San Diego DUI criminal defense lawyers explain how a person arrested for drunk driving has a right to choose whether to take a breath or a blood test. With the recent McNeal ruling, one is going to choose a San Diego DUI breath test. Breath tests are not reliable and one's partition ratio may be far different than the number the machine assumes you have. That's because people are different. You can try to legislate physiology but it's not necessarily well-founded in science.

If arrested for a San Diego DUI and you ask for a breath test, it is the officer's responsibility under the law to make sure you get that test you choose. The officer is not supposed to make you take a blood test simply because the officer wants to do that. The right to choose which test is a statutory animal, not an officer's whim.

Only if you are unable to complete the breath test are you required to submit to a remaining test (blood or urine).

San Diego Chargers wide receiver Vincent Jackson was never provided a fair opportunity to complete his chosen breath test. The officer made him do a blood test.

The results of that blood test should have been suppressed by the San Diego Superior Court under the case of Nelson v. City of Irvine, in that it violated his Fourth Amendment rights, which guard against unreasonable search and seizures.

For some strange reason, the Judge said no and now the case will be appealed. That keeps him playing.

"This thing could be in the appellate courts for quite some time," said Cole Casey, Jackson's premier San Diego DUI criminal defense attorney.

Jackson was arrested for a San Diego DUI and pled not guilty.

The NFL has a substance abuse policy which usually leads to a suspension for a second alcohol-related offense. The NFL may take acdtion if a player is convicted of or admits to a violation of the law for alcohol-related offenses.

Jackson pleaded not guilty to the drunk driving charge in February. San Diego DUI criminal defense lawyer Cole Casey correctly pointed out Jackson was forced to have his blood drawn against his will after repeatedly requesting a breath test.

According to this questionable police officer, the machine purportedly didn't immediately accept his breath sample, and Jackson moved slowly while removing personal items to be inventoried. How does inventory of personal property have any material bearing on one providing a breath sample?! This zealous officer jumped to the illogical conclusion that Jackson was refusing the breath test. But all Jackson wanted was the officer to do his job and enable Jackson to provide a completed set of samples.

San Diego DUI attorneys will be watching this appellate process closely.

San Diego California DUI criminal defense lawyers feel at times that police officers exaggerate if not fabricate drunk driving arrest reports.

Cops recently got caught on video in a DUI cover-up case: After a Hollywood Florida police officer rear-ended a car in February and then arrested the driver on drunk driving charges, he and other officers talked about doctoring the report.

In Illinois, 10 false-arrest lawsuits began yesterday in the United States Disctric Court against Joe D. Parker, retired Chicago police officer accused of falsifying information in DUI/ drunk driving arrests.

Chicago's Independent Police Review Authority and the police Internal Affairs Division launched investigations into several of Parker's DUI busts on Lake Shore Drive.

The prosecutor's office is conducting a criminal investigation, possibly targeting the former police officer for any false DUI charges.

Drunk Driving prosecutors have dropped dozens of DUI cases because of questions about Parker's conduct.

Eric Turner, a driver for United Parcel Service, was supended from employment for 5 months because of his allegedly unwarranted DUI arrest.

If you have an issue resulting from a San Diego DUI arrest, contact a competent attorney at 1 800 THE-LAW-DUI to determine your rights. A free consultation is available online today.

Checkpoints often are costly and always intrusive, according to San Diego California DUI criminal defense attorneys. Oceanside's friday night drunk driving checkpoint came up 0 for 487. A wasted effort to screen for suspected drunk drivers produced no arrests on any DUI charge, but lots of government money was spent.

The San Diego county DUI checkpoint was conducted by Oceanside Police Friday from 9 p.m. until 3 a.m. in the 1300 block of North Santa Fe Drive. 487 vehicles did not escape the drunk driving checkpoint. DUI police trying to justify their pay screened 298 vehicles but none of those drivers will need a San Diego DUI criminal defense lawyer.

Hunch & suspicision prompted 8 drivers to be given field sobriety tests but those tested were either less than .08% BAC or had no alcohol in their system. So why bother? Unqualified training in DUI detection?

If you want a qualified DUI attorney, try the San Diego County DUI Law Center at 1 800 THE-LAW-DUI.

DUI attorneys in San Diego have been contemplating how drunk driving & drug cases will be affected in San Diego California after the Melendez-Diaz v. Massachusetts Supreme Court ruling.

The Supreme Court referenced a report which called into question the reliability of forensic science. Rather than neutral scientific fact, crime lab reports are now viewed by the Court as indictments of the defendant and subject to the restrictions of the Sixth Amendment Confrontation Clause.

Some of the latest crime lab scandals prove that live testimony from analysts is needed to explore potential flaws in laboratory reports.

The analyst needs to be interrogated about the process, about the meaning of the lab report as the paper itself cannot be interrogated to establish the strengths and limitations of the analysis.

Often errors just win cases on evidentiary problems as drug screening tests may be scientifically reliable, in general, but the reality is underfunding and increasing instances of human error in forensic laboratories can render results unreliable. A renowned defense lawyer once noted in a speech that often, when there is no not much of a factual defense, since the burden is on the prosecution, a good San Diego DUI criminal defense attorney will attack the state's case.

The Supreme Court decision recognized the problem without addressing it. Without underlying research and standards, nobody knows how reliable the science is. That is why we need a National Institute of Forensic Science.

One state, Michigan, may hold the key to dealing with the burden imposed by the Court’s decision. When the state passed .08 BAC legislation, law enforcement was encouraged to ask for drug and blood screening on all blood draws of suspected impaired driving offenders. This caused a dramatic spike in the caseload for blood/alcohol analysis at the Michigan State Police Forensic Science Division's Toxicology Laboratory. Due to Michigan’s requirement for analyst testimony, lab scientists were forced to spend a significant portion of their workday traveling and testifying in courts across the state. The Michigan State Police decided to implement a video testimony program allowing analysts to testify from their own labs via video transmission. Video technology even allows analysts to schedule multiple testimonies with various courts across the state on the same day. After multiple video testimonies utilized by courts across the state, overall savings are estimated at a thousand dollars per testimony. This technology has also saved the state many staff hours (typically wasted in travel time), utilizing the technology to reduce the time scientists are out of the lab to 30 minutes instead of 14 hours, the Michigan Office of Highway Safety Planning reports. After one full year of operation, the State Police Forensic Science Laboratory experienced a decreased alcohol backlog.

Forensic analysts must now be available to testify if their reports are admitted as evidence. The Court left it to individual states to sort out the logistics of calling analysts to testify, and it is too soon to see the full ramifications of this decision.

As San Diego California DUI defense attorneys look forward to the opportunity to test this decision. DUI cases may have to be reduced to reckless driving because an analyst is not around.

If you need help, contact a San Diego drunk driving defense lawyer who wants to help.

On August 1, 2009, some of the top DUI attorneys in California will speak at the Annual DUI Seminar at Loyola Law School in Los Angeles. Among them: Vince Tucci, Felipe Plasencia, Donald Bartell, Bob Wilson, Al Menaster, David Youssefyeh, and Rick Mueller.

Here's a twit from some of their websites:

Welcome to the website of the DUI defense firm of Braden & Tucci. Our practice is limited to DUI & DMV Defense. I approach every case as if it were my own because it is my own. It is my own reputation that is at stake in each and every case I handle. When I walk into a courtroom, everyone knows that I there handling a DUI case because that is all we do. We are one of Southern California's most respected and feared law firms in the area of DUI & DMV defense. Our firm is dedicated to aggressively defending and protecting people accused of driving under the influence both in court and at the Department of Motor Vehicles (DMV). Our firm enjoys a reputation of surpassing excellence in Southern California for quality trial skills and aggressive representation provided on behalf of our clients. Braden & Tucci concentrates and limits our practice to representing citizens standing accused by the government of driving while under the influence both in court and at the DMV.

Felipe Plascencia is a well-known criminal defense attorney who has been practicing law in Southern California for over a decade. He lectures extensively on current DUI issues and frequently trains other DUI lawyers.

Before opening his own law firm he served as a public defender and has stood up for the rights of clients in courtrooms throughout Southern California. He set the record for the most cases tried and won. He is a warrior for justice and fears no one.

Local police departments and district attorneys gave him the nickname “Felipe Mad Dog Plascencia” because of his aggressive cross-examination of police officers.

He will fight to protect the rights of his clients. He understands the importance and the need for justice. He limits his practice to criminal law and DUI defense.


Donald Bartell is a partner in the law firm of Bartell & Hensel in Riverside, California, and has been in private practice since 1984.

He is on the Board of Directors of the California DUI Lawyers Association, and is a frequent lecturer around California on DUI trial tactics including Lorman's Strategies In Handling DUI Cases seminars. He has been asked to participate in the California DUI Lawyers Association and National College for DUI Defense’s jury research project investigating what arguments resonate with jurors in California drunk driving cases.

