It has been reported that the Office of Traffic Safety has announced that another $8 million has been allocated for law enforcement activities that deter driving under the influence in California.  This increase from $5 million in 2009 to $8 million in 2010, will be used to fund DUI checkpoints throughout the state.  This is an increase of about 47% and the grant money will be shared among 148 law enforcement agencies.  We have already seen an increase in the number of DUI Checkpoints and Roving DUI Saturation Patrols scheduled by local Orange County law enforcement agencies in 2009, the number in 2010 will be astounding.  The director of the Office of Traffic Safety commented that California conducts more DUI checkpoints than any other state and that 2010 will be “the year of the Checkpoint”.

Senator John Kerry’s Daughter Arrested for DUI

According to news reports, Senator John Kerry’s daughter, Alexandra, was arrested on suspicion of DUI early Thursday morning in Los Angeles, California.  According to news reports, Kerry, who works as a film director / producer, was arrested shortly after midnight and released after posting bail.  A court date has been scheduled for December 10, 2009.

She may catch a break, though, according to “Celebrity Justice” at TMZ.Com.  According to that report, police took Alexandra to the station and then conducted a formal blood alcohol test which showed a blood alcohol level of 0.06%, which is below the legal limit of 0.08%.  According to the report, “the L.A. City Attorney probably won’t prosecute Alexandra because generally they won’t go after people with under a .08 unless the driving is really crazy.”  

The purpose of this post is not to publicize Ms. Kerry’s arrest for driving under the influence; rather it is to address the distinction between the two DUI charges found under the California Vehicle Code.  Vehicle Code § 23152(b) is a per se charge, meaning, you are in violation of Vehicle Code § 23152(b) is your blood or breath alcohol test reveals a result of 0.08% or more. Vehicle Code § 23152(a) is a catch-all statute, meaning you can be in violation of this section if you were under the influence of alcohol or, alcohol and drugs. The difference is that you can be below a 0.08%, but still be impaired to the degree required within the meaning of Vehicle Code § 23152(a). The significance of this is that many forensic scientists that work for the government will routinely opine that you can be impaired at a 0.05%; thus, even if you are below a 0.08%, you may still be impaired within the meaning of the statute and, consequently, the government can still charge you with driving under the influence.

To view the Celebrity Justice article, please visit:

http://www.eonline.com/uberblog/b154554_john_kerrys_filmmaker_daughter_elects.html

Red Light Cameras May Actually Cause More Traffic Collisions & Create Higher Risks to Drivers

I was recently watching the 11 o’clock news on Channel 2 (CBS-Los Angeles/Southern California) regarding the effectiveness of red-light cameras.  The CBS news story, which was accompanied by a website article (http://cbs2.com/goldstein/Red.Light.Cameras.2.1301941.html), told a story different from that which the government presents in support of using red-light cameras.  As the article points out, videos provided by companies that sell red-light camera systems show gruesome accidents and red light violators caught on tape.  It is images like these that help sell cities on the use of red light cameras.   The pitch, according to the article, is that these cameras will increase safety and reduce accidents.  Additionally, the cities will make money on the side at more than $400.00 a ticket. 

But this is just half the story according to CBS news.  According to CBS, after it crunched the numbers, it made some startling discoveries regarding the government’s claim that intersections with red-light cameras are safer.  According to the news story, CBS wanted to know actual numbers of accidents at red light camera intersections to see if they really went down.  To that end, CBS sought to obtain data from local law enforcement agencies regarding traffic collision statistics; but according to CBS, when it tried to contact law enforcement agencies regarding the program, it received responses that “The city would hope that it is the goal of KCBS/KCAL to discuss the positive aspects of the photo red light program”, not the negativie aspects.  Not being able to get the information voluntarily from local law enforcement agencies, CBS filed a public records request.  When CBS got the numbers back, the data told a different story.  The results just may surprise you. 

CBS looked at every accident at every red light camera intersection for six months of data before the cameras were installed and six months after.  The final figures: Twenty of the thirty-two intersections show accidents were up after the cameras were installed.  Three remained the same and only nine intersections showed accidents decreasing.  In some locations, accidents more than tripled.  The reason, according to the news story: “People see the light flash and they slam on their brakes.  That’s just human nature. As a result, more accidents, more rear end accidents.”

