According to an October 28, 2010 Orange County Sheriff’s Department Press Release, Roving DUI Saturation Patrols are scheduled for Costa Mesa, Cypress, Garden Grove, Irvine, La Palma and the South Orange County Cities this upcoming Halloween weekend.  The South Orange County Cities will likely include: Lake Forest, Laguna Hills, Laguna Niguel, Dana Point, Mission Viejo, San Juan Capistrano and San Clemente.  According to the Press Release, the DUI Patrols will be working Friday, October 29, 2010 through Sunday, October 31, 2010 in the aforementioned cities.

As the authors of the Press Release indicate: Drivers Should Be Aware: Buzzed Driving is Drunk Driving, so be careful out there when celebrating Halloween.

CALIFORNIA JUDGE RULES THAT NEW IID-RESTRICTED
LICENSE ELIGIBILITY LAW INCLUDES DUI OFFENDERS WITH
VIOLATION DATES EARLIER THAN JULY 1, 2010 

DMV CONTENDED THAT ELIGIBILITY WAS LIMITED TO DRIVERS WITH VIOLATION DATES SUBSEQUENT TO ENACTMENT DATE 

Mann County Superior Court Judge Verna A. Adams ruled in favor of a California man seeking the reinstatement of his driver’s license following a second offense DUI conviction under law that went into effect on July 1, 2010. 

40-year-old Dominique Niki Matteo was convicted of a second offense DUI on July 15, 2010, following his arrest on February 23, 2010. After having served 90 days of a license suspension, Matteo sought the reinstatement of his license subject to his installing an ignition-interlock device (IID) in his vehicle. The IID prevents the operation of a vehicle if the driver has been drinking.

The DMV rejected Matteo’s application for an IID-restricted license, contending that the new law does not apply to offenders with violation dates earlier than July 1, 2010. Finding that the legislative intent of the new law was to encourage all multiple offenders to install an IID in their car, Judge Adams ordered the DMV to grant Matteo an IID ­restricted license. 

The new law (Senate Bill 598) amends California Vehicle Code section 13352, making most second-time offenders eligible for an IID-restricted license after 90 days of suspension and most third time offenders eligible after 180 days. Those persons refusing a chemical test and individuals found to be impaired by drugs are ineligible.

Comments by Matteo’s attorney, Paul Burglin, which were echoed by his co-author, Barry T. Simons—the Co-Author of “California Drunk Driving Law”: The California Legislature has studied the drunk driving problem and concluded that public safety is enhanced by encouraging multiple offenders to install an IID in their vehicles. Too often these individuals will simply transfer a car out of their name to avoid a court-ordered IID, but by providing an incentive to legally drive they are more inclined to actually install the device. This new law is not about being soft or sympathetic to drunk drivers—it is about implementing a new tool to combat this epidemic.

The authors of “California Drunk Driving Law” share this excellent summary of: (1) California’s new Ignition Interlock Device (IID) Restricted License amendments; and (2) the mandatory Ignition Interlock Device IID program.

The New IID Restricted License Laws—SB-598 and SB-895 (Effective: July 1, 2010)

CVC § 13352(a)(3)—IID restricted license available to second-time offenders convicted of CVC §§ 23152(a) or (b) after 90 days, unless the defendant was found by the Court to be under the influence of a drug or the combined influence of drugs and alcohol. For those who qualify, credits should be given for APS suspension time.

CVC § 13352.5—Work-related restricted license, which continues to be available to second-time offenders after 12 months of suspension, without the need for an Ignition Interlock Device; but the IID restricted license referred to above would still be available to the same offender after just 90 days of suspension.

CVC § 13352(a)(5)—IID restricted license available to third-time offenders convicted of CVC §§ 23152(a) or (b) after 180 days, unless the defendant was found by the Court to be under the influence of a drug or the combined influence of drugs and alcohol. For those who qualify, credits should be given for APS suspension time.

CVC § 13353.3(2)(B)—APS suspension for multiple offenders administratively suspended for excessive blood alcohol levels, who are also convicted of a CVC § 23152 offense arising out of the same incident, may have the APS suspension terminated if IID restricted license obtained pursuant to 13352(a)(3) or (5).

