Recent Blog Posts

Anniversary of Pearl Harbor and Our Need for Vigilance

Richard Middlebrook — Wed, 08 Dec 2010 13:33:00 GMT

If asked, I wonder how many people would say that they feel more attacked by their own government than by outside countries or groups.

On December 7, 1941, the Japanese began a surprise attack on our western fleet located at Pearl Harbor. A day that will live in infamy had begun. For generations, the attack has become a distant reminder to stay vigilant of attacks from the outside. But nearly 70 years later, most of us feel more onslaught from inside our own government than from any outside group or country.

From the heavy burdens of taxation to the stripping of fundamental Constitutional rights, most Americans feel most attacked internally, not externally. Our own government has continued an oppressive campaign against it's own citizenry.

While the obvious internal threats are clear (taxation, over regulation of industries, laws that take up thousands of volumes), some threats come at night while nobody is watching...in the twilight.

One of my favorite quotes:

"As nightfall does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air - however slight - lest we become unwitting victims of the darkness." Justice Douglas

Those incursions come daily. They come with decisions small and large. Most seem insignificant at the time and only in retrospect with the light of change is it more apparent what was lost. Rights are won in huge momentous sweeps like the Revolutionary War, but are lost with one law and one legal opinion at a time.

Those rights don't just disappear. They are gently pried from good people's hands in exchange for what appear good and honorable trade offs: "security" or "regulations".

The problem is that the stripping of liberties effects everyone universally, not just those "bad" people. From decisions allowing virtually unlimited entry to your home without a warrant or even a reasonable suspicion that some illegal activity is occurring to simple falsification of documentation and records to justify the convictions of drivers accused of being under the influence, the rights of fairness and privacy are slipping away almost unnoticed.

Just yesterday, I had a member of California Highway Patrol admit that he had failed to calibrate preliminary alcohol breath testing devices for months and months. They are required to be calibrated every 10 days or 150 tests. He continued to allow those devices to be used by patrol officers who believed those devices were accurate and could be relied on to arrest drivers. The reason this was allowed: He forgot to order enough calibration solution and it took months to get new batches.

What does that mean? It means that machines that wouldn't be admissible in court were being used to arrest people and the only person who knew this, told nobody. Hundreds of people were arrested based on results from inadmissible machines.

Need more? The Kern County District Attorney's Crime Lab has a policy of backing up chemical test results regularly from the hard drive to a back up drive. The two forensic alcohol analyst charged with that responsibility simply "forgot" to do so...for eight months. When the lab hard drive failed and was unrecoverable, thousands of test results and data supporting them, simply disappeared.

The analysts admitted their error to their supervisor, who told the lab chief. He of course reported it to his supervisor at the Kern County District Attorney's Office asking them to tell "anyone" who would need to know; implicitly he meant the defendants and their representatives. This was important. It meant the District Attorney did not have the necessary evidence to admit chemical test results in hundreds and hundreds of cases. This would mean possible reduced penalties or dismissals of cases.

How many defendants were notified? NONE. How many attorneys were told? NONE! How did we find out? Internal memorandum produced in discovery responses that took years to obtain.

Hundreds of people were railroaded into pleas where the evidence had simply disappeared due to lab misconduct and malfeasance and it was disclosed to nobody until nearly two years later. This was well after all those cases had been pled or gone to trial.

This is your government at work. One that believes the ends (those ends that they deem socially, morally and ethically acceptable) justify the means. We must be vigilant or the twilight will close into darkness before you even notice the change occurring.

If you aren't a DUI driver, why worry? Because if falsifcation of records is overlooked here, it is permissible to be overlooked everywhere. In the valuation on your home and the property taxes you pay. On tax returns and audits. On licensing authorizations. On internal bidding for projects and contracts. If the courts allow these errors as simple "mistakes" to justify the admissiblity of results without support, then those rights are stripped forever in all governmental "mistakes".

Be vigilant!

Specialist Member Status

Richard Middlebrook — Sat, 20 Mar 2010 13:20:00 GMT

At the Board of Directors Meeting of the California DUI Lawyer's Association meeting on March 12, 2010, I was elected to Specialist Member status within the organization. I am the only Kern County attorney so delegated and couldn't be more grateful to the board for their support and confidence. The requirements for Specialist Member as a minimum:

1. Been a member of the California State Bar for not less than five years,

2. Within the past three years, instructed or attended and completed not fewer than 20 hours of educational programs approved for State Bar M.C.L.E. credit pertaining to drunk driving or related areas of criminal defense

3. Been defense counsel of record:

A. In not less than 70 DUI cases, of which not less than 20 have been submitted to jury for decision; and

B. In any two of the following categories arising out of a drunk driving incident:

i. not less than five PC §1538.5 proceedings to decision;

ii. not less than five petitions or answers in extraordinary writ proceedings;

iii. not less than three appearances of record in the California Courts of Appeal which resulted in written opinions; and ten additional jury trials submitted for decision.