Mr. Bartell is a contributing author to James Publishing’s California Drunk Driving Law, and wrote the chapter Defense of Drug Cases in Medical-Legal Aspects of Drugs. http://www.amazon.ca/Medical-Legal-Aspects-Drugs-Barry-Logan/dp/1930056192/ref=sr_1_9/701-0537404-8044366?ie=UTF8&s=books&qid=1197690485&sr=1-9

He graduated from the University of California, Berkeley, and the University of Notre Dame School of Law. Mr. Bartell is a pilot and frequently flies to California DUI courts.

Don is author of a brand new best seller - Attacking and Defending Drunk Driving Tests.


Los Angeles area attorneys Hutton & Wilson specialize in the defense of criminal cases. Both are Certified Criminal Law Specialists as recognized by the State Bar of California and are widely recognized as the top DUI trial firm in the Southern California area including Los Angeles, Century City, Beverly Hills, Malibu, Santa Monica, Pasadena, Glendale, Santa Barbara and Ventura Counties. The firm's goal in every case is to successfully represent the client by winning the Department of Motor Vehicle hearing, and if the driving under the influence charges cannot be substantially reduced proceeding to jury trial. As a result, both partners have tried hundreds of driving under the influence jury trials.

Robert J. Wilson of Hutton & Wilson is a member of the National College of DUI Defense, Treasurer of the California DUI Lawyers Association, Past President of Criminal Court's Bar Association, Member of California Attorneys for Criminal Justice Board of Directors, and a Certified Criminal Law Specialist, California State Bar. Mr. Wilson has successfully represented over 250 individuals injury trials before courts in the Southern California area. Mr. Wilson has represented thousands of drivers before the Department of Motor Vehicles, is a frequent lecturer at DUI seminars throughout the State of California and has spoken to the Department of Motor Vehicles Hearing Officers regarding administrative hearings and due process. Mr. Wilson is a "Recognized Leader" in DUI Defense and is in the forefront of alternative sentencing for multiple offenders facing substantial amounts of jail and/or state prison time.


Attorney Rick Mueller specializes in California DUI and DMV law. He has been in practice since 1983 and received his Juris Doctor degree from Chicago Kent College of Law.

DUI Specialist Rick Mueller is the only DMV - DUI attorney who was the featured Speaker at 7 DUI seminars in San Diego County in the last several years. Rick Mueller is known as the "DMV Guru". On August 1, 2009, Rick speaks at the Mexican American Bar Association's Annual DUI Seminar at Loyola Law School in Los Angeles.On March 28, 2008, Rick lectured on Strategies in Handling DUI Cases in California. On September 27, 2008, Rick lectured at the California Attorneys for Criminal Justice Rules of the Road 2008 DUI Seminar. Rick spoke on "Current DMV Suspension Hearing Issues, Techniques & Writs" at the San Diego County Courthouse. Rick Mueller was the featured Speaker at the DUI - DMV Seminar in downtown San Diego. He also was the DUI - DMV Lecturer at the Public Defender's Office criminal defense seminar.

Having been specially recognized as a Contributor to the California Drunk Driving Law book, he is now an Editorial Consultant for the most comprehensive reference book for California DUI law. Known as California's Bible of DUI Defense, authored by Ed Kuwatch, Paul Burglin (San Francisco) and Barry Simons (Laguna Beach), the book features some of San Diego County attorney Rick Mueller's hard work.

Silva was already on San Diego DUI probation for a prior, was allegedly the aggressor in a road rage incident with a cop. She was allegedly drunk and had drugs in her system and was driving erratically with the boy in her car.
The cop was charged with felony gross negligent discharge of a firearm and a misdemeanor count of exhibiting a firearm but a San Diego County Superior Court jury acquitted him. The cop's San Diego criminal defense attorney contended Mr. White didn't know the boy was in the car when he fired his weapon.

Silva earlier pled guilty to felony child endangerment and misdemeanor San Diego DUI / drunk driving was ordered to return to court with her San Diego DUI criminal defense attorney on in 3 months to see if she's doing what she's supposed to be doing. Silva's San Diego DUI criminal defense lawyer, Michael Pancer, related how she had a difficult childhood that may explain, but not excuse, much of her behavior. Silva's mother suffered from a drug-abuse problem; she lived in group and foster homes while a teenager. “Ms. Silva stands here today as a changed person,” San Diego DUI criminal defense attorney Pancer said. “She knows that she got a second chance in life and she's not going to waste it.”

If she does waste it, it's four years in prison. So far, Silva had undergone 14 months of treatment for substance abuse and anger problems, gaining praise from several professionals who work to help folks in those treatment centers.

If you need help, hire a San Diego DUI attorney who cares.

San Diego DUI cops were busy fishing on Del Mar Opening Day - 277 drivers stoped but only 12 DUI arrests. Geez. Overzealous Mess!

If you or a friend are facing overzealous DUI charges, contact a quality San Diego DUI criminal defense lawyer who can provide a free consultaton online today.

On July 22, 2009, the San Diego County Sheriff’s Department and the San Diego County Regional Avoid the 14 Task Force conducted a DUI enforcement disaster in the cities of Del Mar, Solana Beach and Encinitas to coincide with the opening day of the Del Mar.

San Diego DUI officers from the San Diego Police Department, La Mesa Police Department, Oceanside Police Department, Coronado Police Department, Escondido Police Department, Chula Vista Police Department, National City Police Department and San Diego County Probation Department all competed in overzealousness.

The San Diego DUI results of the operation are as follows:

Traffic stops: 277 (based on hunch or mere suspicion of San Diego DUI?)

San Diego DUI Field sobriety tests administered: 83
(This means over 2/3rds of folks' freedoms were intruded upon.)

San Diego DUI arrests: 12 (of which two included charges of child endangerment)
(This means less 5% of the hunches led to DUI arrests. Wow.)

This San Diego DUI operation was made possible as a result of a grant by the California Office of Traffic Safety. San Diego DUI strike team operations will be conducted in the near future with the goal of getting drunk drivers in jail to make money off them. San Diego DUI criminal defense attorneys can't believe this.

What is the SR-22 San Diego DUI arrestees ask about?

An SR-22 isn't a type of insurance coverage, but rather proof that you have insurance. It is notification from your insurance company to the DMV that you have auto liability insurance in effect in the State of California which satisfies the minimum insurance coverage required by the State.

This insurance notification is typically required by the State for 3 years from the date the original suspension would have ended which can be determined, e.g., by adding 4 months from the date you were given the "pink" temporary license (assuming you are a first offender without a refusal of the chemical test).

If your policy lapses for any reason (miss a payment, get cancelled) the insurance carrier is REQUIRED to notify the DMV who is supposed to then notify you that you will have to file another SR-22 with them by a certain date or your license will be suspended. This form, typically filed electronically, is the only form the The Department of Motor Vehicles will accept. They will not accept any other form as a substitute for the SR-22.


When is the SR 22 required?
This will be required by you if:

(1) you were arrested for a DUI and;
(2) you have your license suspended or restricted and/or;
(3) if you are required to take a DUI program and;
(4) you want to get a restricted license.

To get a restricted license, you have to do 3 things:
(Not immediately - only if you lose your DMV hearing or get convicted in Court)

(1) Pay DMV re-issue fee(s).
(2) Provide DMV proof of financial responsibility (SR-22).
(3) Provide DMV proof of enrollment in approved DUI program.


Insurance minimums in California:
For private passenger vehicles per accident: $15,000 for injury/death to one person.
$30,000 for injury/death to more than one person.
$5,000 for damage to property.


Moving to Another State:
If you currently have an SR-22 and want to move to another state you must maintain the SR-22 like you still live in California - even though you no longer reside here. Also, your insurance policy for the new state must have liability minimums required by law in California. This applies even if you move to one of the states that does not have SR-22 insurance: Delaware, Kentucky, Minnesota, New Mexico, Oklahoma and Pennsylvania.


Already convicted and need a license?
First, make sure you are eligible for at least a restricted license by calling the California DMV at 1 (800) 777-0133. Then follow the steps above.


Other related information:
If you insurance company cancels your insurance because of your conviction, you will receive a notice indicating that your vehicle registration will be suspended if new insurance information is not submitted within 45 days.


Already agreed to enter a guilty plea or didn't request a DMV hearing?
If you think you are going to be convicted, make sure you contact an insurance broker BEFORE the conviction appears on your record. A skilled insurance broker can often times save you from being cancelled or having your insurances rates double (typical through State Farm for example) once a DUI conviction appears on your record.

Additionally, you should know that although your SR 22 can be filed electronically you should be able to get an original from your insurance company and hand deliver it to the DMV so that you don't have to wait for the clerks in Sacramento to do their job - which they do slowly.

I recommend calling John MacDonald at 1 800 346 7370 for all of your insurance needs. John MacDonald Insurance


Or, Generally, How to Downshift Your Insurance Costs with Smarter, Cheaper Coverage

1) Nab Discounts

Most insurers offer price cuts for such things as:
- having anti-lock brakes;
- having been accident-free;
- having taken a defensive-driving course;
- using the same insurer for your home policy.