Questions That Remain Unanswered By These New Statutory Amendments:

1. Will the law be applied retroactively to persons convicted before July 1, 2010?

The latest information we have is that it is going to be applied prosectively only.*

2. Will persons suffering an excessive BAC one-year suspension, but who are not also convicted of a CVC § 23152 offense arising out of the same incident, be allowed to terminate the APS suspension with installation of an IID?

The written law does not provide for it; but a denial of it lacks a rational basis and leads to an absurd result.

3. Will the DMV continue to impose a license suspension/revocation for second and third time offenders convicted of drug-related CVC § 23152 convictions, even though CVC § 13352(a)(3) and (5) have been amended to only trigger a suspension or revocation for alcohol-only CVC § 23152 offenses?

Independent Mandatory IID Pilot Program For Persons Convicted In Alameda, Los Angeles, Sacramento, and Tulare Counties (effective July 1, 2010):

CVC § 23700 requires the DMV to maintain a pilot program from July 1, 2010 through January 1, 2016 in Alameda, Los Angeles, Sacramento, and Tulare counties, requiring ignition interlock devices for all vehicles owned or operated by DUI offenders. The duration period for the device is as follows:

CVC § 23152 conviction CVC § 23153 conviction

First Offense: 5 months & 12 months

Second Offense: 12 months & 24 months

Third Offense: 24 months & 36 months

Fourth Offense or More: 36 months & 48 months

These IID Orders are to be issued and monitored by the DMV upon receipt of the abstract of conviction, and verification is required before a driver’s license may be issued, reissued, or returned to the licensee after a suspension or revocation of that person’s driving privilege. 

CVC § 23700(a)(3)—Actual operation of this new statute is subject to funding approval which has apparently been provided by the federal Office of Transportation.

There are a number of exemptions that defendants may seek with the DMV within 30 days of receiving its IID Order. See CVC § 23700(a)(8) for the complete list. 

IID devices are not required for motorcycles, but those subject to the IID requirement may not operate their motorcycle during the IID restriction period. See CVC § 23700(e).

These IID requirements should only apply to convictions with violation dates July 1, 2010, or later, but it remains to be seen if the DMV will attempt to apply it to all convictions in these counties suffered July 1, 2010, or later, regardless of the violation date.*

California Drunk Driving Law (Kuwatch, Burglin & Simons)

Evaluating the constitutionality of a drunk driving tip to the police, with checklist.  

When evaluating the constitutionality of a detention based on a tip to the police, one must preliminarily note the distinction between “anonymous tipsters” (folks who telephone the police about a crime, but do not identify themselves and are not known to the police), “government agents” (snitches working for the constable) and “citizen informants” (chance witnesses or crime victims who expose their identity). With regard to “anonymous tipsters” and “government agents,” there is no presumption of reliability attached to their reports. With “citizen informants,” however, there is a presumption of reliability, but even this presumption does not “dispense with the requirement that the informant—whether citizen or otherwise—furnish underlying facts sufficiently detailed to cause a reasonable person to believe that a crime had been committed….” People v. Ramey (1976) 16 Cal3d. 263, at 269.  

If the officer making an enforcement stop does not know whether the tipster exposed his identity, then the source of the information must be treated as an “anonymous tip.” This is because the constitutionality of the detention turns on what the officer knew prior to the enforcement stop, People v. Ramey (1976) 16 Cal3d. 263, 268, and “a police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law.” People v. Miranda (1993) 17 CA34th 917, 926 (emphasis added).  

All that being said, however, an anonymous and uncorroborated phone tip about a potential drunk driver may trigger the “public safety” exception to the Fourth Amendment, even where the police do not independently observe anything unusual about the motorist or his driving prior to the enforcement stop. People v. Wells (2006) ___ Cal.4th ___ (Docket No. S128640).  

The Wells Court presumed the caller was anonymous because of a silent record on this point. The dispatcher broadcasted “a possibly intoxicated driver ‘weaving all over the roadway,’” and described the vehicle as an “80’s model blue van traveling northbound on Highway 99 at Airport Drive.” The officer, who was heading southbound 3 to 4 miles away from that location when he got the call, positioned himself on the shoulder of northbound Highway 99. “Two or three minutes” later he saw a blue van traveling approximately 50 miles per hour. He made an enforcement stop without independently observing any unusual, suspicious, or illegal driving.  