According to the news story, study after study revealed that red-light cameras can actually cause accidents.  Now, some cities are taking notice.  Montclaire, Upland, El Monte and Fullerton have all discontinued red-light cameras in part because of accidents.  Huntington Beach broke its contract before it even officially began.  According to a Huntington Beach Police Department spokesperson, “There are quite a few studies out there that will show an increase in rear end accidents in these intersections.”

Dr. John Large, a professor at the University of South Florida, reviewed all of the studies and concluded that: “The use of red light cameras actually put the public at a greater risk.”  “Our opinion is that there is quite a lot of money to be made with the use of these cameras,” Dr. John Large said.  Of course, he’s right.  Los Angeles made over $4 million in 2008 on violators caught on red light cameras.  But the LAPD says it is safety, not money. They say accidents are down.  They showed CBS statistics putting the drop at nearly 34 percent.  But they only count collisions caused by someone going through the red light, not by rear end accidents or any others at an intersection.  “It would be improper to draw a correlation between all accidents going up and the red light cameras,” a spokesperson from the LAPD said. 

Orange County Sheriff’s Department Received Three Year Grant to Fund Efforts to Catch Drunk Drivers

The Orange County Sheriff’s Department has received a three year grant to fund efforts to catch drunk drivers.  The grant, in the amount of $874,852, was obtained by the California Office of Traffic Safety from the National Highway Traffic Safety Administration.  The grant money is to be used to fund sobriety checkpoints and other special law enforcement activities to combat drunk driving in the County of Orange, California.  The grant funds overtime pay for deputies to staff DUI checkpoints, DUI saturation patrols and Court Stings.  Court stings are where drivers whose licenses have been suspended are followed as they leave court to see if they try to drive away.  In such cases, the drivers are apprehended by undercover law enforcement officers.

The grant money will be distributed to mostly to cities in South Orange County, such as Lake Forest, Mission Viejo, Laguna Niguel, Dana Point, San Clemente and San Juan Capistrano, so be looking for increased law enforcement presence targeting driving under the influence in those areas.  If you or anyone you know is charged with a DUI, please contact the Law Office of Barry T. Simons at: 949-497-1729.  You may also visit our website at: www.duilawyerorangecounty.com.

Erasing DUI & Criminal Convictions Pursuant to Penal Code § 1203.4

In light of the worst employment market in years, more and more people are looking at expungements to erase prior criminal convictions while seeking new employment.  According to a recent article in the Wall Street Journal, employers are conducting background checks that look deeper and deeper into the applicant’s past.  The result: a surge of people seeking to legally clear their criminal records as the unemployment rate has increased above 10%, allowing employers to be a bit choosier than they had been in the past.

As the Wall Street Journal article points out, background checks have become more commonplace in the years after the September 11, 2001 terrorist attacks.  They have also become much cheaper with the advent of new and improved database systems kept by both government and non-governmental agencies.  According to the Society for Human Resource Management, an association of Human Resource professionals, more than 80% of companies performed background checks in 2006, compared with fewer than 50% in 1998.

In California, people can expunge their criminal conviction records by filing a motion pursuant to Penal Code § 1203.4.  Expungements do not wipe away all traces of a criminal conviction, but it does allow a person to deny the existence of a conviction in many circumstances.  One must be mindful, however, that such records may still remain on databases that data-harvesting companies offer to prospective employers; such companies are often under no legal obligation to erase or destroy those records.  If you or someone you know is interested in learning more about expungements pursuant to Penal Code § 1203.4, please do not hesitate to contact the Law Office of Barry T. Simons at: 949-497-1729 or by email: info@simonslaw.com.

To view the entire Wall Street Journal article, please visit:

http://online.wsj.com/article/SB125789494126242343.html (Wall Street Journal Article by Douglas Belkin)

The DUI Exception to the Constitution is Real!

Criminal defense attorneys have for years joked that it seemed that there was a DUI exception to the Constitution when laws and procedures that would be clearly unconstitutional in other contexts are upheld by courts when applied to driving under the influence.  Now, the Chief Justice of the United States Supreme Court has recognized that such an exception does indeed exist.