(For more info., visit the auto insurance checklist at http://iii.org/individuals/auto .)

These can take up to 25% off your premium. But your insurer usually will not come to you with them so you have to call the company and find out what the discounts are.

2) Raise your deductible.

The point of vehicle insurance is to protect you from catastrophic costs (your emergency fund should cover stuff like dents and broken windows). Raise your deductible from say $200 to $1,000 and you could save more than 40% on premiums, according to the Insurance Information Institute.

3) Prune coverage on old vehicles.

Once your vehicle is worth less than 10 times what you pay each year to insure it, get rid of the comprehensive and collision. Find your vehicle's estimated worth at www.kbb.com.

4) Dig up competing quotes.

This is the most work but could have the greatest payoff. Go to www.naic.org to find your state insurance commission website, where you can download a vehicle insurance buying guide.

Pick the example closest to you and the 5 insurers with the lowest rates. Call them for quotes. If the state guide doesn't list insurers, get the 5 best quotes at www.insweb.com but note that the site doesn't include State Farm.

Next, check with an independent agent (get a name at www.iiaba.net) to see if any insurers you haven't checked can beat your top 5.

5) Sidestep hassle by making sure any insurer with a better quote is legitimate.

Go to your state's insurance commission site - look especially for the ratio of complaints to # of policies written.

San Diego DUI Defense Attorney Rick Mueller will speak about DUI enforcement and drunk driving checkpoints at the annual DUI seminar next Saturday, August 1, 2009 at Loyola Law School in Los Angeles, California. Right now, the San Diego DUI Strike Team will work hard to Keep the Roadways Safe During the Opening Day of the Del Mar Thoroughbred Horse Racing Festivitiesm as the San Diego Sheriff’s Department and the Avoid DUI Task Force Partners will be deploying on Wednesday evening, July 22nd, 2009, from 3:00 p.m. to midnight for the opening day of the Thoroughbred horse racing festivities at the Del Mar Race Track.

The San Diego Avoid DUI Task Force is asking for the public’s assistance during this special event by Reporting Drunk Drivers – Call 9-1-1. Funding for this program was provided by a grant from the California Office of Traffic Safety, through the National Highway Traffic Safety Administration.

Media are highly encouraged to attend the San Diego County Avoid DUI Campaign - DUI Strike Team Working Opening Day of the Del Mar Thoroughbred Horse Racing Festivities
command post and requested to assist us in educating the public about the dangers of making the worst possible decision, namely to drive after drinking or without a valid driver license. The Command Post will be located at 625 South Nardo Ave. in Solana Beach.

If you need help, go to the free online DUI Defense Evaluation for San Diego drunk driving arrests.

San Diego DUI accidents will never be eliminated; smarter folks who find a way around any California DUI roadblock.

The best that can be done to reduce the number of DUI crashes is to raise awareness of the dangers of San Diego DUI ; increase the San Diego DUI penalties for drunk driving; and pass drunk driving laws making it harder for people to drink and drive in San Diego Caliifornia.

There will always be a good San Diego DUI criminal defense attorney to the rescue.

San Diego DUI criminal defense attorneys spend a great deal of time and energy preparing for a jury trial. It can be frustrating when your San Diego DUI criminal defense lawyer answers "ready" for trial, only to be told by a Judge that the case will be continued because the DUI attorney prosecutor is not ready.

When a subpoenaed witness does not appear, or is on vacation, what are the San Diego Drunk Driving Criminal Defense Attorney's options? And what is the new case law as it applies to San Diego drunk driving cases?

Jensen v. Superior Court (2008) 160 CA4th 266

"[Though] the vacation of a police officer is not, by itself, good
cause for continuing a case beyond the statutory time period [citing
Cunningham v. Municipal Court (1976) 62 CA3d 153, 155-156, and
Baustert v. Superior Court (2005) 129 CA4th 1269, 12771," due
diligence is shown for a trial continuance where a prosecutor has
timely caused a subpoena to be served on the officer's department
even if the supervising officer fails to deliver the subpoena as
required by PC §1328(c).

When you're ready to consult a San Diego DUI criminal defense attorney, spend a few moments online.

Why it is not a good idea for you to appear with your San Diego DUI criminal defense attorney in San Diego drunk driving Court

If your San Diego DUI is a misdemeanor you need not appear until & unless the case is set for jury trial; your San Diego DUI attorney can make all appearances (until/unless trial).

San Diego Superior courts treat San Diego DUI misdemeanor cases very seriously - e.g. one cannot represent oneself. People who are not allowed to represent themselves should not be speaking to the Judge or the Prosecutor, neither of whom are on your side nor looking out for your rights. Sometimes Judges overstep or ask people pointed questions and unfortunately wrong answers are mistakenly provided; that cannot be good for anyone, particularly in a San Diego DUI case. While I am sure many folks can handle themselves, as a San Diego DUI criminal defense lawyer, I do not want to take any chances since I have the best interests of my San Diego DUI clients in mind.

These are some reasons why you hired a Mouthpiece. Your San Diego DUI defense attorney is that hired Gun.

Besides, the San Diego DUI Judge usually does not want to hear from the client. The Judge does not want to have to explain (or reexplain) something to a San Diego DUI defendant. The Judge would rather have the San Diego DUI attorney do that; it keeps the calendar flowing and does not make the judge run late or get mad. We do not want an angry judge or a Judge who is mad at you or I. Besides, I do not want you saying anything to the Judge or the Prosecutor. Any inadvertent comments or accidental interference could adversely affect the outcome in your San Diego DUI case. This is why your San Diego DUI Attorney Retainer Agreement may state: "Client need not appear."

Your San Diego DUI lawyer intends to appear on your behalf at your scheduled arraignment, enter a not guilty plea, and continue the San Diego DUI case for about a number of weeks at which time you do not have to appear.

Not much happens at that San Diego DUI arraignment date except get a new date thereby allowing your San Diego DUI defense lawyer to request discovery and conduct investigation in your San Diego DUI criminal case. After that, your San Diego DUI criminal attorney will conclude the investigation in the criminal matter and meet with the San Diego DUI prosecutor's office.

Your San Diego DUI attorney will keep you posted of any developments.

Under Penal Code Section 977, as your San Diego DUI attorney, he can and will make all appearances for you. YOU NEVER HAVE TO APPEAR (unless/until set for San Diego DUI jury trial).

While you are waiting for your San Diego DUI criminal defense attorney to work for you at an upcoming date, or to convey updates on your San Diego DUI case, there may not be a lot for you to do. That may be a bit frustrating. Simply please wait for news from your San Diego DUI defense attorney. Your San Diego DUI criminal lawyer will likely mail you what is received and obtained.

Your San Diego DUI criminal defense attorney is the plane that you decided to board. If you don't trust him to fly it, you should not have gotten on. If you trust your San Diego DUI lawyer and his over 25 years of experience, then stay on board. But, just because you buy a ticket to ride, it doesn't entitle you to a course on how to build the thing and how to fly it. So please relax and just enjoy the flight. Or allow your San Diego DUI attorney to make the flight not so unenjoyable for you. Your San Diego DUI lawyer will do his best to keep any bumps or delays to a minimum.

Please be assured that your San Diego DUI attorney is working vigorously and diligently on your San Diego DUI case. Your patience, understanding and consideration are appreciated. Please do not worry. Your San Diego DUI lawyer will take care of everything until notified.

San Diego DUI Attorneys can really blog. Specialist Rick Mueller is a Top-Rated San Diego County Drunk Driving, DUI & DMV Defense attorney with over 25 years of experience. He vigorously and dedicates all of his law practice to aggressively defending those accused of driving under the influence of alcohol. See how has successfully saved the driving privileges of many clients.

San Diego California Criminal Defense Attorney Rick Mueller lectures in two weeks at the Mexican American Bar Association annual DUI seminar in Los Angeles at Loyola Law School. He recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California.

Help is readily available via a free, online, and important Free San Diego DUI & Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.

Or check out this San Diego DUI criminal defense attorney speak about DMV:

Video of San Diego DUI / DMV Attorney

Partition ratio evidence can be admitted, contend San Diego DUI Attorneys.

California Supreme Court Justice Corrigan wrote:

"2100-to-1 (partition) ratio overstates the actual amount of alcohol in his blood. For someone with an extremely low ratio of 1100 to 1, for example, use of the 2100-to-1 partition ratio would overstate blood-alcohol content by almost 50 percent."

All San Diego California DUI breath test machines multiply the result they get by 2100. But the lowest Partition Ratio is 1300:1 according to the McNeal case.

Assuming at the time of the test, so long as the usual body tempurature is normal:

a .06 can be as low as a .037
a .07 - .043
a .08 - .049
a .09 - .055
a .10 - .061
a .11 - .068
a .12 - .074
a .13 - .080
a .14 - .086
a .15 - .092
a .16 - .099

Oddly, under the new McNeal case, a San Diego California DUI criminal defense attorney can use scientific facts that the BAC reading is faulty to defend your client against the BAC-based presumption of being under the influence but not against the charge that your client was BAC was .08% or more.

