LATEST VICTORY: Christopher B. was charged with a 3rd time DUI. His 2 priors were in another state. We filed a "Motion to Strike the Priors" asserting that the out of state dui's did not meet the California equivalency test. RESULT: His out of state priors were stricken from the record, so instead of facing a 3rd time DUI in California, he is now only facing a 1st time DUI.(This does not predict a similar outcome of your case but is intended to show the fruits of my hard work)
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DRINKING DRIVING DEFENSE LITIGATION
Drinking Driving Defense Litigation - PHASE ONE: What are the Facts?
The first phase in a successful DUI defense case is to challenge the cop's reason for allegedly stopping you. This can be done by contacting a San Bernardino County DUI lawyer.
The 4th Amendment to the United States Constitution states that all men shall be free from unreasonable search and seizure. In order for the police to comply with the 4th Amendment they must have probable cause to stop you. Without probable cause the stop is illegal and all evidence obtained cannot be used against you in a court of law This means that all the evidence such as the breath test, blood test, and all field sobriety test cannot be used against you. This is known as the fruit of the poisonous tree doctrine.
Examples of where the courts found that the cops did NOT have probable cause to stop you.
Object hanging from rear view mirror
No front license plate (People v. White (2003) 107 Cal.App.4th 636.)
Driving over the right shoulder fog line
Driving over the gore point at a freeway exit
No observation of you driving by the cop
Weaving that is not pronounced or for a substantial period of time
Taking of your blood sample without being arrested
Driving on private property PEOPLE V. KROHN (2007) 149 Cal.App.4th 1294
But then you ask, How do we fight the stop? In California, we use what is called a Motion to Suppress under Penal Code Section 1538.5. This motion will be heard in court similar to a trial. There will be a judge, prosecutor, myself, you, and the cop. The cop is put on the witness stand to testify as to why he stopped you. Once the prosecutor is done with his initial set of questions, I then get to cross examine the cop and prove that what he thought was a good reason to stop you was not justified under the law.
In our Phase Two we focus on obtaining ALL of the documents you are entitle to. In the legal world we use a fancy name and call this "discovery." You are entitled to a substantial amount of documents. Such as, police report, witness statements, lab document, breath results, blood results, and much more. The prosecution will usually give us the police report and breath or blood results without much problem.
We then go a level deeper in our request. If you did any kind of breath testing we then request copies of all documents associated with every machine you tested on. This would include, repair invoice, calibration proof, maintenance records, gas records, just to name a few.
If we are fighting a blood test case we then request copies of ALL Gas Chromatograms that were performed on your blood. This usually results in us obtaining 60 plus additional pages of documents. Once we have these documents we can have our Nationally Recognized Expert review the documents for any problems in the testing. The procedure is called Gas Chromatography when they test your blood for the presence of alcohol. The process of Gas Chromatography is the process of separating the chemicals in your blood.
We Know the San Bernardino, Riverside, & Orange County Courts
I work day-in and day-out in the local DUI courtrooms within the Inland Empire. I have made trusting relationships with the judges, Deputy DA's, and the court staff. I am well respected and known in all the Local courthouses, from San Bernardino Central to Pomona, from Victorville to Temecula, from Riverside to Banning. Not every courtroom in every courthouse handles DUI's. It is important that your attorney knows who to talk to and the best approach to handling your case. I also represent good folks who need my level of experience and will manage cases in Orange County and Los Angeles County.
WHAT INFORMATION DO I NEED TO ANALYZE THE DUI CASE?
In order to properly analyze your case we need a sit down face-to-face meeting which will typically last about an hour. Typical information that I need includes, your name and date of birth, age, height, weight, date of incident, time of incident, which police agency, how many cop cars on scene, how many cops in each car, did you call the DMV for a hearing within 10 days. This is just the background information.
Next we deal with the reason for the stop. My focus then shifts to each fact inch by inch. We look at whether or not the officer had reasonable suspicion for stopping you. As I mentioned above, you are protected by the 4th Amendment to the United States Constitution and you have the right not to be stopped unless you have at a minimum violated a traffic code.
WIDMARK FORMULA. Erik Widmark was the original creator of the algorithmic formula which is used today to calculate your blood alcohol concentration. During our office meeting I will show you exactly what your BAC was at the time of driving based on your alcohol consumption. It is very important that we know exactly what you were drinking and when. We will use this and additional information in our computer program to produce a graph of your blood alcohol level.
STANDARDIZED FIELD SOBRIETY TEST. I am Certified in Standardized Field Sobriety Testing. I have taken the same course that many Police, Sheriff, and CHP Officers have taken. However, as an attorney I am trained to to execute the test perfectly. I have memorized the exact language of the SFST and well as the validating clues associated with each test.
HORIZONTAL GAZE NYSTAGMUS. This is the eye test. But did you know that most officers don't even know the most basic elements of the test? In order to do the test properly the officer must make 7 passes on each eye. If the officer does the test correctly he will have taken 86 seconds at a minimum to complete the eye test. The Horizontal Gaze Nystagmus test is one of 3 test recognized by the National Highway Traffic Safety Administration (NHTSA) as being a "standardize field sobriety test."
How did the SFST come into existence? Back in 1975 the NHTSA gave a research grant to the Southern California Researh Institute which was lead by a Dr. Marcelline Burns. The study was 2 years in length. The purpose of the study was to identify which of the field sobriety test being used across the country had any reliability in determining if a person was over a .10 BAC. However, if you read the actual study one will find that the BAC limit which the officers used as their arrest decision point was .08.
Remember, back then the legal limit was .10. At the conclusion of the study they stated that there were 3 field sobriety test that could be reliable. They were the Horizontal Gaze Nystagmus, Walk and Turn, and One Leg Stand. HOWEVER, the NHTSA Manual states that in order for the validating clues taken from the test to be valid, the test must be done EXACTLY as prescribed in the manual. That is found on PAGE 19 of SECTION 8 of the NHTSA Manual.
Back to the HGN, first the officer must give the test according to NHTSA standards and secondly the officer must be able to articulate all 6 of the validating clue. The validating clues must be articulated as "lack of smooth pursuit", "distinct and sustained nystagmus at maximum deviation", and "onset of nystagmus prior to 45 degrees."
LACK OF SMOOTH PURSUIT: The cop can produce a false indication of lack of smooth pursuit if he moves the stimuli ( his finger) across your field of view too fast. If the officer moves his finger at a rate of 1 second for every 30 degrees of angle this could affect the eye's ability to track the finger.