. The Prosecution has to turn over all evidence favorable to an accused, that is material to either guilt or punishment. Material evidence is that evidence that shows a reasonable probability that, if disclosed to the Defense, it would have resulted in a different decision by the Trial Court. US v. Bagley. The Prosecution’s duty is ongoing pre-trial, during trial and even after trial. US v. Agurs.
Impeachment evidence includes the following:
— Evidence showing inept or biased police investigation, including concealing evidence about prosecution witnesses. Kyle v. Whitley.
— Charges pending against prosecution witnesses. People v. Santos.
— Evidence showing witnesses have a readiness to lie based on evidence of their ‘morally lax character’, even if it isn’t charged as a crime. People v. Mickle.
— Evidence that ‘victim’ made false accusations. People v. Tidwell.
— The identity of all percipient witnesses, even those the prosecution does not intend to call at trial. US v Cadet.
— Evidence that some other dude did it. Kennedy v. Sup. Ct.
— Evidence related to defenses and punishment mitigation. Brady v. Maryland.
— Evidence of all inducements for State’s witnesses to testify. Giglio v. US.
Additionally, the Prosecutor cannot avoid their responsibility by claiming they didn’t know about the information.
There is no good faith excuse. The prosecutor has a duty to investigate whether Brady evidence exists. Kyles v. Whitley.
The prosecutor cannot avoid his duty because the defendant didn’t make a specific request. US v. Agurs.
If you have had these sort of these problems with a cop, or you have any question at all, please call me at 213-479-5322 or fill out the easy form at right.

But Officer, I Only Had One or Two Beers

Beers clinkingTelling Cop You Had One Or Two Beers Is Usually the Wrong Answer.

Those pulled over for a traffic stop invariably tell the arresting officer that they had “one or two beers” when asked.  This is a mistake for two reasons.  First, the person pulled over is under no obligation to assist the police officer in building a case against them.*  It is axiomatic that unless you are a lost six year old, the police officer is not there to help you.

Second, if it’s not true that the person had one or two beers, then it will come back to discredit them and will limit their options at the DMV and trial.  If the person blows around .08, then they had approximately 4 drinks. Widmark’s formula** tells us that every drink raises the BAC of the average man by approximately .02.  Thus, a .08 BAC means that the person imbibed 4 drinks.  So when you tell the officer that you only had one or two beers and you blow .08 and later the alcohol tech testifies that you must have had 4 drinks based on Widmark’s formula, your credibility is shot.

Again, I cannot stress enough how important it is NOT to answer the cop’s questions when pulled over for a traffic infraction/DUI investigation.  {I wouldn’t even answer, “Do you know why I pulled you over?”} Contrary to popular belief, your statements to the officer are not made inadmissible because he didn’t read you your Miranda rights.  The US Supreme Court in Berkemer v. McCarty has said that answers to post-stop/pre-arrest questions (the US Supreme Court actually said 1-2 questions; in California the DMV and Courts stretch that to include the 23-30 DUI investigative questions asked by officers) are not constitutionally protected by Miranda. Your statements will be used to contradict any testimony you later give.

The second answer that is almost universally given in one form or another is to the question “When did you start/stop drinking?. The detainee’s instinct is to make the drinking as long as possible from the stop and answers accordingly.  This may impact a defendant’s credibility later, after the way alcohol behaves in the body is explained to him, and it is too late to tell the truth.  In most situations, the closer to the stop the person was driving the better for them.

This is for two reasons: First, breath alcohol in the absorptive phase is higher than actual Blood Alcohol.  So, when given a breathalyzer test in the absorptive phase, what the machine reads will be higher than what is actually in your system. Commonly used breath  testing machinery manuals state that it is improper to use the machine for 120 minutes after the person stops drinking because of this.

Second, because alcohol is absorbed over time and it can take between 50 minutes and 2 hours (or longer after you eat) to fully absorb alcohol, the person’s BAC at the time of driving may be less than .08.  An answer by defendant that pushes the time drinking stopped further back will be used to evidence that the Defendant is in the elimination phase and his BAC was higher at the time of driving. See Graph.

* Again, if you have NOT been drinking, cooperate with the police.  If you have been drinking, even a little bit, it is highly likely that regardless of whether you cooperate you will be going to the station, so why give the police evidence that will later be used against you if you are charged?