Yet for years, before McNeal, California DUI Trial Judges precluded numerous Drunk Driving criminal defense attorneys from introducing evidence that a person's partition ratio may be different than the number the statute relies on for purposes of converting breath to blood. How unfair was that?

The United States Supreme Court, for 50 years, has clearly articulated the
principle that in our justice system, a defendant has the fundamental
right to present a defense and to present witnesses. In In re Oliver,
Justice Black declared that a defendant’s “right to his day in court” is
“basic in our system of jurisprudence” and includes “as a minimum, a right
to examine the witnesses against him, to offer testimony, and to be
represented by counsel.” In re Oliver, 333 U.S. 257, 273 (1948) (emphasis
added). Since then, the Supreme Court has again and again noted the
“fundamental” or “essential” character of a defendant’s right both to
present a defense, Crane v. Kentucky, 476 U.S. 683, 687, 690 (1986);
California v. Trombetta, 467 U.S. 479, 485 (1984); Webb v. Texas, 409 U.S.
95, 98 (1972); Washington v. Texas, 388 U.S. 14, 19 (1967), and to present
witnesses as a part of that defense. Taylor v. Illinois, 484 U.S. 400,
408 (1988); Rock v. Arkansas, 483 U.S. 44, 55 (1987); Chambers v.
Mississippi, 410 U.S. 284, 294, 302 (1973); Webb, 409 U.S. at 98;
Washington, 388 at 19. The Court has repeatedly stated that a defendant’s
right to a defense and right to present witnesses and evidence emanates
from the Sixth Amendment and the Due Process Clause of the Fourteenth
Amendment. Crane, 476 U.S. at 294; Strickland v. Washington, 466 U.S.
668, 684-85 (1984); Washington, 388 U.S. at 17-18.

The Sixth Amendment source of these rights is the Compulsory Process
Clause, which embraces “the right to have the witness’ testimony heard by
the trier of fact.” Taylor, 484 U.S. at 409. Washington formally
incorporated the Compulsory Process Clause into the Due Process Clause of
the Fourteenth Amendment. 388 U.S. at 17-19. That case stated:
The right to offer the testimony of witnesses, and to compel their
attendance, if necessary, is in plain terms the right to present a
defense, the right to present the defendant’s version of the facts as well
as the prosecution’s to the jury so it may decide where the truth lies.
Just as an accused has the right to confront the prosecution’s witnesses
for the purpose of challenging their testimony, he has the right to
present his own witnesses to establish a defense. This right is a
fundamental element of due process of law. Id. at 19.

The defense in this case is seeking to bring forward evidence related to
the section 23152(a) charge levied against him. Specifically, the defense
seeks to introduce evidence concerning the variability of partition
ratios. The State will likely argue that evidence on partition ratio
variability is inadmissible under People v. Bransford, 8 Cal. 4th 885
(1994).

In Bransford, the court held that a defendant is not entitled to raise
partition ratios to defend against section 23152(b), wherein he or she is
charged with having .08 percent or greater blood alcohol concentration.
Bransford reasoned that, as amended, the statute defined the offense in
terms of specific grams of alcohol per liter of breath, thereby rendering
partition ratios comparing volume of blood to volume of breath irrelevant
and therefore inadmissible. Id., at 893. Yet Bransford was silent on the
relevance of partition ratio evidence to charges brought under section
23152(a).

People v. Acevedo, 113 Cal.Rptr.2d 437 (2001), interpreted Bransford to be
self-limiting. Acevedo applied Bransford exclusively to section 23152(b),
and to breath-alcohol, rather than blood-alcohol or urine-alcohol, test
result challenges. Id. at 441-43. Accordingly, the Acevedo court found
that People v. Lepine, 263 Cal.Rptr. 543 (1989), rather than Bransford,
applies when urine-alcohol test results are at issue. Following the
Acevedo court’s reasoning, Lepine also controls when section 23152(a),
rather than section 23152(b) charges are at issue. Under Lepine, a jury
is allowed to consider that partition ratios may vary from time to time
and from individual to individual.

State v. Hanks, 772 A.2d 1087 (1998), the only court to squarely address
Bransford’s application to partition ratios outside of section 23152(b)
breath-alcohol test result challenges, also construes Bransford narrowly.
At issue in Hanks is a Vermont statute that, like section 23152,
distinguishes between so-called “generic” DUI violations that make it
unlawful to drive while under the influence of intoxicating liquor, and
“per se” DUI violations that make it unlawful to drive with a
blood-alcohol concentration above a specified level. The Hanks court
ruled that a defendant can introduce partition ratio evidence to defend
against a “generic” statutory DUI charge. According to Hanks, Bransford
only controls when “per se” statutory DUI charges are at issue. Hanks
stated:

Because defendant is charged with driving while under the influence rather
than driving with an alcohol concentration exceeding the statutory limit,
admitting scientifically accepted evidence concerning the variability of
partition ratios will not negate a statutory offense or even an element of
a statutory offense; rather, it will merely allow defendant to challenge
the permissive inference and the State’s charge that he was impaired.
Id. at 1092-93. We agree.

“The Sixth Amendment guarantees the right of an accused in a criminal
prosecution to be confronted with the witnesses against him.” Alvarado
v. Superior Court, 23 Cal.4th 1121, 1137 (2000). The right of
confrontation, “means more than being allowed to confront the witness
physically.” Id. Indeed, “[t]he main and essential purpose of
confrontation is to secure for the opponent the opportunity of
cross-examination.” Id. The presumption of a person with a
blood-alcohol content of .08 or greater being under the influence of
intoxicating liquor is one affecting the burden of proof and requires the
defendant to raise a reasonable doubt as to the existence of the presumed
fact. Evidence of partition ratio variability has long been used in this
state to rebut this presumption in the section 23152(a) context. See
People v. Campos, 188 Cal.Rptr. 366 (1982). It is clear, under both
Acevedo and Hanks, that Bransford does not render this evidence
inadmissible to defend against section 23152(a) prosecutions.

If you are in need a San Diego California DUI attorney, consider a free online consultation today.

San Diego DUI and California drunk driving numbers have dropped dramatically during the past thirty years during which time we have seen tougher California DUI laws, stiffer enforcement and a shift in societal views on alcohol, a government survey found yesterday.

This survey released by the NHTSA found that 2.2% of drivers had BAC levels of .08% or more two years ago. The results represented a decline compared with studies conducted since 1973, when 7.5 % of the drivers surveyed were legally impaired.

An independent survey found for the first time that 16.3 % of nighttime weekend drivers tested positive for drugs. The most commonly detected drugs were marijuana (8.3 %), cocaine (3.9 %) and methamphetamine (1.3 %). DUI researchers said the presence of drugs may purportedly remain in a driver's system for weeks, making it difficult to know whether those drivers were impaired.

The survey examined weekend nighttime drivers, collecting breath samples to measure blood alcohol concentration. For the first time, it also collected oral fluid and blood samples to determine a driver's use of potentially impairing drugs.

Government researchers last conducted the study in 1996, when 4.3 % of drivers surveyed were legally intoxicated. Previously, in 1986, 5.4 % of the respondents were legally drunk.

There's been more stringent efforts by DUI law enforcement to reduce DUI & drunk driving and the use of ignition interlock devices for dui offenders. All 50 states and the District of Columbia have adopted a blood alcohol concentration of .08% as the legal limit for drivers.

The study found a higher risk of encountering drunken drivers in the early morning hours — 4.8% of drivers had an illegal blood alcohol level from the hours of 1 a.m. to 3 a.m. on Saturday. It found that 1.2 percent of drivers were legally drunk during the hours of 10 p.m. to midnight on Friday night, 1.2 percent of those surveyed were legally drunk while 2% were drunk during the daytime.

If you or a friend need San Diego DUI attorney assistance, check out the free online Survey.

San Diego DUI defense lawyers who want to attack the California DMV's license suspension action after a drunk driving arrest may consider the following argument.
On August 1, 2009, San Diego DUI defense lawyerRick Mueller will lecture about these DUI-related issues - and others - at the Loyola Law School annual DUI seminar.

Issues Presented for San Diego's DMV office after a San Diego DUI arrest:

Is this Cut & Paste of the PROBABLE CAUSE (PC) onto PAGE 2 of the DS 367 OFFICER’S STATEMENT permissible under MacDonald v. Guiterrez?

Can the arresting officer circumvent Vehicle Code section 13380 by copying, pasting and incorporating a portion of an unprepared arrest report which:
a) was not in existence at the time of execution and service of the DS 367,
and b) impossibly refers to events that happened after the report was completed?

Can an unsworn report – prepared AFTER the DS 367 – legally provide the relevant information otherwise required to be sworn under VC 13380?

