“What is a gas chromatogram?”
Seems like a simple question, but it gets to the heart of who’s out there purporting to be a DUI Defense Attorney. Whether the person knows the answer shows whether DUI defense is what they do – or just another in a long list of things they advertise for.
The answer is:
A chromatogram is a graphic representation of the test that’s done by the cops to determine the accused’s blood alcohol content at the time of the test.
If the person who wants to be your DUI Defense Lawyer can’t answer the question, or says it doesn’t matter, you need to thank that person for their time and leave.
I was recently in Court fighting to get the Chromatograms for my client and I was the only one in the room who knew what a Chromatogram was. I had to explain what Chromatograms are to the Judge AND the Prosecutor. Other Lawyers were taking notes about chromatograms – because they didn’t know.
Judges and Prosecutors ask all the time: “Why do you need to see that?” because most other lawyers aren’t asking to see these essential test results.
Blood tests can be fought – ALL DUIs can be fought – and knowing whatc hromatography machines are and exactly how they work is essential to that fight. Gas chromatography machines are NOT infallible. If you know where to look, you can find that the machine or the blood sample are probably contaminated.
Even if your DUI doesn’t involve a blood test, if it’s a refusal or a breath test, not knowing the answer to this question discloses that the person you asked doesn’t really know what he or she is doing. Chances are they’re just saying what you want to hear in order to get hired and they will just be going through the motions during your case. Chances are no matter how great what they say sounds,when they’re trying to get hired, you will end up pleading guilty to a DUI.
If your case does involve blood testing, the Lawyer who can’t answer your question will probably end up telling you, “It’s a blood test, there’s no way to fight that.” Without even looking at the chromatograms!
You’re going to end up spending thousands of dollars, even if you hire a cheap “Do Nothing” Attorney. It’s important to your future; you should know what to ask and know what you’re getting. Even if you settle for the guy who doesn’t know what a chromatogram is, you should know your Lawyer’s limitations.
12 Aug / 2015
The California Legislature has ordered the DMV to provide licenses to people who reside in California, even if you don’t have proof of citizenship.
The big picture is if you are a non-citizen, you can now get a drivers license and avoid fees and convictions for driving without a license.
20 Jan / 2015
Walmart Partners Up With Lawyers In a Race To the Bottom In Legal Representation
Walmart has earned a reputation as the retail leader in the race to the economic bottom. For years they’ve negotiated the lowest prices for the goods they sell and for the services of those who toil at Walmart. A staggering number of Walmart employees and their families live below the poverty line and require public assistance to get by.
Walmart is able to do this because they have such huge bargaining power. The mega-chain is able to negotiate the lowest prices for goods because they buy in such high volume. Walmart is able to pay its employees low low wages because they are often the only employer in the area.
So now Walmart has teamed up with Legalzoom to provide Wills and Trust services and Axxess Law to provide onsite attorneys at their stores. Given their history in other areas of purchasing goods and services, I’m sure that they’ve negotiated really great deals for new and struggling lawyers to provide low cost legal services.
But is this in your best interest?
No. Choosing a lawyer is not buying a box of cornflakes. A lawyer that charges low, low fees has to take many, many cases and can’t give your case the attention it needs. A lawyer that must provide a wide variety of legal services (personal injury, contracts, bankruptcy, et c.) can’t devote his time to being outstanding at the area of law you need.
So you may choose to shop at Walmart for groceries because of price or variety, but it is not the place to shop for a DUI or criminal lawyer. Your LIBERTY is at stake!
A good defense is never cheap and a cheap defense is never good
16 Nov / 2014
NBC News recently reported that CHP officers are making a game of stealing racy photos. CHP Officer Harrington of the Dublin area CHP was arrested recently for stealing photos from the cell phones of women he arrested. He would search an arrestee’s phone and then text the pictures to his friends – also members of the California Highway Patrol.
He was charged with two Counts of Computer Data Theft, a Felony. The two Counts stem from two separate instances when he sent the private photos from the arrestee’s phone to his cop buddies. The article describes the conduct as part of a game among the officers.
Officer Harrington says essentially he’s sorry that he got caught and fired and hopes he can move on with his life.
At least one of the cases where Martinez was arresting officer has been dismissed because of the charges against him.
At least one of my clients who was stopped by the CHP says that they took their phone and looked through it. If this is in fact part of a larger game among CHP officers, it has probably happened more than twice.
