In a recent U.S. Supreme Court decision, Lafler v. Cooper (2012), the defendant was convicted after a jury trial and had previously turned down an earlier offer to plea guilty. After the jury trial, he received a sentence that was much worse than the sentence which was included in the pre-trial plea offer. In this case, both parties agree that the defendant chose to have a jury trial based on bad legal advice given during the pre-trial plea negotiations. The Supreme Court indicated that the overwhelming majority of criminal matters are resolved through a plea bargain process and that the appropriate remedy in this case, where faulty advice was given, was to order the district attorney to re-offer the plea bargain which is something that has never been previously required.

In another case, Missouri v. Frye (2012), the defense lawyers did not inform the defendant of a plea offer that had been given to them by the district attorney and eventually the offer expired. The defendant ended up pleading guilty later but on much worse terms. The court again noted the frequency of plea bargains in criminal cases and found that criminal lawyers have a duty to communicate any formal offer from the district attorney. To take advantage of this situation, the defendant has to be able to show (1) a reasonable probability that he/she would have accepted the plea bargain had they been informed of it and (2) that the plea bargain would have been allowed to go through by the court and become final.

Both of these cases are welcome by a Santa Rosa criminal defense attorney, a San Rafael criminal defense attorney, a Napa criminal defense attorney, a Lakeport County criminal defense attorney and a Eureka criminal defense attorney because they gain an advantage for criminal defendants and illustrate that there may still remain five justices on the Supreme Court who will lean toward favoring the rights criminal defendants.

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The California Fifth District Court of Appeals recently held that in an APS hearing, if DMV has established that the blood alcohol tests are “presumptively valid”, the burden shifts to the DUI lawyer to establish that the tests are invalid. This is of concern to a DUI lawyer in San Rafael, Santa Rosa, Napa, Lake County, Ukiah and Eureka. The accused DUI driver in this case contested the suspension of his driving privileges by DMV by asserting that the breath machine had not been tested for accuracy as often as is required. The court ruled that DMV initially has the burden of establishing, by a preponderance of the evidence, that the accused driver’s blood alcohol level was beyond the legal limit. This is simply done by the introduction of the breathalyzer evidence in the arrest report in a DUI case.

Title 17 of the California Code of Regulations, Section 1221.4 requires that all breath machines testing for blood alcohol must be periodically tested every ten days. DMV determined that there is nothing in the Title 17 regulations requiring that the breath test is invalid if the instrument falls out of compliance at some date after the breath test was actually given to an accused DUI driver. In this case, the breath test was administered a day after a required accuracy test on the breath test was conducted. Later, the instrument was not tested at the required interval. In this case, the court ruled that DMV had met its initial burden of establishing a reliable test and the accused DUI driver was unable to rebut the reliability.

It is important for a San Rafael DUI lawyer, a Santa Rosa DUI lawyer, a Napa DUI lawyer, a Lakeport DUI lawyer, a Ukiah and a Eureka DUI lawyer to understand that while in the process of constructing a defense for DMV the focus should be on the compliance period prior to or at the time of their client’s test. Failure of DMV to keep any particular machine in compliance subsequent to a particular client’s test appears to have become irrelevant.

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Recently, there have been various news reports claiming that hundreds of drunk driving convictions could be reversed as a result of the discovery in San Francisco that the Preliminary Alcohol Screening (PAS) devices were not being checked correctly. The reports indicate that as many as 1,000 faulty readings may have occurred over the last ten years because of the failure to maintain and calibrate 20 PAS machines being used in San Francisco County. District Attorney George Gascón indicated that his office was reviewing cases for the past five to six years because of the mismanagement of the calibration and maintenance procedures. These devices are supposed to be checked every ten days or every 150 uses but were not. As a result, DUI clients who reside in Santa Rosa, Napa, San Rafael, Ukiah, Lake County or Eureka and sustained convictions in San Francisco County could be affected.

These particular tests are not the required chemical tests. The mandatory chemical tests are referred to as “EPAS” or Evidentiary Preliminary Alcohol Screening tests. A Santa Rosa DUI lawyer, a Napa DUI lawyer, a San Rafael DUI lawyer, a Ukiah DUI lawyer, a Lake County DUI lawyer and an Eureka DUI lawyer should be concerned about their clients who have been convicted in San Francisco County. These lawyers understand that the PAS test given prior to the arrest plays a crucial role in the police officer’s decision to arrest. The EPAS test, which is required by law to be taken by a motorist who is actually arrested for a DUI and the results are generally admissible in a DUI trial.

The primary reason why the discovery of the faulty maintenance and calibration of these machines will not, unfortunately overturn most convictions in San Francisco is that these tests are not required and are only one of a few different tools used by the police to determine whether or not legal justification exists to arrest someone for DUI. Only after an arrest does a person have to take the required EPAS test.