Do the material and necessary PC facts – omitted at the time of preparation and service of the DS 367 – make the PC portion of the DS 367 blank and “devoid” of any information relevant to the enforcement action” in violation of MacDonald v. Guiterrez?

Is the Department barred from considering an unsworn report when the DS 367 (absent a proper PC statement) fails to comply with 13380 & Evidence Code 664?

If barred from considering an unsworn report, is the Department further barred from relying on an unsworn report to supplement or explain a DS 367 essentially devoid of the relevant PC information (at time of execution of the DS 367)?

Without admissible, sufficient & competent evidence, must the DMV's administrative action be set aside?

For answers to these San Diego DUI defense attorney questions, visit California DUI attorney blog.

On August 1, 2009, San Diego DUI defense lawyerRick Mueller will lecture about these DUI-related issues - and others - at the Loyola Law School annual DUI seminar.

San Diego DUI criminal defense lawyers who study science and logic know the way San Diego drunk driving prosecutors presented cases was unfair in breath test cases. Now, the California Supreme Court wisely agreed with Arizona and Vermont that San Diego and California DUI breath test results can mean different things depending on the individual.

San Diego DUI criminal defense attorneys longed for this unanimous ruling deferring to science. Everyone knew breath test results are highly variable and often unreliable. San Diego DUI attorney prosecutors must deal with the reality that there are a number of inaccuracies with breath testing.

The question in the Timmie McNeal case was how much alcohol is in the bloodstream.

Alcohol is absorbed in the blood and carried through the brain to the liver and heart before diffusing in the lungs where it is exhaled in breath. "Henry's law" is used to convert the amount of alcohol vapor in the lungs to a blood-alcohol level.

Homeostatic variables

Breathalyzers assume that the subject being tested has a 2100-to-1 "partition ratio" in converting alcohol measured in the breath to estimates of alcohol in the blood. If the instrument estimates the BAC, then it measures weight of alcohol to volume of breath, so it will effectively measure grams of alcohol per 2100 ml of breath given. This measure is in direct proportion to the amount of grams of alcohol to every 100 ml of blood. Therefore, there is a 2100 to 1 ratio of alcohol in blood to alcohol in breath. However, this assumed "partition ratio" varies from 1300:1 to 3100:1 or wider among individuals and within a given individual over time. Assuming a true (and legal) blood-alcohol concentration of .07%, for example, a person with a partition ratio of 1500:1 would have a breath test reading of .10%—over the legal limit.

Most individuals do, in fact, have a 2100-to-1 partition ratio in accordance with William Henry's Law (1803), which states that when the water solution of a volatile compound is brought into equilibrium with air, there is a fixed ratio between the concentration of the compound in air and its concentration in water. This ratio is constant at a given temperature. The human body is 37 degrees Celsius on average. Breath leaves the mouth at a temperature of 34 degrees Celsius. Alcohol in the body obeys Henry's Law as it is a volatile compound and diffuses in body water. To ensure that variables such as fever and hypothermia could not be pointed out to influence the results in a way that was harmful to the accused, the instrument is calibrated at a ratio of 2100:1, underestimating by 9 percent. In order for a person running a fever to significantly overestimate, he would have to have a fever that would likely see the subject be in the hospital rather than driving in the first place. Studies suggest that about 1.8% of the population have a partition ratio below 2100. Thus, a machine using a 2100-to-1 ratio could actually under-report. As much as 14% of the population has a partition ratio above 2100, thus causing the machine to overestimate the BAC.

Further, the assumption that the test subject's partition ratio will be average—that there will be 2100 parts in the blood for every part in the breath—means that accurate analysis of a given individual's blood alcohol by measuring breath alcohol is difficult, as the ratio varies considerably.

Variance in how much one breathes out can also give false readings, usually low. This is due to biological variance in breath alcohol concentration as a function of the volume of air in the lungs, an example of a factor which interferes with the liquid-gas equilibrium assumed by the devices. The presence of volatile components is another example of this; mixtures of volatile compounds can be more volatile than their components, which can create artificially high levels of ethanol (or other) vapors relative to the normal biological blood/breath alcohol equilibrium.

A major scientific problem is that breath-to-blood ratios vary greatly throughout the population and fluctuate individually, influenced by such factors as body temperature, atmospheric pressure, medical conditions and the precision of the measuring device. That means the same breath-test result for one person's breath could signal intoxication while for another it could simply mean just 2 beers.

California has 2 distinct DUI - driving under the influence laws. The first law, impairment, requires proof that a driver and his driving was impaired. California DUI jurors are told they can presume someone is drunk if blood tests show at least a .08 percent level of alcohol.

The second law, passed by the Legislature in 1981 and updated in 1989, defined a drunk driver as someone with a BAC level of .08% or more regardless of impairment, appearance or behavior. Fiteen years ago, the California Supreme Court limited that definition to include Breathalyzer results, barring drivers charged with the second law from attacking the variability of the breath tests.

San Diego DUI defense attorneys had judges tell them they could not introduce variations in partition ratios, limiting true challenges to San Diego drunk driving breath test machines.

San Diego & California DUI Prosecutors unfairly charge folks with both versions of the law to increase the likelihood of a drunk driving conviction.

San Diego DUI Criminal Defense attorneys and drunk driving prosecutors agreed the state Supreme Court ruling on Thursday reopened the door to breath-test challenges. The court said evidence of the variability of tests can be shown to juries.

"Defense evidence is relevant to rebut the presumption that the defendant was intoxicated, but not to remove the presumption altogether," Justice Carol Corrigan wrote for the Supreme Court.

Prosecutors whined the California ruling will affect their ability to win convictions in DUI cases. "It will confuse jurors," said Margaret O'Malley, a Santa Barbara County prosecutor who represented the California District Attorneys Association before the high court. But San Diego DUI Defense attorneys disagree because jurors won't be confused when the truth comes out. The California Supreme Court now confirms in court what science already knew: one-size-fits-all breath tests don't necessarily reflect reality for all DUI suspects.

DUI defense lawyers remind that folks with one lung will naturally have more alcohol vapors in their breath than someone with two lungs. Drunk Driving defense attorneys should not be improperly barred from challenging the breath test. If you think you need help, answer the online survey.

Everytime you hear about the prohibition, you get MADD. These folks are up to their old tricks. San Diego DUI criminal defense attorneys are amazed at what lengths they will go to try and raise money for drunk driving enforcement.

If you need a defense today in a San Diego Drunk Driving or DMV case, consider the online survey at the San Diego County DUI Law Center; criminal defense attorney Rick Mueller will respond.

Here's their latest email:

"Dear MADD Supporter,

Can you picture a nation without drunk driving? Your assistance is urgently needed to help realize this vision by ensuring that many of the provisions of MADD’s Campaign to Eliminate Drunk Driving become federal law. Legislation has been introduced in the U.S. House of Representatives which seeks to require states to undertake a number of reforms to combat drunk driving consistent with the Campaign. The bill, known as the Surface Transportation Authorization Act of 2009, would improve highway safety by implementing the Campaign nationally.

In the 1980s, MADD fought successfully to establish 21 as the minimum legal drinking age. In the 1990s, MADD prevailed again in its fight to set .08 as the per se BAC limit. Now, in 2009, we MUST put the U.S. on the path towards eliminating drunk driving. To do this, we need your help and your voice. You must act immediately!

Are you up to the challenge? Then click here to email or call your Member of Congress and say that you support the impaired driving safety provisions in the Surface Transportation Authorization Act of 2009. With your help, we CAN eliminate drunk driving."

San Diegan Matt Bush's San Diego DUI criminal defense lawyer pled not guilty to drunk driving, resisting arrest and vandalism in connection with the parked car accident.

A San Diego DUI criminal defense attorney entered pleas for Bush on Wednesday in a San Diego County courtroom. San Diego Drunk Driving Criminal Defense Lawyer Gregory Daniels said the pitcher is in a rehabilitation location.

The San Diego Padres drafted Bush with the first pick 5 years ago but traded him to Toronto.

In other holiday news, North San Diego DUI law enforcement agencies paid for extra DUI patrols for the 4th of July weekend. 21 people were arrested for San Diego DUI on North San Diego County over the 4 of July weekend, 3 drunk driving arrests more than last year.

Although more DUI arrests were made this year by CHP in the North San Diego County, there were no traffic fatalities on CHP-monitored roadways during the holiday weekend throughout the San Diego-area.

CHP made 88 San Diego County DUI arrests, 66 fewer than last year.

The San Diego Sheriff’s Department arrested 13 people suspected of a San Diego or drunk driving. DUI Deputies in Encinitas, San Marcos and Vista each recorded 4 DUI arrests over the holiday weekend, while Carlsbad Police Department made 1 DUI arrest over the 4th of July weekend.

If you or someone you care about need a San Diego DUI defense lawyer, fill out the free online survey today.

