Alcohol & Drugs: DUI, DWI Felony DUI

[agrieder]

That is exactly what I advised him to do. You know, I was just reading numerous sites that talk about botched BAC tests in crime labs. These sites were actual court docs. The County citing him was actually mentioned. The guy beat the case by asking for a DNA test. I just cannot understand that there was no mention of drugs when he admits that would have been in his blood but not alcohol. Maybe the recording from the lab does not mention drug info, only alcohol. We'll just have to wait and see what the charges are. Is there a way to find out if the other person involved in the accident was really injured? Will that be spelled out in the police report?

 

[agrieder]

That is exactly what I advised him to do. You know, I was just reading numerous sites that talk about botched BAC tests in crime labs. These sites were actual court docs. The County citing him was actually mentioned. The guy beat the case by asking for a DNA test. I just cannot understand that there was no mention of drugs when he admits that would have been in his blood but not alcohol. Maybe the recording from the lab does not mention drug info, only alcohol. We'll just have to wait and see what the charges are. Is there a way to find out if the other person involved in the accident was really injured? Will that be spelled out in the police report?

 

[CdwJava]

I just cannot understand that there was no mention of drugs when he admits that would have been in his blood but not alcohol.

As I explained, there is a cutoff level for drugs. if the concentration of the substance or byproduct is below the cutoff level in ng/ml then the test would be negative. So, if he took his meds as prescribed the previous evening, I would expect it NOT to register.

If he truly did not drink any alcohol then the only reasonable conclusion is that he did not provide them with the correct number, or the clerk on the other end of the phone got the number wrong. Note that I did not say that this was the only POSSIBLE conclusion ... "possible" is not the same as "reasonable". If the test comes back positive for alcohol, then he will have a heck of a fight on his hands to challenge the lab's processes.

Is there a way to find out if the other person involved in the accident was really injured? Will that be spelled out in the police report?

That will only be substantiated with a doctor's evaluation and that will likely be provided at trial if they allege the felony DUI. Note that the injury can be very minor.

- Carl

 

[agrieder]

May I ask how minor is minor?

 

[CdwJava]

"Bodily Injury" is not clearly defined in this instance, but can mean as little as a complaint of pain. Any visible injury - even a scratch or bruise - would almost certainly qualify.

- carl

 

[agrieder]

Hi Carl,
I have looked at further sites (about ten different ones) and found that in some jurisdictions, such as California, the felony offense also requires "independent" proof of negligent driving or violation of a traffic law. From what I understand, he was pulling out and had plenty of room to make his left in front of the on-coming traffic. The other guy was speeding thus causing the accident. Any comments.....?

 

[CdwJava]

Hi Carl,
I have looked at further sites (about ten different ones) and found that in some jurisdictions, such as California, the felony offense also requires "independent" proof of negligent driving or violation of a traffic law. From what I understand, he was pulling out and had plenty of room to make his left in front of the on-coming traffic. The other guy was speeding thus causing the accident. Any comments.....?

What does the police report say?

If you have not read the report, chances are the PCF (primary collision factor ... the cause of the collision) will be an unsafe entry into traffic in violation of CVC 21804:

21804. (a) The driver of any vehicle about to enter or cross a
highway from any public or private property, or from an alley, shall
yield the right-of-way to all traffic, as defined in Section 620,
approaching on the highway close enough to constitute an immediate
hazard, and shall continue to yield the right-of-way to that traffic
until he or she can proceed with reasonable safety.
(b) A driver having yielded as prescribed in subdivision (a) may
proceed to enter or cross the highway, and the drivers of all other
vehicles approaching on the highway shall yield the right-of-way to
the vehicle entering or crossing the intersection.​

It is prima facie (on its face) evidence of an unsafe entry into traffic if the entering vehicle is struck by an oncoming vehicle. This would be the negligent act as required. The defense would have a real hard time proving that speed was the cause of the collision because they would have to prove that had the approaching vehicle (lawfully within its lane, apparently) been traveling at the speed limit the crash would not have occurred ... unless the approaching vehicle was driving at something akin to 90 MPH, the time it would have taken for your friend's vehicle to fully enter the lane and proceed would not have been sufficient to avoid a collision. Had it been "safe" to make his entry into traffic or turn, the collision would not have happened.

Unless the collision report indicates the other driver is at fault, then it is very likely that your friend will be the party responsible for this.