Citing “the grave risks posed by an intoxicated highway driver,” the Wells Court held in a 4-3 decision that a brief, investigatory stop was justified under the circumstances. While approving a lower court ruling in Lowry v. Gutierrez (2005) 129 CA4th 926, and following a non-binding federal opinion in United States v. Wheat (8th Cir. 2001), 278 F.3d 722, the Court declared that “there is a sound and logical distinction between the vehicle stop in the present case and the frisk found unconstitutional in [Florida v. J.L. (2000) 529 U.S. 266 (anonymous tip reporting a young, African-American man in a plaid shirt, standing at a particular bus stop and carrying a gun)]. Seizing on J.L.’s statement that there may be “circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability…[such as a report] of a person carrying a bomb…,” J.L., at 273-274, the Wells Court found that a “drunk driver is not at all unlike a bomb, and a mobile one at that [citing the Vermont Supreme Court in State v. Boyea (2000) 765 A.2d 862, 867-868].”  

As in Wheat, the Court further found that the tip’s lack of “predictive information” was not critical to determining its reliability. It also cited Michigan Department of State Police v. Sitz (1990) 496 U.S. 444, 455, for the proposition that the high Court has sanctioned the “stopping of all drivers to investigate possible drunk driving despite any articulable facts indicating an immediate risk of harm.”  

In a well-reasoned dissent, J. Werdegar (joined by J. Kennard and J. Moreno) took the slim majority to task for its attempt to distinguish the circumstances from those in J.L., and for “unpersuasively [attempting] to fit this case into a possible exception mentioned by the J.L. court.” She mocked them for simply “assuming that the tip came from another driver with personal knowledge defendant was weaving all over the roadway,” when there was nothing in the record to support that assumption. She noted that Sitz, supra, involved the detention of every motorist, and that the Sitz Court had specifically noted that the “‘detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.’ (Id. at 451, italics added).”  

The dissent further declared, however, that “[h]ad the police obtained the name and telephone number of the tipster, this would be a different case.” Furthermore, that “[t]he observation of even a small deviation, such as weaving slightly within a lane, may, when coupled with the anonymous tip, have been sufficient to justify a traffic stop.”  

The lawfulness of a detention based on a tipster’s report of a drunk driver had splintered the appellate courts in California since the U.S. Supreme Court’s seminal decision in J.L. which rejected the argument that the mere prompt verification of the description of a particular person, at a particular location, renders a tip sufficiently reliable, holding that the reasonable suspicion standard “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Id., at 272.  

J.L. distinguished its ruling from Alabama v. White (1990) 496 U.S. 325, where the Court upheld a detention based on an anonymous tipster’s report that a woman carrying cocaine would be leaving an apartment building at a specified time, get into a particularly described vehicle, and drive to a named motel. The White ruling, in what the high Court said was a “close call,” turned on the trial court’s finding that police observation after the tip showed that the informant had accurately predicted the woman’s movements, whereas the tipster in J.L. only reported that the suspect was hanging around a certain bus stop (i.e., it provided no predictive information, leaving the police without any means to test the informant’s knowledge or credibility). “If White was a close case on the reliability of anonymous tips, this one surely falls on the other side of the line,” wrote Ruth Bader Ginsburg for the majority. With that comment, the majority clearly indicted that the warrantless detention in J.L. was not even a close call in terms of being unconstitutional.  

Until Wells, J.L. seemed to abolish California’s “Willard rule”—that a drunk driving detention is legal where a tipster simply uses the magic words, “he’s drunk,” and points out a motorist to the police. People v. Willard (1986) 183 CA3d Supp. 5. Wells arguably resurrected the Willard rule. In People v. Dolly (2007) 40 Cal.4th 458, the California Supreme Court held that an anonymous 911 tip contemporaneously reporting an assault with a firearm and accurately describing the perpetrator, his vehicle, and its location is sufficient to justify an investigatory detention. The Dolly Court distinguished its holding from Florida v. J.L., on the basis that a violent crime was reported as having just taken place. The tipster also gave reasonable explanation (his fear of perpetrator) for not identifying himself. See also, People v. Lindsey (2007) 148 Cal.App.4th 1390 (anonymous tipster reported that defendant fired gun—detention upheld); Lowry v. Gutierrez (2005) 129 CA4th 926 (anonymous tip deemed legally sufficient basis to detain a motorist, though Court said it was a close call and noted that a precise description of the driver’s actions (wrong way driving and left turn into oncoming traffic) had been described by the caller.  