** Widmark’s formula was developed in the laboratory under strict controls. It is probably not scientific when discussed by a alcohol tech where the only variable that is objectively added into the formula is BAC at some random point after the stop.  Further, Widmark’s formula requires imputting a constant based on the ‘average man’ or ‘average woman’.  Anyone average out there?

DUI Stops the Fifth Amendment and Miranda

Cops Harrassing man at DUI StopsFirst off, the cop’s failure to read you your rights will not get a DUI case dismissed.

At a DUI stop, violating the Fifth Amendment and Miranda will possibly get your statements suppressed, IF it is determined that you were in custody at the time your statements were made.

But this is unlikely because of a US Supreme Court case called Berkemer v McCarty, which says that the questions a cop asks after a DUI stop are not part of a Custodial Interrogation.

The Berkemer case involved a stop where the cop asked one question: “Are you under the influence of anything?”

The guy answered “Yes.”

He got arrested.

In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The Court held the subject was not under the belief that he couldn’t leave. The Court further held that in this case, the questions were not intrusive.The holding has been expanded by cops and prosecutors to encompass the 27-30 DUI Pre-Field Sobriety Test questions.

If you are arrested and questioned, you must invoke your right against Self-Incrimination unequivocally. This means anything other than “I invoke my right against self-incrimination,” will not be treated as an invocation. So when arrested and questioned say, “I invoke my right against self-incrimination.” However, the Fifth Amendment does not relieve you of your obligation to take the post-arrest DUI chemical tests.If you are stopped and questioned pre-arrest, the Berkemer decision says that you’re not under arrest, so your Fifth Amendment right doesn’t apply. I counsel that you should tell the cop, “Officer, am I free to go? If not, then I choose not to answer your questions.” Any answers you give the cop will be used to build a case against you. They are not trying to learn information so they can release you. They are trying to get information to get a conviction.

The recent California Supreme Court case of People v Tom shows the importance of unequivocally invoking your Fifth Amendment right not to answer cops’ questions. In this case, there was a traffic fatality, the Defendant left the scene, later the cops came to his house. They found him drinking. They arrested him and had him sitting around for three hours. During that time he never inquired about the person who was killed. Of course, none of the cops informed him why he was arrested or that there was a fatality. The prosecutor commented on this in his closing argument.

This is usually ruled a Griffin Error. A Griffin Error means the prosecutor cannot comment on the Defendant’s post-arrest silence. The Tom Court held that because the Defendant did not unequivocally invoke his right against Self-Incrimination, the Prosecutor could comment about his silence.

Merely remaining silent after being arrested will not be enough to invoke your right against Self-Incrimination. It cannot be said often enough, at DUI stops the Fifth Amendment and Miranda require that you unequivocally invoke your right against Self-Incrimination.

If you have an issue with the Fifth Amendment and Miranda please call me at 213-479-5322 to discuss this more fully.

Driving Under the Influence: The “D” Stands for Driving

Person Driving

The Prosecutor Must Prove Driving In Your DUI Case.

In California, the “D” in Driving Under the Influence  stands for driving.  Some states, allow conviction for DUI if you are operating or in control of the vehicle.  In California, a DUI requires some ‘volitional movement of the vehicle’.

Do the cops need to see you driving for the arrest to be valid?  Yes. Except for limited circumstances outlined in Vehicle Code Section 40300.5, like if you are in an accident or blocking the road, they need to observe you drive to arrest you for Misdemeanor DUI (Penal Code Section 836 requires presence of cops during the Misdemeanor for arrest).  If they did not see you drive, you might be able to suppress the Arrest and subsequent tests.

Even in the freedom – destroying cases of US v. Navarette and People v. Welch, where snitches supposedly observed poor driving in the people who were subsequently arrested, the cops themselves observed the Defendants drive.  The US Supreme Court in Navarette said an arrest based on no observed bad driving was constitutional because an unidentified informant supposedly observed bad driving and told the dispatcher about it. The same thing happened in Welch, but by the California Supreme Court.