Thoughts from Mr. Lawrence Taylor- Dean of DUI

Richard Middlebrook — Mon, 08 Mar 2010 13:51:00 GMT

Drunk driving is bad. It's potentially dangerous to human life. It should be punished. So, many years ago a law was passed:

"Thou shalt not drive drunk".

It was a fair law and it addressed the problem. So...what happened? Why do today's laws punish drivers when they are neither "drunk" nor "driving" - nor even in a "vehicle"?

"Drunk"

The original laws prohibited driving a vehicle "under the influence of alcohol" - commonly referred to as "DUI". In some states, it's called "DWI" (driving while intoxicated) or "OUI" (operating under the influence). In other words, the accused had to be (1) driving (2) a vehicle (3) while intoxicated to the extent that he or she was unable to safely operate it.

This changed a few years ago with the passage of so-called per se laws. Prosecutors and groups like MADD were frustrated with the difficulties in proving that a driver was, in fact, under the influence. So legislators, anxious for re-election endorsements from prosecutors, police and MADD, passed a new law:

"Thou shalt not drive with a blood alcohol level of .10% or more."

Well, this made it much, much easier to convict citizens suspected of drunk driving. First, prosecutors no longer had to prove that a driver was impaired in his judgment, reflexes, perception and coordination. All they had to do was produce a number: .10%. Never mind that the American Medical Association conducted studies and announced in 1938 that a driver was only "impaired" at .15%. Never mind that MADD was later successful in getting the number reduced further down to .08% (and is lobbying for further reduction to .05%). And never mind that every person's tolerance to alcohol varies widely - that some drivers may be under the influence at .07%, while others may not be intoxicated at .11%. The law was no longer interested in whether the driver was a danger or not: the crime was in having alcohol in your body.

The second reason the new per se laws were wildly popular with prosecutors, police and MADD was that the arrested citizen could now be charged with both crimes - DUI and .08%. This had two big advantages. First, it gave the prosecutor two shots at the defendant; if he didn't get him for one, he might get him for the other. Second, it gave juries that were unsure of the defendant's guilt an option: convict him of one charge but acquit him of the other. Juries that were not unanimous could use this as a compromise - even if some jurors felt the accused was not really proven guilty.

Just to make it even easier, many courts have followed the California Supreme Court in ruling that the breath alcohol reading cannot be questioned on the grounds that it does not accurately reflect the alcohol actually in the person's blood. See Bransford v. California. (One dissenting justice in that case, less concerned with politics than with common sense, wrote: "The majority...has on its own created the new crime of driving with alcohol in one's breath.")

"Driving"

The second half of drunk driving is..."driving". This would seem obvious: how can you be driving under the influence if you're not...well, driving?

No problem. If you have judges who do not want opposition from prosecutors, police and MADD at the next election, you will have strange judicial interpretations of what "driving" means. And in recent years there has been a flood of judicial interpretations which have stretched the word beyond recognition. A couple of examples:

Sleeping in (or near) the car. See my posts Sleeping Under the Influence, How to "Drive" Under the Influence While Sleeping, Convicted of Drunk Driving Without Driving and When Does the Insanity End?

Sitting in a parked car. See Parking Under the Influence and Sitting in a Parked Car

"Vehicle"

Just as the judges stretched the meaning of "driving" beyond the limits of credulity, so they also expanded the definition of what constituted a "vehicle". Now, a "vehicle" is commonly understood to mean a car or truck, and so it has been applied for decades. But this, too, has been slowly expanded to include such "vehicles" as:

Bicycles. See my posts DUI on Bicycles, Felony DUI Bicycle and DUI While Walking a Bicycle

Lawnmowers. See More News From the Front and The "War on Drunk Driving" Marches On

Horses. See DUI on a Horse

Wheelchairs. See DUI in a Wheelchair

Toy bikes. See DUI on a Foot-High Toy Bike

Golf carts. See The War on Drunk Driving Continues

Zamboni ice machines. See News From the Front

As Humpty Dumpty explained to Alice so many years ago:

"When I use a word", Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is", said Alice,"whether you can make words mean so many different things."

"The question is", said Humpty Dumpty, "which is to be master - that's all."

We used to have laws punishing drunk drivers. They were good laws, designed to protect citizens. Whatever happened to them?