The Dolly decision overrules People v. Jordan (2004) 121 CA4th 544 (even a 911 call with extensive detail about a man with a gun was held to be an insufficient basis for a warrantless patdown where the caller was not known to the officer).  

People v. Rodgers (2005) 131 Cal.App.4th 1560 rev. granted, involved an anonymous tipster reporting a man with a gun in a car threatening to kill his female passenger. Following Lowry, supra, the Court held that a moving vehicle creates an exigency not present in J.L., supra. Likewise, People v. Castro (2006) 138 CA4th 486, held that an anonymous tipster’s report of a driver, threatening to kill his wife, amounted to an exigent circumstance justifying a traffic stop.  

In People v. Saldana (2002) 101 CA4th 170, the court held that an anonymous tipster calling from a pay phone did not justify a stop, detention and search. The anonymous telephone tip did not include predictive information and the observed corroboration that a vehicle fitting the description was indeed present at the described location did not corroborate the criminal element of the tip. This drug case does not involve, however, the report of a drunk driver (though it does involve a man with a gun and a kilo of cocaine!).  

In United States v. Morales 252 F3d 1070 (9th Cir 2001), the Ninth Circuit clarifies the numerous U.S. Supreme Court holdings on anonymous tips, saying, first of all:  

Thus, what the Supreme Court teaches in Gates [Illinois v. Gates (1983) 462 U.S. 213], White [Alabama v. White (1990) 496 U.S. 325], and J.L. [Florida v. J.L. (2000) 529 U.S. 266], is that in order for an anonymous tip to serve as the basis for reasonable suspicion: (1) the tip must include a “range of details;” (2) the tip cannot simply describe easily observed facts and conditions, but must predict the suspect’s future movements; and (3) the future movements must be corroborated by independent police observation.  

PRACTICE TIP:  

In dealing with a tipster issue, the following are some important things to consider:  

• Was the report made by an anonymous tipster, government agent, or citizen informant?  
• Was the call made to a general police line or to an emergency (e.g., 911) line?  
• Did it sound like the caller was speaking under the stress of excitement?  
• To what extent did the caller identity the suspect and the vehicle?  
• Did the caller describe the basis for his conclusion that the suspect was drunk or impaired, and if so, to what extent?  
• Did the caller give predictive information about the suspect’s future movements?  
• What facts, if any, heightened the need for immediate action (e.g., driving through a carnival or out on some country road)?  
• Did the officer independently observe anything about the suspect or the vehicle that gave him grounds to make an enforcement stop?  

Remember that the prosecution bears the burden of proof when it comes to a warrantless detention, and that the constitutionality of a detention is determined by what the officer knew at the time he made the stop. It is often wise to not ask a question in a Pen. C. §1538.5 motion to suppress hearing where the evidence has not yet proven a particular point.  

Stale Information?  

Suppose the police get a call about a certain vehicle weaving all over the road, but do not encounter the vehicle and driver until a couple of hours later. In that situation, the tip may have been sufficient at its inception for a warrantless detention, but no longer since the tipster’s information has arguably become stale.  

“The question of staleness turns on the facts of each particular case. (Alexander v. Superior Court (1973) 9 Cal.3d 387, 393; People v. Gibson (2001) 90 Cal.App.4th 371, 380.) If circumstances would justify a person of ordinary prudence to conclude that an activity had continued to the present time, then the passage of time will not render the information stale.” People v. Hulland (2003) 110 CA4th 1646, 1652.