Silverio Romero lost a leg in an April San Diego area DUI accident. He now faces 15 years to life in prison if convicted. Romero was arrested after he tried to evade police and caused a drunk driving accident on State Route 76 that killed Moreno Valley musician Douglas Tarry, 27, and injured James and Jennifer Riley.

Vista California Superior Court Judge Aaron Katz said enough evidence was presented for Romero to stand trial on charges of murder, gross vehicular manslaughter while intoxicated, felony evading causing great bodily injury, felony DUI with injury and driving without a valid license.

After a traffic stop, Romero suddenly sped off, fleeing at speeds exceeding 100 mph and veering between all the lanes and the right-hand shoulder.

7 miles to the south, Romero merged onto SR-76 in the Pala Mesa Village area and headed west, running a red light at Old Highway 395.

The Explorer crossed over a set of double yellow lines and into an eastbound lane, where it collided head-on with a 1999 Toyota Tacoma truck driven by 27-year old Douglas Tarry of Moreno Valley.

The suspect continued driving the wrong way for a short time before his SUV collided with an oncoming 2004 Ford F-350 truck carrying the Rileys. The Explorer then overturned and tumbled down an embankment.

If you or your attorney need a DUI attorney, call 1 800 THE LAW DUI.

San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a Top-Rated San Diego DUI Lawyer will help you.

CHP in San Diego County over the Fourth of July holiday weekend arrest 77 people for DUI. Drunk Driving officers for the California Highway Patrol arrested 1,033 suspected DUI / drunk drivers. Last year, they arrested 971 DUI arrests.

San Diego DUI Lawyer & San Diego Attorney Drunk Driving can help you beat the San Diego drunk driving charge. San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows how a San Diego DUI Lawyer will help you.

Santee Sheriff’s Traffic Division conducted a San Diego DUI checkpoint with a total of 912 vehicles passed through the checkpoint; 76 were inspected. San Diego DUI Field sobiety testing was conducted on 5 drivers, and 1 person was arrested for a San Diego California DUI. That person may have a defense to the checkpoint.

In Imperial County, 11 DUI arrests on all roadways, in both the El Centro and Winterhaven Sectors.

Don't forget a free SAN DIEGO DUI & DMV DEFENSE "EVALUATION FORM"

If you are in need a top San Diego DUI criminal defense lawyer, provide some easy input information at the online San Diego County DUI Law Center evaluation.

CHP reports no traffic fatalities were reported in San Diego County during the first 12 hours of the July 4th holiday weekend, while 36 motorists were arrested on suspicion of a San Diego DUI. CHP officers arrested 454 suspected California drunk drivers across the state, compared to 342 California DUI arrests over the same period last year.

An experienced San Diego DUI criminal defense attorney will provide the most thorough investigation and professional handling of your case from start to finish. With a goal to protect your legal rights and reduce penalties to the minimum, you San Diego DUI criminal defense lawyer will keep you advised every step of the way.



In order to properly defend your San Diego DUI case and give you the best chance to get back to your life, it is important to seek San Diego DUI legal representation immediately.



Retaining top San Diego drunk driving legal representation will ensure any necessary bail posting as soon as possible to reduce initial San Diego jail time.



Here's penalties for California DUI:


Criminal (Misdemeanor) Sentences for
Driving Under the Influence of alcohol
and/or drugs (Vehicle Code Section 23152)


OFFENSE MINIMUM AND MAXIMUM SENTENCES WHEN PROBATION IS GRANTED MINIMUM AND MAXIMUM SENTENCES WITHOUT PROBATION WITH OR WITHOUT PROBATION
FIRST OFFENSE
within 10 years Attendance at an alcohol/drug program, a fine of $390 to $1,000, plus substantial, mandatory penalty assessments (totalling up to an additional 280% apx.), plus either (A) 48 hours to 6 months jail and 10 months license suspension; or (B) a license restriction to and from work, during work and to and from DUI program following any DMV suspension (if no refusal). 96 hours to 6 months in jail, $390 to $1,000 fine, and a 10-month license suspension. May impound vehicle for 6 months.

Up to 3 years ignition interlock device (IID), and Additional Jail if Child Passenger, if 30 mph over speed limit on freeway or if 20 mph over speed limit on other roads, if Refusal of chemical test, or if .15% BAC or more.
SECOND OFFENSE
within 10 years Attendance at 18-30 month alcohol/drug program, a fine of $390 to $1,000 plus substantial, mandatory penalty assessments, 96 hours to 1 year in jail, installation of ignition interlock (IID) device for up to 3 years, and 2 year license suspension, with a possible license restriction to and from work, during work and to and from DUI program after 1 year of suspension and completion of DUI program. However, your license shall be suspended if the offense occurred in a vehicle which requires a class 1, 2, A or B license. 90 days to 1 year in jail, $390 to $1,000 fine plus substantial, mandatory penalty assessments, IID up to 3 years, and 2 year license suspension.
THIRD OFFENSE
within 10 years 120 days to 1 year in jail, $390 to $1,000 fine plus substantial, mandatory penalty assessments, a 3-year license revocation, and an 18-month alcohol/drug program if you have not completed one before. 120 days to 1 year in jail, $390 to $1,000 fine, and a 3-year license revocation.
FOURTH OR SUBSEQUENT OFFENSE
within 10 years 120 days to 1 year in jail, $390 to $1,000 fine plus substantial, mandatory penalty assessments, a 4-year license revocation, and an 18-month alcohol/drug program if you have not completed one before. 16 months, or 2 or 3 years in state prison, or 180 days to 1 year in county jail; $390 to $1,000 fine, and a 4-year license revocation.

DMV Penalties for Driving Under the Influence of alcohol and/or drugs
OFFENSE BAC/REFUSAL SENTENCE
FIRST OFFENSE .08 or greater 4-month suspension
" " Refusal 1 year suspension
SECOND OFFENSE
within 10 years .08 or greater 1 year suspension
" " Refusal 2 year revocation
THIRD OFFENSE
within 10 years .08 or greater 3 year revocation
" " Refusal 3 year revocation
FOURTH OFFENSE
within 10 years .08 or greater 4 year revocation
" " Refusal 4 year revocation

DMV Suspension if .01% while on Probation

DMV shall immediately suspend the privilege of a person to operate a motor vehicle: ...if the person was on probation for Vehicle Code Section 23152 or 23153, and the person blows .01% or more, as measured by a preliminary alcohol screening test or other chemical test.

Driving on a Suspended License Mandatory Jail Penalty

If you drive when your privilege is suspended or revoked for driving under the influence of
alcohol, upon a first conviction, you face imprisonment in the county jail for not less than
10 days or more than six months and by a fine of not less than $300 nor more than $1,000.
[California Vehicle Code section 14601.2(a)]

What if a San Diego DUI officer stops you and you have a valid out-of-state license?

What if your San Diego DUI lawyer is not present when the cop misinforms the driver that his or her (valid state license) would be suspended or revoked if the driver fails to submit to a California chemical test?

If you are in need of an aggressive San Diego California DUI criminal defense attorney, spend a few moments completing a free online consultation form today.

What does one state say about suppressing those test results after a top national drunk driving attorney raised some of these same questions?

Court of Appeals of Georgia

KITCHENS
v.
The STATE.
No. A02A1494.
Nov. 18, 2002.
Defendant was convicted in the Superior Court,
Douglas County, Emerson, J., of driving under the
influence of alcohol to the extent that she was a less
safe driver, failure to maintain lane, and driving
with an expired license. Defendant appealed. The
Court of Appeals, Pope, Senior Appellate Judge,
held that: (1) defendant's alcohol breath test results
were subject to suppression, and (2) evidence was
sufficient to support defendant's conviction for
driving under the influence of alcohol to the extent
that she was a less safe driver.
Affirmed in part and reversed in part.
West Headnotes
[1] Automobiles 48A 421
48A Automobiles
48AIX Evidence of Sobriety Tests
48Ak421 k. Advice or Warnings; Presence of
Counsel. Most Cited Cases
Defendant's alcohol breath test results were subject
to suppression in prosecution for driving under the
influence of alcohol to the extent that defendant
was a less safe driver; police officer incorrectly explained
the implied consent warnings to defendant
by overstating the legal limit of alcohol concentration
and incorrectly stating the consequences if defendant
refused to take the alcohol breath test, and
the misinformation may have affected defendant's
decision to consent to the alcohol breath test.
[2] Automobiles 48A 355(6)
48A Automobiles
48AVII Offenses
48AVII(B) Prosecution
48Ak355 Weight and Sufficiency of Evidence
48Ak355(6) k. Driving While Intoxicated.
Most Cited Cases
Evidence was sufficient to support defendant's conviction
for driving under the influence of alcohol to
the extent that she was a less safe driver; police officer
observed defendant's vehicle weaving repeatedly,
defendant smelled strongly of alcohol and
her eyes were bloodshot, defendant stumbled out of
her vehicle and could not maintain her balance
well, and defendant twice failed one of the field
sobriety tests.
**451 *416 Head, Thomas, Webb & Willis, William
C. Head, Atlanta, for appellant.
David McDade, Dist. Atty., Christopher R.
Johnson, Asst. Dist. Atty., for appellee.
*411 POPE, Senior Appellate Judge.
Defendant Mary Cloyd Kitchens was convicted
following a bench trial of driving under the influence
of alcohol to the extent that she **452 was a
less safe driver, failure to maintain lane, and driving
with an expired license. She appeals, arguing
that the trial court erred in admitting the results of
the state-administered breath test into evidence because
the implied consent warning read to her by
the arresting officer was misleading, inaccurate,
and coercive and that the evidence was insufficient
to support her conviction for “less safe” DUI.FN1
FN1. Kitchens does not challenge her convictions
for failure to maintain lane and
driving with an expired license.
As is relevant to this appeal, the transcript shows
the following: Officer Greg Holcomb of the Villa
Rica Police Department testified that on December
7, 2000, he received a call to be on the lookout for a
574 S.E.2d 451 Page 1
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