Justice Roberts, in a dissent joined by Justice Scalia, wrote to protest that the U.S. Supreme Court had denied review of a case where the Virginia Supreme Court had overturned a DUI conviction because the police had pulled over a driver based on an anonymous tip. Virginia v. Harris, 558 U.S. ____ (2009).   The Virginia Supreme Court felt that the U.S. Constitution and previous U.S. Supreme Court decisions prevented the police from acting on uncorroborated anonymous information.  Most states, including California, have ruled that the police may stop drivers suspected of driving under the influence based solely on anonymous information, and even without any specific evidence of impaired driving, but merely that the driver is “drunk.”  See People v. Wells, 38 Cal.4th 1078 (2006).  Other states, including now Virginia, have ruled that the police must have some corroboration of anonymous information before detaining a person.  Roberts seemed to disagree, writing “I am not sure that the Fourth Amendment requires independent corroboration before the police can act, at least in the special context of anonymous tips reporting drunk driving.”  [Emphasis added].  Roberts was especially concerned about the 13,000 allegedly DUI related deaths each year.  He went on to note that “this court has in fact recognized that the dangers posed by drunk drivers are unique, frequently upholding anti-drunk-driving policies that might be constitutionally problematic in other, less exigent circumstances.” [Emphasis added]. There it is, in writing.  Drunk driving warrants exceptions to the Constitution.  At least they have finally come out and said so.

While nobody argues that driving under the influence can be dangerous, it might help to put the 13,000 deaths a year in some context.  According to the latest data available from the Centers for Disease Control and Prevention, heart disease is our greatest killer, taking over 630,000 of us each year. (Deaths: Final Data for 2006, National Vital Statistics Reports, Vol. 57, no. 14, April 17, 2009).  That’s over 48 times more deaths than DUI.  Maybe the police should be able to stop you for a quick cholesterol and blood pressure check. It would save far more lives.  Cancer takes another 560,000 each year, and strokes another 137,000. Id.  DUI related deaths wouldn’t make it even in the top 15 causes of deaths.  Firearms accounted for over 30,000 deaths, which included 54.6% homicides and 41.4% suicides. Id.  In fact, there were 18,573 homicides in 2006, which is 30% more than the DUI related deaths. Id.  If an anonymous tip of a well described person carrying a gun at a bus stop is insufficient probable cause to justify a stop (see Florida v. J.L., 529 U.S. 266 (2000), given the prevalence of gun related violence just noted, then how can the court justify stopping drivers on similarly uncorroborated tips, just because alcohol might be involved. It is not illegal to drink and drive. It is illegal to drive when the driver is impaired by alcohol.  The police should have to have some evidence of impairment before they can stop a driver. In the balancing of freedom versus safety, Virginia made the right decision.

Drug Detection Breathalyzers?

According to a report in the Egineer Online publication, sensors that can detect illegal drugs are being developed by scientists at Queen’s University Belfast.  The devices will use special gel pads to swipe an individual to gather a sample.  The sample will then be analysed by a scanning instrument that can detect the presence of chemicals within seconds. The scanning instrument will use Raman spectroscopy, which involves shining a laser beam onto the suspected sample and measuring the energy of light that scatters from it to determine what chemical compound is present, making detection faster and more accurate.

Law enforcement agencies are hoping that the new sensors will provide the basis for developing breathalyzers that could be used for roadside drug testing like current breathalyzers test for alcohol because law enforcement officers are currently only able to use a Field Sobriety Tests to determine if a person is driving under the influence of drugs. 

To view the entire article, please visit: www.theengineer.co.uk/Articles/313380/Drug+detection+device.htm

OCSD Press Release: Labor Day Weekend Traffic Safety Checkpoint in Mission Viejo

According to an “Orange County Sheriff’s Department Press Release” dated: September 4, 2009, the Orange County Sheriff’s Department (OCSD) will be conducting a DUI/Driver’s License Checkpoint in the City of Mission Viejo on Sunday, September 6, 2009 from 7:00 p.m. until 3:00 a.m.  The exact location of the checkpoint in Mission Viejo is currently unknown.

According to the Press Release, checkpoints are part of a grant the Orange County Sheriff’s Department received from the State of California Office of Traffic Safety, and are set up to target drivers who are driving a vehicle without a driver’s license or who are driving under the influence of drugs or alcohol.  Funding of this grant was provided by the State of California Office of Traffic Safety, through the National Highway Traffic Administration (NHTSA).

If you or anyone you know is charged with driving under the influence, please have them contact the Law Office of Barry T. Simons at: 949-497-1729 or visit our website at: www.duilawyerorangecounty.com.