Brought to you by the authors of California Drunk Driving Law (CDDL)

http://www.jamespublishing.com/articles_forms/DrunkDriving/tipsters_CA_public_safety.htm

According to the Orange County Sheriff’s Department website, the James A. Musick Facility is a one hundred acre minimum security facility known as “The Farm.” The facility is located in an unincorporated area of the county near the cities of Irvine and Lake Forest. The facility was originally opened in 1963 and was named in honor of James A. Musick, who was the Sheriff of Orange County from 1947 to 1975. Originally the facility held a maximum of 200 male minimum-security inmates and was referred to as the “County Industrial Farm” or the “Honor Farm.” The inmates housed at the facility are considered to be a low security risk and most are in jail for crimes such as driving under the influence, minor drug possession, burglary, failure to pay child support, and or prostitution. Inmates who have committed violent crimes, sex crimes or mayhem are not eligible for transfer to the facility. The compound currently houses minimum security inmates with 256 beds.

Sheriff Sandra Hutchens recently announced that the East Compound of the James A. Musick Facility will close. If the inmate population allows the compound to remain closed, the savings is estimated to be more than $1 million annually. According to the Press Release, there will be no early releases due to the closure and most of the inmates will be assigned to other sections of the Musick Facility. About 40 inmates will be transferred to either the Orange County Sheriff’s Central Jail or the Theo Lacy Facility.

According to the Press Release, jail staff assigned to the East Compound will be transferred to other duties in an effort to reduce overtimes costs. Maintenance and repairs will continue to be done to the East Compound while it is closed.

The James A. Musick Facility offered educational programs that enabled inmates to receive a G.E.D. while still being incarcerated. Training in agricultural skills was offered as part of the plan and balanced agricultural program. Special emphasis was placed on the production of vegetables and eggs which were used within the department’s Food Services Unit.

Friday, December 18, 2009:

DUI/DL Checkpoint (Anaheim) 7:00 p.m.-to-3:00 a.m. (Including DUI Saturation Patrols)

DUI/DL Checkpoint (Buena Park) 7:00 p.m.-to-3:00 a.m.

DUI/DL Checkpoint (Garden Grove) 7:00 p.m.-to-3:00 a.m.

DUI/DL Checkpoint (Placentia) 7:00 p.m.-to-3:00 a.m.

DUI/DL Checkpoint (Cypress) 7:00 p.m.-to-3:00 a.m.

DUI/DL Checkpoint (Westminster) 7:00 p.m.-to-3:00 a.m.

DUI/DL Checkpoint (Stanton) 7:00 p.m.-to-3:00 a.m.

Saturday, December 19, 2009:

DUI/DL Checkpoint (Garden Grove) 7:00 p.m.-to-3:00 a.m.

DUI Saturation Patrols (Anaheim) 8:00 p.m.-to-3:00 a.m.

DUI Task Force Operations (Placentia, Buena Park, La Habra & Fullerton) 8:00 p.m.-to-2:00 a.m.

Sunday, December 20, 2009:

DUI Saturation Patrols (Fullerton) 8:00 p.m.-to-3:00 a.m.

Saturday, December 26, 2009:

DUI Saturation Patrols (Anaheim) 8:00 p.m.-to-3:00 a.m.

Thursday, December 31, 2009:

DUI Saturation Patrols (Anaheim) 8:00 p.m.-to-3:00 a.m.

Saturday, January 2, 2010:

DUI/DL Checkpoint (Aliso Viejo) 7:00 p.m.-to-3:00 a.m.

According to the Press Release, in addition to the above-listed operations, the Orange County Sheriff’s Department, as well as Police Departments for the cities of Brea, Cypress, Fountain Valley, Huntington Beach, La Habra, Los Alamitos, Newport Beach, Placentia, Westminster, and the California State University at Fullerton will be holding DUI  Saturation Patrols over the entire holiday season.

If you, or anyone you know, has been charged with driving under the influence as a resut of a DUI Checkpoint and/or DUI Saturation Patrol, contact the Law Office of Barry T. Simons for a free consultation at: 949-497-1729.

According to a Orange County Sheriff’s Department (OCSD) Press Release dated December 2, 2009, the Orange County Sheriff’s Department will be conducting DUI roving patrols in the Cities of Laguna Niguel, Aliso Viejo, Laguna Hills and Laguna Woods on Friday, December 4, 2009.  The effort is part of the on-going “Avoid the 12″ DUI Task Force program.  These Multi-City DUI Teams will be targeting areas that high a high incidence of DUI related arrests and collisions.  Funding for this program has been provided by a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration (NHTSA).

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