If you’ve been stopped or arrested by the CHP or any law enforcement agency, you should search your phone to see if there are any texts to numbers you don’t recognize. If you’ve been the victim of an invasion of privacy by CHP you can make a complaint here. Complaint procedures against local law enforcement should be on their websites.
If you need help because your privacy has been invaded by the CHP, call me at (213) 479-5322 to discuss your case more fully.
16 Nov / 2014
This is an exciting development for people convicted of certain felonies.( I list them below.) Prop 47 allows reduction of felonies to misdemeanors. One of the most important things about this Proposition is it applies retroactively. This means no matter when you were convicted you can get your felony reduced to a misdemeanor. As you know, this effects your employment, voting rights, gun ownership and more. In addition, once you get your conviction reduced to a misdemeanor, you can have it expunged.
Expunged means it shows up on your record as a “dismissal after conviction”. So when asked, you can answer “No, I do not have any misdemeanor or felony convictions.” about the conviction. And you can do this for all felonies that fall under the list below.
But it doesn’t happen automatically, you have to take steps to get obtain your reduction. This is a process some people can do themselves but if you have any questions, I am here to help. I can offer advice, file your reduction or help you decide whether you need an attorney.
Here are the Felonies affected:
– Health & Safety Code Sections 11350(a) (Possession of Cocaine/Heroin, etc.), 11357(a) (Possession of Concentrated Cannabis) and 11377(a) (Possession of Methamphetamines).
– Penal Code Section 459.5 (Shoplifting where the person entered a business with intent to commit larceny during business hours and took property worth less than $950.) Unless also charged with petty theft or 2nd Degree Burglary.
– Penal Code Section 473 (Forgery (PC 470(a), 470(d), 475(a), 475(b), 475(c), 476) where the value of the check is less than $950.[DA cannot aggregate]) Unless also convicted of identity theft (PC 530.5).
– Penal Code Section 476a (Making bad checks where the value of the check is less than $950.[DA can aggregate]) Unless 3 or more prior convictions for PC 470, 475, 476 or 476a.
– Penal Code Section 490.2 (Grand theft (PC 487(b), 487(c), 487(d)(1), 487(d)(2), 487a, 484e(a), 484e(b), 484e(d)) where the value of the property is less than $950.)
– Penal Code Section 496a (Receipt of Stolen Property Valued at $950 or less).
– Penal Code 666/484 (Petty Theft with a Prior). Unless also suffered a prior felony conviction for theft or PC 368(d) or (e).
Anyone convicted of these offenses is eligible to have their sentence retroactively reduced from felony to misdemeanor UNLESS they have either a prior strike offense or are subject to PC 290 registration.
In Los Angeles, the process to obtain your reduction is as follows:
1. Fill out the form here.
2. Serve a copy on the District Attorney. Their office can be found in the same court where you go for Step 3.
3. File in Court where your case took place.
4. The District Attorney fills out their portion of the form and submits it to the Court.
5. The Court will then either (1) grant your request or (2) set the matter for hearing.
Remember, If you have any questions with obtaining relief under Proposition 47 or need assistance in filing your Prop 47 request for reduction you can contact me at (213) 479-5322.
23 Aug / 2014
AT DUI STOPS, THE FIFTH AMENDMENT AND MIRANDA REQUIRE YOU TO INVOKE UNEQUIVICALLY.
First off, the cops failure to read you your rights will not get a DUI case dismissed.
At DUI stops the fifth amendment and Miranda will possibly get your statements suppressed, if it is determined that you were in custody at the time the statements were made. This is unlikely in a DUI because of a US Supreme Court case called Berkemer v McCarty.
Berkemer v. McCarthy 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 1 question: are you under the influence of anything?
The guy answered yes.
He got arrested.
The holding has been expanded by cops and prosecutors to encompass the 27-30 DUI Pre-Field Sobriety Test questions. 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.
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.”
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 Griffin Error.
The Griffin Law means a Prosecutor cannot comment on the Defendant’s post-arrest silence. But 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.