The other factors in a DUI case used in conjunction with a PAS test to determine whether a person should be arrested are the police officer’s observation of the individual’s driving; the police officer’s observation and analysis of the person’s behavior, i.e. bloodshot - watery eyes, odor of alcohol, loss of fine motor coordination, slurred speech, etc. In addition, the police officer’s analysis of the individual’s performance on generally three to five field sobriety tests ( FST’s) factor into the analysis possibly leading to someone’s arrest.

Since the faulty PAS result is only one of numerous tools, it is unlikely that a large number of convictions will be overturned. A Santa Rosa DUI attorney, a Napa DUI attorney, a San Rafael DUI attorney, a Ukiah DUI attorney, a Lake County attorney and an Eureka DUI attorney understand that any overturned convictions will occur only in cases wherein, as an example, the motorist was pulled over for an equipment violation and not for faulty driving; did not display a series of behaviors that indicated the person was under the influence and performed fairly well on the field sobriety tests or refused the field sobriety tests. In these cases, there may be insufficient legal justification for the police officer to have arrested the individual for a DUI and, therefore, any other evidence was unconstitutionally obtained by the police.

These PAS Intoximeter machines are not strangers to problems. Last year, Santa Clara County developed condensation problems with the Alco Sensor V and discontinued using it. In Santa Clara County, approximately 1,000 DUI cases were reviewed regarding the faulty Alco Sensor V and the results only included three to four pending cases being dropped, and no previously entered pleas being reversed. Approximately 65 cases were dismissed in Ventura County in 2001 because of the condensation problem.

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Those opposed to the punishment of death as a criminal sentencing issue have submitted over 800,000 signatures to put a measure on the November ballot that would, in essence, replace a death penalty sentence with a sentence of life without the possibility of parole. If successful, this would be the first victory for criminal attorneys against capital punishment since it was reinstated in 1978. Among other arguments for its passage by criminal defense lawyers are that it will save the state hundreds of millions of dollars that could be better spent on education, general public safety, etc.

Many California criminal attorneys including criminal lawyers in Eureka, Ukiah, Lake County, Napa, Santa Rosa and Marin agree with this proposition. Nothing is more expensive in the criminal sentencing arena than the death penalty. There are currently 725 inmates on death row. Replacing a death sentence with a mandatory life sentence will stop the unnecessary squandering of money. Death penalty issues cost $184 million a year more than life without parole. A three year study regarding the death penalty in California estimates that taxpayers have paid $4 billion in this regard since 1978 and during that period of time only 13 prisoners were executed.

This initiative is going to require the acquisition of 504,000 valid endorsements to get this matter on the ballot in November. Our office is encouraging criminal lawyers from Eureka, Ukiah, Lakeport, Napa, Santa Rosa and Marin County to support this proposition. Supporters indicate that while the initiative would eliminate death sentences, it would be replaced with an ironclad guaranty that the worst criminals would remain in prison for the rest of their lives.

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The exclusionary rule is a legal concept that traces its strength to the decision of Map vs. Ohio, (1961) 367 U.S. 643 wherein the Supreme Court stated a very simple rule to keep the police from conducting illegal searches and seizures by stating that “all evidence obtained by searches and seizures in violation of the Constitution is . . . inadmissable.” Every Sonoma County Criminal Attorney, Napa Criminal Attorney and Marin Criminal Attorney knows that the use of this rule can benefit their clients when the police overreach. It appears, however, that the rule is being weakened on a case by case basis and was once again assaulted in the more recent decision of Davis vs. United States, (2011) 131 S.Ct. 2419.

Criminal lawyers and attorneys in Sonoma, Napa and Marin are aware that the court held in its recent Arizona vs. Gant decision that the police may conduct a warrantless search of an automobile that belongs to someone who has just been arrested only when the “arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” In the Davis decision, the police violated this rule but because the violation occurred before the court actually decided the Gant case, the search was actually legal at that particular time. The issue for the Davis court was whether or not the evidence should be excluded even though it violated the Fourth Amendment.

The court embarked on a long and laborious description of the history of the exclusionary rule and then made a decision that evidence will only be excluded in situations where the police exhibit deliberate, reckless or a grossly negligent disregard for an individual’s Fourth Amendment rights and will not exclude it when the police misconduct is isolated, non-reoccurring or negligent.

This trend, unfortunately, is typical of the longstanding erosion of a criminal defendant’s rights by continually watering down the exclusionary rule and the Fourth Amendment. It was expected that, with the addition of Justice Kagan and Justice Sotomayor who replace Justice Souter and Justice Stevens, that the primary makeup of the liberal wing of the Court would remain. Clearly, this decision indicates the possibility of a separation by these two Justices from the segment of the Court that has historically protected defendant’s rights.