white Ford Explorer with Alabama license plates
traveling east on I-20. He spotted a vehicle matching
that description and, after verifying the license
plates and following the vehicle a “little way,” activated
his blue lights and flashing headlights. The
videocamera inside his patrol car was also activated.
Officer Holcomb testified that he decided to
activate his lights because the vehicle was
“weaving over the roadway, crossed the fog line,
also crossed the centerline,” and that he observed
the vehicle weave on numerous occasions. He continued
to follow the vehicle, which did not stop until
he pulled beside it and activated his siren.
Officer Holcomb requested license and insurance
information from the driver of the vehicle, defendant
Kitchens. Officer Holcomb testified that the
driver's license was issued by the State of Alabama
and had expired. The videotape shows that Officer
Holcomb remarked to Kitchens that her eyes were
bloodshot and that the odor of alcohol was
“extremely heavy, extremely heavy,” and that she
replied that she had just “taken some Listerine.”
Officer Holcomb *412 then requested that Kitchens
perform several field sobriety tests, based on
his observations of her driving, odor of alcohol, and
bloodshot eyes. Officer Holcomb testified and the
videotape of the stop shows that Kitchens stumbled
against the side of her vehicle as she was exiting
and that she could not correctly recite the alphabet.
Officer Holcomb also administered an Alco-Sensor
test, which registered positive for alcohol. Officer
Holcomb then placed Kitchens under arrest for
driving under the influence.
Officer Holcomb read Kitchens Georgia's Implied
Consent Warnings. While he was reading the warning,
Officer Holcomb informed Kitchens that if
“the results indicate an alcohol concentration of 10
grams or more,” her Georgia driver's license or
privilege to drive on Georgia highways may be suspended
for one year. After Officer Holcomb completed
the warning, he asked Kitchens if she would
submit to the state's test, and if she understood what
he had just stated to her. Kitchens responded, “I'm
not sure what you just said.” Officer Holcomb then
attempted to explain the notice and informed Kitchens
that her “license to drive in the State of
Georgia” would be suspended if she refused to take
the test, and “[i]f the results indicate ten or more,”
her license may be suspended. After this explanation,
Kitchens again told Officer Holcomb she was
not sure if she understood “exactly what you said,”
and subsequently indicated, “you have very much
confused me.” Officer Holcomb informed Kitchens
she had two choices, to take the test or not take the
test, in which case “you're automatically charged
with DUI and your license [is] going to be suspended.”
Kitchens then indicated that she would take
the test.
The results of the state's breath test indicated Kitchens'
blood alcohol level was 0.199. The trial
court denied Kitchens' motion to exclude the results
of the test and found her guilty of driving under
the influence to the extent that she was a less safe
driver.
[1] 1. Kitchens first argues that the trial court erred
by denying her motion to exclude the results of the
state-administered test because the implied consent
warning was misleading, inaccurate, and coercive.
As stated above, the videotape of the stop and arrest
shows that when Officer Holcomb read the implied
consent warning, he overstated the legal limit indicating
that it was 10 grams instead of 0.10 grams of
alcohol**453 concentration. The record further
shows that after Kitchens indicated she did not understand
the implied consent, Officer Holcomb
again incorrectly advised Kitchens that the legal
limit was 10 grams instead of 0.10 grams.
Moreover, Officer Holcomb also gave Kitchens incorrect
information concerning the consequences if
she refused to take the test. The transcript shows
that Officer Holcomb initially correctly informed
Kitchens, who held an Alabama driver's license,
that her Georgia *413 driver's license or privilege
to drive on the highways of this state would be suspended
for one year if she did not submit to the
574 S.E.2d 451 Page 2
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

state's test, but during his subsequent explanation of
her rights stated, “[s]o your second choice is to ...
not ... take that test. And once you do that, you're
automatically charged with a DUI and your license
[is] going to be suspended.” Kitchens then agreed
to take the test.
We find the trial court erred in failing to exclude
the test results in this case. Because the laws of this
state no longer require that the implied consent
warning be read exactly so long as the substance of
the notice remains unchanged, OCGA §
40-5-67.1(b)(3), we must now determine
whether the notice given was substantively accurate
so as to permit the driver to make an informed
decision about whether to consent to testing. In
Garrett v. Dept. of Public Safety, [237 Ga. 413,
415(2), 228 S.E.2d 812 (1976),] we recognized
that the purpose of the implied consent law is to
notify drivers of their rights so that they can
make informed decisions. Accordingly, we have
suppressed the results of chemical tests where the
driver was misinformed of his rights and where
that misinformation may have affected his decision
to consent. In State v. Coleman, [216
Ga.App. 598, 599, 455 S.E.2d 604 (1995),] for
example, we held that suppression was required
where an out-of-state driver was wrongly told
that he would lose his driver's license if he refused
testing. Likewise, we have suppressed evidence
of the driver's refusal to consent where that
refusal may have resulted from misleading information.
In State v. Terry, [236 Ga.App. 248,
511 S.E.2d 608 (1999),] for instance, we affirmed
the suppression of evidence of a driver's refusal
to take a blood test where police falsely informed
her that obtaining bond was a pre-condition to independent
testing. We agreed with the trial court
that the misinformation was confusing and could
have affected the driver's decision to refuse testing.
(Footnotes omitted.) State v. Becker, 240 Ga.App.
267, 271(2), 523 S.E.2d 98 (1999).
In this case, we cannot say that the substance of the
notice given was substantially accurate. When he
read the warning and when he explained it to Kitchens,
Officer Holcomb substantially altered the
substance of the notice by overstating the legal limit
of blood alcohol concentration to be 10 grams instead
of 0.10 grams. This court has previously recognized
that overstatement, as opposed to understatement,
of the legal limit of blood alcohol concentration
is the type of *414 misinformation that
might cause someone to submit to testing who
might otherwise refuse. See Maurer v. State, 240
Ga.App. 145, 147(2), 525 S.E.2d 104 (1999). The
state argues, however, that there is nothing in this
case to show that the erroneous overstatement of
the legal limit led Kitchens to submit to testing.
We find this argument unpersuasive.
“To accept the State's arguments, we must first find
that the [language concerning the legal limit] is
superfluous. This we refuse to do. We do not believe
substantial compliance means that it is permissible
to ignore completely the ‘particulars' of
the laws of this state or that it is permissible to
ignore statutory requirements as long as no harm
is shown. ‘The ... requirement is that when the
State seeks to prove the violation by evidence of
a chemical test, the State has the burden of
demonstrating compliance with the statutory requirements.’
(Cit.)”
State v. Hughes, 181 Ga.App. 464, 467, 352 S.E.2d
643 (1987). State v. Causey, 215 Ga.App. 85, 86,
449 S.E.2d 639 (1994).
We also find unavailing the state's reliance on State
v. Webb, 212 Ga.App. 872, 443 S.E.2d 630 (1994),
for the proposition that because Kitchens “was
simply confused,” no **454 harm has been shown.
The notice given in Webb was not inaccurate or
misleading, and Webb does not stand for the proposition
that misleading and inaccurate information
does no harm as long as the accused demonstrates
only general confusion or lack of understanding. As
the author of Webb subsequently made clear, erroneous
and misleading advice requires exclusion of
574 S.E.2d 451 Page 3
258 Ga.App. 411, 574 S.E.2d 451
(Cite as: 258 Ga.App. 411, 574 S.E.2d 451)

