Until recently, there were counties in this country which would tie you down and force draw your blood if you refused to give a voluntary sample during a DUI arrest. This barbaric tactic, while not used in Los Angeles County, was widely used by law enforcement in other counties in order to assist them in proving their case for DUI.

It constituted the best of both worlds for the prosecution because they were able to both charge you with a refusal enhancement for refusing to submit to a post-arrest chemical test, and simultaneously use your blood alcohol concentration to prove the necessary element of being under the influence for the purposes of DUI.

The Supreme Court of the United States has spoken on this issue and their holding is clear:  if you want to conduct a forced blood draw of a suspect in a DUI case, you need to first obtain a warrant.  The likelihood is that as a result of this holding, forced blood draws will be eliminated entirely; or alternatively reserved for severe DUI cases rather than simply run of the mill traffic stop DUI cases.  A DUI attorney will have a less challenging time holding the prosecution to their burden with this change in the law.

The SCOTUS decision can be found here.

Diana Weiss Aizman

Lindsay Lohan was arrested last night in New York City. After attending the Justin Bieber concert at Madison Square Garden, Lohan went to a Manhattan night club where she reportedly had an altercation with another patron of the club.  The allegation is that Lohan punched the other woman in the face and tried to leave the club.  NYPD was called and ultimately arrested Lohan while she was trying to leave the area.  She was taken to the station and cited out to come to court.

Lohan is currently on probation in her theft case in Los Angeles County.  Because she picked up a new misdemeanor case in Santa Monica stemming from a traffic collision in which she allegedly lied to the police, Lohan’s probation will be revoked at her arraignment for that case.  This new arrest could end up being grounds for a further violation of the theft probation.  A condition of Lohan’s probation is to “obey all laws” and therefore the Judge would only need to find that it was more likely than not that Lohan broke a law in order to violate her probation for the battery conduct.

Even if Manhattan prosecutors decide not to file charges against Lohan in the battery case, the Judge in Los Angeles could find Lohan in violation of probation.  The standard of proof for an open criminal case is beyond a reasonable doubt.  This is substantially higher than the standard of proof in a probation violation.  The standard of proof in a probation violation is preponderance of the evidence.  This means that if it is more likely than not that Lohan punched the woman, she can be held in violation of probation.  Lohan is entitled to a probation violation hearing whereby she would be permitted to confront and cross examine any witness against her.  If at the end of the hearing the Judge finds that it is more likely than not that she violated a law, she can be held in violation of probation and potentially sentenced to jail.

It can happen to anyone.  You’ve had a few drinks and it’s time to get home.  You feel ok to drive and no one expresses concern about your ability to do so.  On your way home, you see the red and blue lights in your rear view mirror.  You’re being pulled over.  Now what?

In California, most law enforcement officers will go through the same steps in a DUI investigation.  The first thing an officer is trained to do is tell you why you were stopped (or ask if you know).  Depending on the driving pattern or if the officer is part of the DUI task force, they will already assume you have been drinking.  Now they’re just looking for clues to back up their assumption.

Objective Symptoms of Intoxication

While you are answering the officer’s questions, he/she is looking for certain clues as to just how much you have had to drink.  They are determining whether they smell alcohol, whether your speech is slow or slurred and whether your eyes are red and watery.  This is all in the first encounter.  The more you say, the more ammunition you give them for their police report.  This is why hiring an experienced dui attorney is extremely important.  They’re watching how easy it is for you to remove your license from your wallet.  If they ask you to step out of the car, they are watching how you move; whether or not your gait is steady.

Questions

All officers are trained to ask a series of questions that help the prosecution build a DUI case against you.  Not all officers ask these questions, however the reports that include the answers to the questions are very helpful for the prosecution. The most important thing a prosecutor needs to know in building their case is what you have been drinking and when your last drink was.  The most common answer given to officers is “a couple of beers a few hours ago.”  This is tantamount to shooting yourself in the foot.  If your last drink was a “few hours ago”, your body is eliminating the alcohol it has in its system.  This means that as time goes on, your blood alcohol concentration is getting lower and therefore at the time of driving, we can assume that the level of alcohol in your system is higher than what comes up in the test.  There are scientific formulas to determine just how much higher.  But it’s safe to say that if your last drink was “hours ago” and your blow indicated a reading of 0.11% with the sample being given one hour after you were stopped, your level was at 0.13% at the time of driving.

Field Sobriety Tests

The National Highway Traffic Safety Administration has standardized certain field sobriety tests to ensure that they are being administered properly by police officers.  Usually, this means that if the test was properly administered, it should be a good indicator of the level of intoxication of the subject.  The problem with these tests (both standardized and not) is that people of different coordination levels will always perform differently whether intoxicated or not.

A person with excellent core strength, for example, will perform much better on the one leg stand test than an out of shape person whether or not that person is under the influence.  These tests are designed to trip you up.   In addition to testing your physical agility (at which you may be poor even without alcohol), they test your ability to follow instructions.  They will give you a series of instructions and if you miss any of the steps in the process, you will be deemed to have “not performed as explained and demonstrated.”

Preliminary Alcohol Screening Test

Some officers have been issued a preliminary alcohol screening test.  This device is a hand held breath testing instrument that tests the level of alcohol in your breath.  The law requires that the officer take a few steps before administering this test.  The first is that they must watch you for a period of 15 minutes before asking you to blow into the instrument.  The second is that they must inform you that the test is voluntary and you have the right to refuse it.  The 15-minute observation period usually occurs while you are completing the field sobriety tests.

Implied Consent Test

In California, when you received your driver’s license, you signed paperwork giving your implied consent to submit to a blood or breath test if ever arrested for driving under the influence.  By law, you are required to take this test and failure to do so can have additional consequences upon a conviction.  The choice of whether to submit blood or breath belongs to you.