22 Aug / 2014
THE CHALLENGES OF DEFENDING SOMEONE ACCUSED OF DUI
AND DOING IT RIGHT
Here is the DUI interview I did with DUI attorney Mark Rosenfeld, Mr. DUI LA. It includes us talking about the challenges of DUI Defense and going through a recent DUI trial victory of mine. In the interview Mark and I discuss the common misconception that DUI cases are unwinnable. I describe a recent DUI trial victory to illustrate the point that DUI Cases are winnable with the right attorney. This is video is a good example of the issues in a DUI case as the case study involves, field sobriety tests, breath testing, blood testing, and issues of time of driving. After all, the State must prove that the accused driver was impaired and/or over .08% blood alcohol content at the time of driving. In this case, the defendant had to fight because of onerous immigration consequences related to travel to Canada. He was tested with three separate machines, the preliminary alcohol screening device, the Datamaster breath testing device and hi blood was analyzed by gas chromatagram. In the DUI interview I discuss how all three of the tests were flawed. If, after watching this DUI interview, you are ready to fight and win your DUI or you have questions about whether your DUI can be won, please call me at (213) 479-5322 to set up an appointment.
04 Jul / 2014
As smoking marijuana is now legal, at least with a doctor’s recommendation, and at least as far as California law is considered, there has been an increase in charges of DUI Marijuana. The problem with DUI marijuana is that the tests used to determine the presence of marijuana in a person’s blood/urine are inaccurate.
DUI Marijuana is easy to charge but hard to prove.
First, these prosecutions for DUI marijuana are problematic because NO scientific literature has shown that marijuana impairs a person’s ability to drive. The results of crash fault studies fail to show that drivers with marijuana in their system are significantly more likely than drug-free drivers to be at fault in crashes.
The active ingredient in marijuana (THC or delta-9-tetrohydrocannibinal) is metabolized to 11-Hydroxy-THC or THC-OH (which is psychoactive) which can be detected in the blood, but not the urine. THC-OH is quickly metabolized to 11-nor-9-carboxy-THC or THC-COOH (non-psychoactive).
According to research, the level of THC rises to 150 ng/ml instantly after use, it then decreases to 15 ng/ml after 1 hour and 5 ng/ml at 2 hours. The THC quickly dissipates and by the time the blood is tested (after the stop, initial investigation and DRE, transport to station or hospital for blood draw) the THC is low even if the person had smoked just before driving. THC can remain at low levels for 8 hours without any measurable sign of impairment. Journal of Anal. Tox. Vol. 32: 160-164 (2008).
As with all blood tests, there are two problems: (1) a single blood test cannot predict concentration at the time of driving, the only thing that can do that is a blood test AT the time of driving; and (2) even drug concentrations at the time of driving can never predict whether a person was impaired by drugs because of the wide responses to a drug. This is a pharmacological truth and cannot be changed by crime lab personnel to obtain a criminal conviction.
Even NHTSA recognizes difficulty of DUI marijuana prosecutions. In their Drug and Human Performance Fact Sheets, they state that it is difficult to establish a relationship between a person’s THC level in blood and performance impairing effect. They acknowledge that “It is inadvisable to try and predict effects based on blood THC concentrations alone, and currently impossible to predict specific effects based on THC-COOH levels.”
So if you’ve been accused of DUI marijuana, it is easy to fight and win when you know the science of drug use and testing.
My article on DUI Drugs in general is here.
My article on preliminary drug testing is here.
If you have questions about DUI marijuana call me at (213) 479-5322. If you have an opinion, leave a comment.
04 Jul / 2014
More arrests are being made for DUI drugs than ever before. While it’s always been illegal to drive while under the influence of drugs, the legalization of marijuana, ready availability of other illicit drugs and proliferation of prescription medications has increased the number of arrests and prosecutions of people for driving while their ability to drive is impaired by drugs.
The way a DUI Drugs arrest usually happens is that a cop observes something that he feels is indicative of being under the influence. He then pulls the person over, runs them through the field sobriety tests (see here for an explanation why the FSEs are bunk). He then does a preliminary alcohol screening test and it comes up negative or below the legal limit for alcohol. The cop then calls in a different cop with training in a different level/kind of voodoo called a Drug Recognition Evaluater (DRE).
That cop then runs through a 12 step protocol (irony alert) to determine if the person’s ability to drive is impaired by drugs. One of the things they are taught to look for is a green tongue as evidence that the person has smoked marijuana. This is ludicrous.