- Carl

 

[agrieder]

Carl,
In case you're wondering why I'm taking so much time on this is because I am unemployed due to lay off so I thought I would do as much leg work for my friend as I can.
Do you know what the statute of limitation is, if any, on getting one or both of the prior convictions overturned? Remember we're talking almost three years ago. From what I understand it's a max of one year to actually file suit against the private attorney for ineffective assistance of council but can the case actually be overturned? If he were to approach the lawyer that first represented him and point out that he missed a biggie in his defense can that lawyer go back and clean up the mess. I just got off the tel with a lawyer that said it still may be possible but wasn't 100% sure. He did say if anything, he may be able to contact the bar assoc. in the town where the attorney practices and they may order him to return some of the fees for negligence or legal malpractice. I guess my question to you is can the case be over turned or at least brought back into court which at the end of the day is more important than the money. The biggie is I recently learned that a person calling 911 and reporting you swerving is not probable cause for an officer to stop you. On top of it, he had pulled off the freeway before the officer got to him because he knew he was too drunk to drive and parked the car and pulled the keys out of the ignition. He even tossed them in the back
seat. The officer said he approached him because of the caller on the freeway. Shouldn't the attorney he paid $10,000 to have known that? From what the lawyer just said on the tel he may have a shot.... Do you have any thoughts?

 

[CdwJava]

Carl,
In case you're wondering why I'm taking so much time on this is because I am unemployed due to lay off so I thought I would do as much leg work for my friend as I can.

I wsa beginning to wonder if you and your friend were one and the same ... it HAS happened, ya know.

Do you know what the statute of limitation is, if any, on getting one or both of the prior convictions overturned?

The time to have appealed his PRIOR convictions has likely long passed. I believe he would have had 6 months to file an appeal. And on what grounds woul dhe seek them being overturned?

Besides, the priors do not effect THIS case, directly ... they would, however, have some effect on sentencing.

I just got off the tel with a lawyer that said it still may be possible but wasn't 100% sure. He did say if anything, he may be able to contact the bar assoc. in the town where the attorney practices and they may order him to return some of the fees for negligence or legal malpractice.

It is VERY tough to get a case overturned on ineffective counsel. In essence, your friend would have to prove that he was only convicted because his attorney made a grievous error that resulted in the conviction, and that the error was not based upon some reasonable or legal assessment. This is a tall order. Plus, given the amount of time that has passed, I doubt that it would be possible to sue or overturn the prior.

Plus, if he has the money to spend on appealing a 3-year-old case, he might be better advised to spend it defending this one! He'll need a good attorney and some expert witnesses to even have a shot at winning if the other party had so much as a scratch.

The biggie is I recently learned that a person calling 911 and reporting you swerving is not probable cause for an officer to stop you.

You learned only part of it ... the 9-1-1 call CAN be sufficient reasonable suspicion to justify a stop if combined with other factors (including acts that are dangerous to the public) or the description is so definitive and lacking vagueness ("a yellow VW bug headed west on Main Street driven by a female with brown hair ...") that it can establish said suspicion.

By itself, a vehicle swerving may not be sufficient to justify a detention. But, that's not an absolute.

On top of it, he had pulled off the freeway before the officer got to him because he knew he was too drunk to drive and parked the car and pulled the keys out of the ignition. He even tossed them in the back
seat. The officer said he approached him because of the caller on the freeway. Shouldn't the attorney he paid $10,000 to have known that?

They had observed driving - the caller. The rest can be based upon the circumstances when the officer contacted him. If they got a call of a drunk driver and had a description of the vehicle, and moments later find the vehicle on the side of the road where the sole occupant and (presumably) owner of the car is seated and impaired, that is sufficient.

If this 9-1-1 call is the shot in the dark trying to say the other attorney was incompetent, that's a huge "Hail Mary".

From what the lawyer just said on the tel he may have a shot.... Do you have any thoughts?

If he has the money, almost anything can be given "a shot". From what you write here, given the time delay and the circumstances, I suspect that going after any priors is a waste of time and money. But, if he has both to waste, it's his choice to make.

- Carl

 

[agrieder]

I'm sure the "friend" and the "writer" can be one in the same. The bar association did say that this can be addressed via a fee dispute resolution which is very informal and at no cost. If the bar does decide that the attorney did not adequately address the 911 call and the way he was stopped it can be an ineffective assistance of council issue. They, the PD's, said even if the description of him and his car were exact the officer would have had to witness the "swerving" himself, which he obviously did not. They also agreed my friend can get 50% or more of his fees back and possibly go back before a judge. I am waiting on a definitive answer on the possibility of case being heard again. I think it would have made a big difference in the case but I'm obviously not a lawyer or legal expert of any kind. Wouldn't the initial police contact make a very big difference? They (the bar assoc.) went on to say the original private attorney may even clean up the mess free of charge to avoid having to return any money....that is if the case can be heard again. This entire endeavor supposedly will not cost much and not take much time. I thought it was kind of interesting. In speaking with the various public defenders the fact that the officer said, "I am approaching you because of a call..." was illegal. I realize this conflicts with what you are saying but they were pretty adamant about it. Obviously, I have no idea what is and what is not legal but all four of them agreed completely and said it is worth pursuing both from a financial reimbursement standpoint and cleaning up his record.