the state's test result. Allen v. State, 218 Ga.App.
844, 847(2), 463 S.E.2d 522 (1995).
Moreover, even assuming that drastically overstating
the legal limit of alcohol concentration had no
effect on Kitchens' decision to submit to the state's
test, the record discloses a clearer causal connection
between the officer misinforming Kitchens about
the consequences of her refusal to take the test and
her decision to submit to the test. As stated above,
Kitchens' decision to submit to the test occurred
immediately after Officer Holcomb misinformed
her that her driver's license, which was issued by
the State of Alabama, would be suspended if she refused
to submit to the test. As stated above, we
have previously recognized that misinforming the
holder of an out-of-state driver's license that refusal
to submit to the state's test would result in revocation
of the out-of-state license is the type of misleading
information which may affect the decision
to submit to the test, and may require suppression
of the test results. “Since the consent was based at
least in part on deceptively misleading information
concerning*415 a penalty for refusal, which the
State was unauthorized to implement, [defendant]
was deprived of making an informed choice under
the Implied Consent Statute. Accordingly, the test
results were rendered inadmissible.” Deckard v.
State, 210 Ga.App. 421, 423, 436 S.E.2d 536
(1993). See also State v. Coleman, 216 Ga.App.
598, 599, 455 S.E.2d 604 (1995). But see Rojas v.
State, 235 Ga.App. 524, 527-528(2), 509 S.E.2d 72
(1998) (misinformation about consequence of refusal
to take the state's test harmless because driver
had already refused to take test and misinformation
did not coerce driver to change decision and submit
to testing). And the fact that the officer initially
correctly informed Kitchens that her privilege to
drive on the highways of this state as opposed to
her out-of-state license would be revoked does not
change this result. In State v. Terry, 236 Ga.App. at
250, 511 S.E.2d 608 (1999), we held that inaccurate
and misleading information given in response to
questions about the implied consent notice may
lead to suppression of the state's test results, even
when the accused has previously been given an accurate
and complete notice.
Lastly, we also reject the state's argument that admission
of the test results did not give rise to harmful
error. The trial court, sitting without a jury, specifically
relied on the test results in reaching its
conclusion that Kitchens was a less safe driver,
stating, “[b]ased upon [the] result [of the state's
breath test], the court finds beyond a reasonable
doubt that she is guilty of the offense charged in
that the evidence shows the court that she was a
less safe driver. Her blood alcohol level was 0.199
which exceeds the legal limit significantly and the
evidence of her driving and personal demeanor revealed
that she was less safe to drive.” “ ‘The test
for harmful error is whether it is “highly probable”
that the error contributed to the judgment.’ Head v.
State[, 220 Ga.App. 281, 283(3), 469 S.E.2d 406
(1996)].” Smith v. State, 250 Ga.App. 583, 585(1),
552 S.E.2d 528 (2001). Because “[i]t is highly
probable that the evidence that [ Kitchens'] blood
alcohol level exceeded the legal limit contributed to
the trial court's determination that she was less safe
to drive[,] ... we cannot find the error harmless.”
(Footnote omitted.) Ladow v. State, 256 Ga.App.
726, 730, 569 S.E.2d 572 (2002). See also Smith v.
State, 250 Ga.App. at 585-586(1), 552 S.E.2d 528;
Carthon v. State, 248 Ga.App. 738, 742(1), 548
S.E.2d 649 (2001).
[2] 2. Kitchens also challenges the sufficiency of
the evidence. Having reviewed the transcript and
videotape of the stop, we find the properly admitted
evidence was sufficient to show beyond a reasonable
doubt that Kitchens was guilty of less safe
DUI.
Officer Holcomb testified and the videotape shows
that Kitchens was weaving repeatedly to both the
centerline and the fog line prior to the stop, and that
she did not immediately pull over when Officer
Holcomb activated his flashing lights. Officer Holcomb**
455 stated to Kitchens that the odor of alcohol
was “extremely heavy” and that her eyes
were bloodshot. The officer testified and the video-
574 S.E.2d 451 Page 4
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tape discloses that Kitchens stumbled up against
her vehicle as she exited, and Officer Holcomb testified
that he had her walk to the back of the vehicle
and lean against it because she could not maintain
her balance very well. The videotape also shows
that at one point during the stop Kitchens held on
to the back of the vehicle as she took a few steps toward
the side. Additionally, Kitchens twice failed
one of the field sobriety tests, and she registered
positive on an Alco-Sensor test. Officer Holcomb
also testified that, based on his experience, Kitchens
was a less safe driver. It is well established
that police officers may offer opinion testimony
that a defendant was a less safe driver. Byrd v.
State, 240 Ga.App. 354, 523 S.E.2d 578 (1999);
Waits v. State, 232 Ga.App. 357, 358(1), 501
S.E.2d 870 (1998). The evidence in this case was
sufficient to authorize a rational trier of fact to conclude
that Kitchens was under the influence of alcohol
to the extent that she was a less safe driver.
Johnson v. State, 249 Ga.App. 29, 30(1), 546
S.E.2d 922 (2001); Byrd v. State, 240 Ga.App. at
354, 523 S.E.2d 578. “Thus, although we determined
in Division 1 of this opinion that [ Kitchens']
conviction for driving under the influence ... must
be reversed, she may be retried for that offense because
a rational [trier of fact] may find the properly
admitted evidence is sufficient for conviction.”
Carthon v. State, 248 Ga.App. at 743(2), 548
S.E.2d 649.
Judgment affirmed in part and reversed in part.
RUFFIN, P.J., and BARNES, J., concur.
Ga.App.,2002.
Kitchens v. State
258 Ga.App. 411, 574 S.E.2d 451
END OF DOCUMENT
574 S.E.2d 451 Page 5
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San Diego's La Mesa Police Department is having a 4th of July DUI checkpoint.

San Diego DUI checkpoints are subject to strict rules and regulations.

The La Mesa Police Department will have extra California DUI officers on patrol that are specifically looking for drunk drivers this 4th of July weekend.

As part of the San Diego County AVOID the DUI campaign, many more cops will be looking for drunk drivers and asking questions folks do NOT have to answer, and asking folks to do things they don't have to do.

If you the San Diego / La Mesa DUI officer contacts you in the checkpoint or asks you to go to secondary for a California DUI assessment, politely roll down your window and perhaps put your hands on the steering wheel.

If a San Diego / La Mesa DUI officer asks you if you for anything other than (1) License, (2) Registration, and (3) Insurance, remember you don't have to answer. Just give them the three items and politely wait.

Do not make any statements to the La Mesa DUI cop.

The million dollar question the San Diego / La Mesa DUI officer is likely to ask is, "Have you had anything to drink tonight?"

Remember you are not required to speak to La Mesa checkpoint / drunk driving officers. Be brave and hold your ground.

San Diego Checkpoint La Mesa cops are trying to collect DUI evidence against you. Please do not give the officer anything other than license, registration and insurance.

"Officer, I understand and respect what you do for a living, but I do not want to answer any of your questions." You do NOT have to answer anything. If the cop insists, give him the name of a San Diego DUI attorney like Rick Mueller and his phone number: 1 800 THE LAW DUI. You know your rights.

The less DUI evidence the cops get, the better for you. If you have alcohol on your breath, you will get arrested anyway. But do not give the San Diego DUI checkpoint officer anything to put in that report that she or he can use against you later.

The San Diego / La Mesa DUI officer may ask you to perform some acrobatics or gymnastics aka field sobriety tests. Please remember to let him or her know that you do not wish to participate in any tests. You are not required to comply. San Diego DUI officers try to give some tests to try to figure out if you are impaired (but mostly just to collect evidence and point out the things you allegedly did wrong).

Many San Diego / La Mesa drunk driving cops learn how to do these tests, and thereafter forget them, often making up their own series of "tests." Please do not do them. Polite hold the course and continue to say that you do not wish to perform and tests. You have that right.

The San Diego / La Mesa DUI cop may ask you to blow into a hand-held, breath test gadget. Unless you are on DUI probation, please do not blow in the little box.

Hand-held breath test gadgets are unreliable, and often "display" falsely elevated numbers which are higher than your true BAC. Do not blow in the little box.

NO ROADSIDE/PRELIMINARY BREATH TEST IS "ALCOHOL SPECIFIC." Other junk (soy sauce, white bread, etc.) falsely tests positive as "alcohol."

Under the California Vehicle Code, you are NOT required to blow into the little hand held machine; you are entitled to refuse the little breath test.

But you must provide blood or breath on a big breath test machine per California's implied consent laws; do one (not both) and that's it. Nothing more. Politely.

For more information on how to avoid a San Diego DUI this weekend, visit How to Avoid a DUI.

Extensive San Diego DUI Lawyer information provided by San Diego County DUI Law Center's Drunk Driving Attorney for those accused of a San Diego California DUI. Trustworthy San Diego DUI help for San Diego DUI court and San Diego DMV. Help to save your license.

San Diego DUI Attorney Rick Mueller is a superb (Avvo-rated) San Diego Drunk Driving Lawyer, San Diego DUI & DMV Defense Attorney with over 25 years of experience. Known as a California DUI - DMV Guru, San Diego DUI Lawyer Rick Mueller dedicates 100% of his San Diego DUI law practice to aggressively defending those accused of San Diego Driving Under the Influence. San Diego California Criminal Defense Attorney Rick Mueller recently spoke at the California Attorneys For Criminal Justice annual DUI seminar in Rancho Mirage, California. Consider completing Free Evaluation for your best San Diego DUI defense attorney strategy.

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