Also, for the breath or blood tests to mean anything, the cops need to be able to determine when you were driving. They need to do this because the State ‘criminalist’ will use the voodoo science of ‘retrograde extrapolation’ (retro = back, grade = look, extrapolate = guess) to determine your BAC at the time you drove which is what the law requires.

They can’t do this if they don’t see you actually driving.

FYI: It doesn’t matter if you are seen driving a car on private or public property People v Malvitz.

If the cops didn’t see you driving, your case is defensible because if the Prosecution takes the case to Trial, they have to prove when you drove in order to establish BAC at time of driving. So without a witness to the driving, they can’t prove that. This usually plays out where the cops come upon a one car accident or find someone asleep behind the wheel.  As far as they know,the accident could have happened or the person pulled over, hours ago.

Remember, the D in DUI stands for driving. There is an issue of PC 836 presence requirement for a awful Arrest on a Misdemeanor. This should be addressed by a Motion to Suppress. At Trial, the Prosecutor will introduce circumstantial evidence of driving. There is also the issue of Time of Driving. This is an issue with respect to time of driving for the 3 hour presumption and the retrograde analysis that will be used to place your driving at .08 or above. If the prosecutor can’t prove when you were driving then they can’t prove your BAC at time of driving by either method.

If you have any questions about DUI, driving, time of driving or any other DUI related issues, please give me a call at (213) 479-5322, or fill out the easy form at right.

DUI Travel Restrictions: Canadian Entry

Canadian VisaDUI Travel Restrictions: Canadian Entry

Got a DUI and going to Canada?  Canadian entry can be denied because of DUI Travel Restrictions.

Canada treats a DUI as a felony (in Canada, it’s a National Crime as opposed to a Misdemeanor) and will not allow you to enter by plane or apply for visa. Although, clients tell me that they’ve been able to enter by bus.

You can apply to obtain a waiver for entrance at the border. As part of the process you have to provide a good reason for entering Canada. It is still possible that you could be refused entry at the border.

To travel to Canada you need to have your DUI conviction dismissed pursuant to PC 1203.4 (this is commonly and mistakenly referred to as an Expungement). To get this you must have successfully completed Probation or have your Probation terminate early (by moving the Court to terminate it early). Then you must move the Court to dismiss the Conviction pursuant to PC 1203.4. This works for Canadian entry. You can do the PC 1203.4 dismissal yourself or hire an attorney to do it. PC 1203.4 dismissal is discretionary, and there is a hearing in court to obtain it.

If you are having trouble obtaining entry to Canada or any other country because of your previous criminal conviction, call me at 213-479-5322 or fill out the easy form at right.

Brenner and the DMV DUI Hearing

DUI DMV Hearing InteriorBrenner and the DMV DUI Hearing

Find out procedural information about the DMV DUI Hearing Here

I often refer to the DMV DUI hearing (Department of Morons and Villains h/t Ed Kuwatch) as a “Kangaroo Court” because the DMV Hearings Officer, often a person with no legal training, acts as the prosecutor, judge and jury.

The defense bar recently got a little help keeping client’s licenses from, of all places, the First District Court of Appeals. In Brenner v. DMV the Court held that once the DMV puts on their prima facie case by admitting, over Defense objection, the police report, if the Defense is able to show evidence questioning the accuracy of the equipment used to test the driver’s blood alcohol content, then the DMV must rebut this by showing by a preponderance of the evidence that the machine was operating correctly.  In Brenner the DMV failed to do so.  Brenner v. DMV (A126745, First Dist., 10/18/10) ___ Cal.App.4th ___.

In Brenner, the DMV put on their usual show with the police report and DS 367.  The report showed the Brenner blew a .08.  The respondent’s counsel introduced the maintenance and accuracy logs through an expert. The accuracy log showed that the machine was running about .01 high.  That is, the machine was tested with 1.0 solution and the result displayed by the machine showed 1.01.  Brenner’s attorney argued that Brenner’s BAC had to be below .08.  The DMV thanked him and said they’d take it under consideration.  They came back and suspended Brenner’s license.  Brenner’s attorney submitted a writ, the Superior Court agreed with Brenner. 

The DMV appealed and the Court of Appeals also agreed with Brenner.

I think its good news every time the DMV is told that the law matters in these things and have incorporated Brenner in the arsenal I bring to the DMV.

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