 

[CdwJava]

The bar association did say that this can be addressed via a fee dispute resolution which is very informal and at no cost.

That's internal and involves fees - it does NOT deal with the appeal issues at all.

If the bar does decide that the attorney did not adequately address the 911 call and the way he was stopped it can be an ineffective assistance of council issue.

I cannot imagine they will go that far. He would likely have to hire an attorney to make the case for ineffective counsel in an appellate court. The finding of the Bar - even if they find him in error (which I doubt as chances are they are not going to delve that deep into the issue), it does nothign to change the end result of the case and would not prove to an appellate court that there was, indeed, ineffective counsel.

I still contend that the prior is a red herring as it does nothing to help in his current case. And if he has that kind of money, he needs to worry about THIS case, not something that happened years ago and was likely addressed at the original trial anyway.

They, the PD's, said even if the description of him and his car were exact the officer would have had to witness the "swerving" himself, which he obviously did not.

The officer can still contact someone parked along the side of the road. There was no detention until AFTER the contact, so it's a moot point.

If John Q. Citizen can walk up and talk to a person parked on the side of the road, so can the police.

Wouldn't the initial police contact make a very big difference?

Lawful cause for the detention would have been established at trial. From what you have thus far written, I don't see how this is even an issue. Had the car been stopped whil in motion, MAYBE there could have been an issue. But, an officer is free to investigate parked cars and contact anyone they want on the side of the road. If during that contact they smelled alcohol, and based upon the previous call and their observations the officer can articulate impairment and driving, you have DUI. The place to litigate that would have been at trial.

The number of cases that get overturned due to ineffective counsel is quite minuscule.

And, again, the time for appeal has long since passed so he would have to pay a lot of money to attempt something that does him no real good at this time.

They (the bar assoc.) went on to say the original private attorney may even clean up the mess free of charge to avoid having to return any money....that is if the case can be heard again. This entire endeavor supposedly will not cost much and not take much time. I thought it was kind of interesting.

You will note that they did not say your friend had a case, only that this was how he might pursue a complaint through the Bar Association, and what the end results might be. They are not going to tell you or him over the phone what merit his complaint might have.

In speaking with the various public defenders the fact that the officer said, "I am approaching you because of a call..." was illegal.

Then they misunderstood you, or you misunderstood them. I can approach and contact anyone I want. What I might NOT be able to do is detain or arrest them after contact.

If he has the money to pay for lawyers to pursue appeals and his current criminal case, he is free to do so. He has a right to try. I just don't think he should get his hopes up because there is nothing that you have articulated here that lends itself to much hope. There may well be some facts that are present in the original case that DO lend some credence to a claim of malpractice. But, in my experience, cases of malpractice resulting in a new trial on appeal (which would be the likely result - NOT exoneration) are extremely rare.

As I understand the previous case, the police were drawn to him because of a 9-1-1 call that identified him and/or the car ... the police saw the car on the side of the road and made contact believing he was the person reported on the call ... on contact, they developed independent cause (odor of alcohol, objective signs of impairment, etc.) that he might be under the influence of drugs or alcohol ... a subsequent investigation resulted in an arrest for DUI. if that' about it, I don't see the grounds for the appeal or ineffective counsel. He doesn't have a right to be impaired in public on alcohol or medication, and the police do not need reasonable suspicion or probable cause to contact someone sitting in their car. If any member of the general public can do it, so can the police. If there is something missing, feel free to add it, but if that is the case in a nutshell, then I strongly suspect he will be throwing good money after bad to try and overturn one previous conviction which will result in a new trial and will do nothing for his current DUI case. If he has the money, he needs to spend it on the new case.

- Carl

 

[agrieder]

Hey Carl,
I just realized my last post just really rehashes the last post and your answers. Now I am actually finding conflicting info on the web and disputes. The PD's seem to agree but there are sited cases that indicate otherwise. Please disregard my last posting.

 

[agrieder]

I just sent you my last message and didn't see that yours had come through. I see what you're saying. I guess where I'm stuck is the fact that the officer specifically told him I am approaching you because of the call. That is to say he would not have if the call was never made. So many sites and the PD's say that is not legal. The main reason they give is because road ragers, gang bangers and people with vendettas will make false anonymous tips and use this type of thing as a weapon....

 

[CdwJava]

I just sent you my last message and didn't see that yours had come through. I see what you're saying. I guess where I'm stuck is the fact that the officer specifically told him I am approaching you because of the call. That is to say he would not have if the call was never made. So many sites and the PD's say that is not legal. The main reason they give is because road ragers, gang bangers and people with vendettas will make false anonymous tips and use this type of thing as a weapon....