By LAWERENCE TAYLOR

Holiday Driving

Richard Middlebrook — Tue, 22 Dec 2009 15:21:00 GMT

By now, most of us are aware that law enforcement will be out in force during the holiday season in an attempt to cut down the number of DUI Drivers. It is always best to look for a designated driver BEFORE heading out this season. However, if you are stopped for DUI here a few simple suggestions to remember:

Always be polite

Deciding to reenact all those movies where Vin Diesel mouths-off to cops is probably a bad decision at this point. Most officers will be stern and direct. They are taught to keep "control" of the situation; Not to look weak. Challenging that, rarely benefits you. They have a plethora of means to keep you quiet and make sure they get the respect they think they deserve. From simply locking down the cuffs a little more than necessary to "assisting" you to the ground to claiming you resisted arrest and they only imposed the necessary force to detain you when pummeling you with batons and tazers, cops will win the battle of wills. Guaranteed. Even though you may disagree with their assessment of you or your driving, now is not the time to argue. Be polite and courteous.

Keep your license, insurance and registration close at hand and easy to access

Listen, everyone become a little skittish around cops. I am not sure whether it's our parents jamming guilt down our collective throats or just the nature of man, but we all feel a little guilty most of the time. Sometimes justified...alright, usually justified. That is only exponentially enhanced when you had a "dog and a beer" at the game. Nothing makes the butterflies start dancing in the belly and your nerves sparking like a fallen electric wire more than having "beer breath" and seeing those lights pop on behind you. From the moment you are approached by the officer, EVERYTHING is being watched. Everything. Because only behavior consistent with intoxication gets to the police report, you can rest assured nobody is cutting you a break for nerves. Keep your license, insurance and registration in an easy to access location. Don't fumble for it. Even if it is nerves, you will have universally confirmed the cops suspicion if you can't produce the documents smoothly.

Dont Answer Any Questions...PERIOD!

You are required to provide information to the officer about who you are, and whether your car is registered and insured. Everything else...100% optional. While asking what may seem to be innocuous questions, the officer is judging you. Whether your speech is thick, slurred or mumbled. He is watching your reactions. And believe me, you are not receiving any benefit of the doubt. Your answers to the questions, even if they do properly place them in the report, are only repeated when consistent with you being intoxicated. You will be berated and besmirched for every one of your answers, even if they aren't really, completely what you said. Questions like: Are you injured? Have you had an accident? Where were you going? What have you had to drink? When did you start drinking? When was your last drink? and so on, are only meant to elicit incriminating statements. Remember No. 1 above...be polite. But simply state, "I would prefer not to answer any questions. Thank you"

Never, Never, Never Do Field Sobriety Gymnastics!

So the kindly officers asks you step out of your vehicle so that they can perform a few tests on you to make sure you're sober and you'll be on your way. Not a chance! He isn't asking you to perform tests to prove you are sober, he is doing it to prove you are not. Out of 24,000 or so separate field sobriety tests I have seen reported, I can count on my fingers and toes the combined total an officer has said were performed "satisfactorily". That includes hundreds of cases where where blood alcohol came back below the legal limit and tens that showed absolutely no alcohol or drug impairment at all. A University study took 53 people and videotaped them doing Standardized Field Sobriety Tests. Those tapes were played back to experienced DUI/DWI officers. Nearly 80% were found to be under the influence based solely on their performance on the tape. Problem: Every single one hadn't consumed any alcohol or drugs. Period. The gymnastics they ask you to perform are nearly impossible.

The Million Dollar Question...or What Could Be, On Average, A $50,000 One

Breath, blood or none of the above? If there was an easy answer, I would be purchasing my Four Seasons Vacation Hut on a Motu in Bora Bora right now. Unfortunately, there isn't one. Obviously, if you haven't consumed alcohol or drugs, skip to the field breath test and if arrested ask for blood. I am guessing most of us already knew that. Let's get to the meat. First issue: Do you need your license or a clean record more? If you refuse a test, you could lose your license for a year with no restriction; However, very difficult to convict. Second Issue: If you feel ANY effect of the alcohol, there is a good shot you are above the legal limit. Third: If you test, Breath or Blood? If you feel the effects, refuse the in-field alcohol test. There isn't a penalty. Then ask for blood. If you had the proverbial "one for the road" or few more right before you drove, take the infield and opt for breath. Every case is different. But these general rules can be life savers..

New DUI Blog!

Kern County DUI Attorneys — Wed, 30 Sep 2009 18:43:00 GMT

Welcome to our new DUI blog! Check back soon for updates!