So What Are Your Rights?

Many people complain to their criminal defense attorney that they were never read their Miranda rightsduring the DUI investigation.  The reason the officer didn’t read you your rights before asking you questions is because he/she doesn’t need to by law.  A United States Supreme Court Case called Berkemer v. McCarty held that questions asked pre-arrest in DUI investigations were NOT subject to Miranda warnings.

This does not mean that you must answer any questions.  You still have the right to remain silent.  When the officer asks you questions regarding your drinking pattern, or where you were going or coming from, you may politely decline to answer those questions.  If you are not polite, the officer will include this in the police report.

You also are not obligated to perform any field sobriety tests.  The tests are designed to give the prosecutor ammunition in court.  If you are being asked to perform field sobriety tests, you will be arrested regardless of how you perform on them.  They cannot help you.  You will not be released if you “pass” these tests.  Do not agree to take any of these tests.

You are not required to provide a breath or blood sample until AFTER you have been placed under arrest.  If the officer offers you a preliminary alcohol-screening test (the hand held breath test), you should ask if you are “under arrest.”  If the officer answers that you are in fact under arrest, you must submit to this test, but you are not required to submit to any further testing.   Usually, however, the officer will answer that you are not yet under arrest and they may even lead you to believe that if you blow a low enough number they will release you.  The likelihood is that 1. You will not blow below a 0.08% and 2.  Even if you do, they will still arrest you and leave it to the prosecution to decide whether or not to file charges.   Do not submit to a hand held breath test if you are not yet under arrest.  All it does is give more evidence and ammunition to the prosecutor.

Whether you submit to the questions and testing or not, you will be arrested.  The less information the prosecution has about your actual level of sobriety, the less they can use to prove their case to a jury beyond a reasonable doubt.

Once you are arrested, you must, by law, submit to a blood or breath test.  Which test should you choose?  The test result that will be most scrutinized by a jury is the breath test.  The instruments that these tests are administered on are flawed and often malfunction.  This leads to a distrust of breath testing instruments by jurors.  Whereas with blood testing, there is very little to dispute.  The only benefit with a blood test is that the law enforcement agency must preserve a sample for the defense to test by an independent lab.  In a rare instance, an independent lab test will show a result lower than the law enforcement lab result.  This is rare, and cannot be counted on.  Breath tests are easier to dispute and therefore should be the method of choice.

How to Find a DUI Attorney

Hiring an attorney who knows the science behind DUI can make a huge difference in your case.  An attorney should have an intricate understanding of the defenses in your case and should be specially trained in the law pertaining to DUI.  They should know what documents to request from the prosecution to help mount your defense.  DUI’s are not defenseless, you just have to know how to navigate the complicated science and use it to your advantage.

Diana Weiss Aizman

The United States Supreme Court has ruled in a 5-4 decision that it is unconstitutional to sentence juvenile offenders to life without the possibility of parole (LWOP) for murder.  Under the new ruling, the most severe possible sentence that can be handed down in a juvenile case is life with the possibility of parole.

The primary objective in juvenile cases is rehabilitation over punitive actions.  It makes sense that the Supreme Court would eliminate the possibility of an LWOP sentence in juvenile matters because delivering an LWOP sentence would send the message that if a juvenile offender commits a murder they are beyond rehabilitation.  Juveniles are young enough that there is always a possibility of rehabilitation.  The Supreme Court in its ruling conveyed the message that there are no juveniles that are beyond rehabilitation.

Brian Banks was a star football player at Long Beach Poly High School.  He had offers of a full scholarship from USC and was being actively pursued by other Division 1 teams.  His future was bright and his path to success was clear.  At age 16, it seemed like life was going in the right direction…until he crossed paths with Wanetta Gibson.

In 2002 when Banks was 17, he left class to use the restroom when he ran into Gibson in the halls.  After fooling around with Gibson, Banks returned to class and went about his day.  Gibson reported the encounter as a rape and Banks was subsequently arrested and charged with forcible rape.  The Los Angeles District Attorney’s Office pursued a rape case against Banks even though there was no evidence to support or corroborate Gibson’s fictitious account.  They just took her word for it.

Banks hired an attorney who presented him with the DA’s offer of 5 years in state prison and a mandatory lifetime sex offender registration.  Rather than run the risk of being convicted by a jury and sentenced to 41 years to life, Banks accepted a plea bargain that his attorney believed was in his best interests.

After being released, Banks was contacted by Gibson via Facebook.  Banks convinced Gibson to meet with him and a private investigator to discuss the case.  Gibson, not knowing she was being recorded, confessed to fabricating the allegation and facts to support it.  She confessed that she lied to the police and ruined the life of a young man who had a promising future.  She confessed that these lies resulted in a $1.5 million settlement against the school district and she did not want to return the money and therefore was hesitant to clear Banks’ name.

Ultimately, this information was brought to the attention of the attorneys at The Innocence Project in San Diego.  They presented the case to a Judge who immediately exonerated Banks.  The District Attorney’s Office has made it clear that they would not seek to re-try Banks because they are interested in “justice”.

This case is not an example of justice.  This is just one of the many instances where the criminal justice system has failed.  Banks and his attorney had so little faith in the jury trial system that they decided it was better to brand him a rapist and limit his exposure to 5 years in state prison rather than life.  They had so little faith in the system that he would rather register as a sex offender for life and plead guilty to a crime he clearly did not commit in order to take the control out of the hands of a jury and an over aggressive prosecutor.  Justice would have been served by declining the filing of uncorroborated charges back in 2002.

Banks is now free to pursue his dreams.  If only justice could give him 5 years of his life back.