The subjective reasoning behind the officer's contact will not be important. The issue would be whether it was lawful or not. I suspect that the way it was related to any attorneys you or he might have spoken to is what caused a response saying it was unlawful. The fact is, that such a contact in a public place IS lawful. Had they detained the vehicle moving on the road, then the contact might have been arguable if there was no other observed violation and the caller had been anonymous ... but, on the side of the road? Nothing unlawful there at all.

- Carl

 

[agrieder]

Hi Carl,
I read a couple of other posts by you concerning how long the DA has to file charges and they didn't really fit my situation. My friend called the DA's office yesterday and was told the paperwork was there but nothing has been filed and there is a chance nothing will be when he appears for his arraignment. May I ask how long the DA has to actually file charges in a DUI case?

 

[CdwJava]

My friend called the DA's office yesterday and was told the paperwork was there but nothing has been filed and there is a chance nothing will be when he appears for his arraignment. May I ask how long the DA has to actually file charges in a DUI case?

He has one year. If he has not filed, then one of t three things has likely occurred:

(1) The test results have not come back.
(2) Follow-up has been requested and is forthcoming.
(3) The DA has decided not to file for whatever reason.

Your friend may not know for a year. But, it might benefit him to consult an attorney who might be able to feel out the DA for where things stand. The attorney might be able to make a phone call and find out if he has something to worry about.

- Carl

 

[agrieder]

Thanks Carl,
A year? What if someone is in custody? Does that change it? He's not in custody, I'm just curious. Test results are back so that can't be it. Remember, I was shocked because they stated there was alcohol in his system? It must still be under review. I seriously doubt they're not going to file something. Are you familiar with the DMV hearing process. Does the court hearing/ruling/no-filing have any or absolutely no bearing?

 

[CdwJava]

Thanks Carl,
A year? What if someone is in custody? Does that change it?

It could. If he were in custody, he would have to be arraigned within 48 hours (2 business days), and after that speedy trial rights would apply unless waived by the defendant (and they often are).

Are you familiar with the DMV hearing process. Does the court hearing/ruling/no-filing have any or absolutely no bearing?

The DMV hearing officer is generally not going to care about the court's delay. The two matters are separate from each other. The DMV hearing is limited to whether the officer had probable cause for the stop, and whether there was good cause to believe he was at or above a BAC of .08.

- Carl

 

[agrieder]

Thanks again Carl.

 

[agrieder]

Hi Carl,
Yes it's me again. Sorry to keep coming to you with this but it's getting more interesting. The arraignment is tomorrow but charges haven't even been filed yet so there will be no court appearance. The interesting part is my friend admitted to me that he feels he does have a problem with the Valium he is taking and wants to go into a program to get help. He is at a minor amount (10mg daily) but just can't seem to stop. If he did that would that be an admission of guilt? Also, he has been in contact with the DMV and they claim it doesn't matter what the outcome in court is. Even if the charges were completely dropped, they will still most probably suspend his license. Personally I can't understand that but they said they only go by two criteria. 1) Was he in fact the driver of the vehicle? 2) Did the officer have probable cause? Is a minor fender bender probable cause? I guess it would be. I just can't swallow the fact that his license could be suspended before an actual arraignment or charges being filed. As I said before, he did not think the cars made contact. He just thought it was a close call and felt the wind move his car as the other one passed. That is how minor it was. The DMV also stated that even if he was found innocent he could not appeal the DMV's decision. Well, actually he can appeal within 15 days of the DMV hearing but it doesn't matter if the courts have even arraigned him yet. He can ask for a DMV departmental review or a court review in the county of his residence that I found kind of odd. The DMV review costs $120. Do you see any point in doing that if the initial decision was to suspend? Also, is there even a point in asking for a review by the superior court in his county? Can one be done without the other? I would think the best thing to do would be to ask for the review in the superior court of his county rather than just going back to the DMV again. Sorry about all of the questions but this just does not make sense. He will also be asking for a sample of the blood so he can have his own analysis done. He wants to obviously do it now before the DMV hearing. Is there a chance that can happen? I told him I didn't believe so because he could replace the blood. If he asks for another analysis for DNA and/or BAC it is my understanding that would be a huge expense even though it's relatively inexpensive in an independent lab. I read numerous stories where the blood tested got mixed up with blood belonging to someone else. It has actually happened in the county he is being charged more than once. That has to be what happened here. I don't mean to offend you but if he did ask for that and they did it how does he know he can still trust the results? Do you know how asking for this blood retest is done and what the best way to do it is?