As part of the DUI Drugs screening, the cop asks the person to identify all the drugs they take, legal and illegal. Most people want to cooperate with cops (this is always a mistake — remember: unless you are a lost six year old, that cop is NOT there to help you!) because they think that will get them on their way. The person admits to using some drug, often thinking that if they admit to the drug they are legally taking, they will be released.
At the end of the DUI Drugs evaluation, the evaluation cop makes a guess about what drug the person is under the influence of (mostly based on what the person tells them) and sends their blood out to be tested. The case is prosecuted as a DUI Drugs case. The blood test comes back and shows the person has a drug in their system or doesn’t.
These DUI Drug cases are insidious because they are so easy to charge. The drug the person has in their system doesn’t have to be illegal and since a majority of people use prescription drugs to manage some problem and all these drugs have some side effect, the cop can easily make an arrest. The cops take two mostly unrelated events: admission to drug use and failure on their Drug DUI evaluation to correlate that the person’s supposed impairment (based on the cop’s observation of ‘poor’ driving) is caused by drugs.
The problem is that science tells us that you can’t determine whether a person is impaired by drugs by the fact that they have a certain drug in their system. First, drugs remain in the blood a long time after they have any effect on one’s ability to drive. So presence in the blood doesn’t mean the drug is still acting on the body.
Second, and most importantly, everyone who uses a drug — prescription or other — develops a tolerance to the drug. That tolerance is unique to the individual and can’t be predicted. The person who uses a drug over a period of times adapts to it’s presence in the body. So use of a drug, doesn’t predict that the person was impaired by the drug.
This means that DUI Drugs prosecutions are difficult if not impossible to convict. The State’s lab tech has to admit that he can’t tell by the presence of a drug that the person was impaired by the drug. The prosecutor then has to rely on the obviously biased testimony of the DRE cop to say that the person’s behavior was due to being under the influence of whatever drug the blood test showed. This can be a different drug than the one they guessed during their evaluation. The problem with this scientifically and logically is that it’s confusing correlation (the presence of two variables) with causation (one variable [drugs in the body] caused the other [subjective failure of the DRE]). There is also the problem present in all DUI prosecutions that failure on subjectively evaluated tests means impaired ability to drive.
See my article about DUI and marijuana here.
See my article about the DUI Drug Test in CA here.
If you have any questions about DUI Drugs, impairment by drugs, or other DUI or drug related topics, call me at (213) 479-5322. If you have an opinion, leave a comment.
03 Jul / 2014
Holiday Weekend DUI Checkpoints
Be safe out there. Don’t let the cops ruin your holiday. Avoid these LA Area weekend DUI checkpoints:
Tonight (7/3): Hollywood Area saturation patrols from 4 pm to midnight. A saturation patrol means lots of cops patrolling the streets looking for people exhibiting ‘clues’ of driving while impaired.
Tonight: DUI Checkpoint in Koreatown at Vermont and 5th Street from 8 pm to 2 am. The checkpoints aren’t just looking for drinking drivers, they are also looking for people with suspended or expired licenses or traffic/criminal warrants. So if you have a traffic warrant, you want to avoid the roadblocks.
Tonight: DUI Checkpoint Downtown on Figueroa at 9th St. from 8 pm to 2 am.
Tonight: DUI Checkpoint in North Hollywood at Laurel Canyon Blvd. and Oxnard St. from 8 pm to 2 am.
Saturday (7/5): DUI Checkpoint in South LA at Western Ave. and Martin Luther King Jr. Blvd. from 6 pm to midnight.
Saturday: DUI Checkpoint in Hollywood at Hollywood Blvd. and Argyle Ave. from 8 pm to 2 am.
Sunday (7/6): DUI Saturation patrols in downtown LA from 4 pm to midnight.
Sunday: DUI saturation patrols out by San Fernando in the valley from 5 pm to midnight.
From 6 pm tonight until 11:59 pm tomorrow AAA will be offering free rides, at least the first seven miles. More info at 1-800-400-4AAA.
You can read my article on weekend DUI Checkpoints, here.
You can read my article on what to do when stopped at a weekend DUI Checkpoint, here.
You can read my article about drug testing at weekend DUI Checkpoints, here.
If you have any questions about DUI checkpoints, what to do or what happens if you’ve been stopped, call me at (213) 479-5322. If you have an opinion or know of a different checkpoint, leave a comment. Stay up to date on checkpoint locations with Mr. Checkpoint.