Notice - The foregoing information is provided by Ronald Dinan & Associates for the following entities: Santa Rosa Criminal Lawyer, Santa Rosa DUI Lawyer, Santa Rosa Criminal Attorney, Santa Rosa DUI Attorney, Marin Criminal Lawyer, Marin DUI Lawyer, Marin Criminal Attorney, Marin DUI Attorney, Napa Criminal Lawyer, Napa DUI Lawyer, Napa Criminal Attorney, Napa DUI Attorney.

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A warrantless entry by police into someone’s house can now be based on an “emergency aid exception” that only needs to be established by facts which produce an objectively reasonable basis. The police do not need a high level of proof of a likely serious life threatening injury to rely on the emergency aid doctrine. They only need an objectively reasonable basis and that basis does not have to be established by proof of probable cause, which is a much stronger requirement. The California Supreme Court indicated in its decision in the case of People v. Troyer (2011), that the police must make split second decisions and these decisions are as to whether someone may need immediate aid and not whether someone could be arrested for a crime. Santa Rosa Criminal Lawyers, Napa Criminal Lawyers and a Marin Criminal Lawyers will certainly interpret this decision as another step towards the Court allowing police easier access to everyone’s home.

The Justices further stated that even a protective sweep for the safety of the police and others did not require a higher probable cause level of justification. If the police have an objectively reasonable basis for believing that someone in the house was seriously injured or is being threatened with serious injury then they may conduct a protective sweep. It is during these sweeps for either emergency aid or for protection of others that the police often find incriminating evidence.

In this particular case, the court indicated that there was an objectively reasonable belief because (1) one or more shooting victims could be inside the house inasmuch as there was blood present that indicated a shooting had occurred close to the doorway indicating that someone who was bleeding had either entered or exited the residence and (2) the original dispatch information indicated that a male had been shot and yet no male victim had been located and (3) a person who was still present gave inconsistent responses that were evasive as to whether any one who needed assistance was inside the house. The court surmised that since it was possible that a male victim or some other victim was in a locked upstairs bedroom, the entry into the bedroom was justified.

When Santa Rosa Criminal Attorneys, Marin Criminal Attorneys and Napa Criminal Attorneys analyze this decision, there will no doubt be common agreement that our rights to keep police out of our homes are eroding.

Notice - The foregoing information is provided by Ronald Dinan & Associates for the following entities: Santa Rosa Criminal Lawyer, Santa Rosa DUI Lawyer, Santa Rosa Criminal Attorney, Santa Rosa DUI Attorney, Marin Criminal Lawyer, Marin DUI Lawyer, Marin Criminal Attorney, Marin DUI Attorney, Napa Criminal Lawyer, Napa DUI Lawyer, Napa Criminal Attorney, Napa DUI Attorney.

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The Press Democrat recently reported that Santa Rosa police officers will construct a DUI checkpoint on the east side of Santa Rosa. The checkpoint will run from 7:00 p.m. Friday to 1:00 a.m. Saturday and could actually include two separate locations.

Police conducting sobriety checkpoints are required to follow strict rules established by the California Supreme Court in Ingersoll v. Palmer. If police do not follow the requirements, evidence gathered from stopping someone at a DUI checkpoint can be thrown out of court. The Supreme Court identified eight factors that minimize the imposition or intrusiveness on the driver while balancing the need to keep California roads safe for all drivers.

These requirements include (1) Requiring that supervisory police officers establish the location of sobriety checkpoints to reduce random enforcement, (2) Placing a limit on the discretion of police officers to stop drivers at the checkpoint by requiring police to use a neutral mathematical formula such as every fourth driver, every sixth driver, etc., this prevents arbitrary or random enforcement, (3) Requiring the primary consideration of maintaining safety for all motorists and officers, including proper lighting, warning signs, using identifiable official vehicles, etc., (4) Using checkpoint locations that focus on areas that have a high amount of alcohol related accidents or DUI arrests, (5) Restricting the actual timing and duration of the checkpoint, (6) The establishment of checkpoints with high visibility including flashing warnings, adequate lighting, police vehicles, presence of officers in uniform, etc., (7) Assurances that the police only detain a motorist for a brief questioning to look for signs of intoxication such as slurred speech, glassy or bloodshot eyes or impaired motor coordination. (Only if an officer determines that they perceive signs of impairment from a motorist can they then further detain the motorist by having the motorist drive to an adjoining area for further investigation.), and (8) Providing advance notice of the road block, although identification of the specific location is not required.

A motorist may try to avoid a checkpoint and may not be stopped by the police unless, in so doing, the motorist commits a vehicle code violation or displays driving consistent with a driver under the influence.

Notice - The foregoing information is provided by Ronald Dinan & Associates for the following entities: Clients and Lawyers in Eureka, Lake County, Ukiah, Napa, Santa Rosa and Marin.

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