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Update in whether a DUI blood draw requires a warrant. People v. Gutierrez

Posted by on October 16, 2018 in #DUIdata, Uncategorized | 0 comments

Update in whether a DUI blood draw requires a warrant. People v. Gutierrez

This 10/2/18 People v. Gutierrez* case comes down within a legal window left open from the 2016 US Supreme Court decision of Birchfield**. Birchfield held a breath test after a DUI arrest does not require a warrant but a blood test does…unless there is an exception to the warrant requirement (exigent circumstances, consent, or search incident to arrest). But what “Birchfield does not address is how the search-incident-to-arrest exception applies when a suspect is compelled to undergo BAC testing but given a choice as to what form...

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What role can a Judge play when Jurors ask a question during deliberations? People v. Fleming

Posted by on October 12, 2018 in #DUIdata, Uncategorized | 0 comments

What role can a Judge play when Jurors ask a question during deliberations? People v. Fleming

This is not uncommon at all in criminal trials: the Jurors begin deliberation and they get stuck and need clarification. Now, they can’t (well, are not supposed to..) just phone-a-friend or ask the Court Bailiff… But there are formal rules where they can write questions to the Judge, have the Judge talk with the attorneys, and get written responses back from the Judge. This September 27, 2018 case People v. Fleming* is a solid recap on how those laws work. And it also discusses what type of response is inappropriate for a Judge to...

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A spoken verdict trumps a written one. People v. Bailey

Posted by on October 10, 2018 in #DUIdata, Uncategorized | 0 comments

A spoken verdict trumps a written one. People v. Bailey

Criminal cases must reach a unanimous decision. Yep, we know that. But HOW the verdict is given: that’s what this September 20, 2018 case People v. Bailey* discusses. Or more directly: the verdict is first written on a verdict form…but what if any Juror gives a different verdict verbally in Court? Which is the true verdict? Bailey rules the spoken verdict is the true one. Let’s dive in: Facts in Bailey: Criminal case with 2 counts of DUI. Jurors say they have a verdict. The Clerk reads the verdict as written: guilties....

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Does mental diversion (Penal Code 1001.36) apply retroactively?

Posted by on October 4, 2018 in #DUIdata | 0 comments

Does mental diversion (Penal Code 1001.36) apply retroactively?

We’re starting to get case law decisions from Appellate Courts about the Mental Health Diversion Law (California Penal Code 1001.36, from AB 1810) Governor Brown inked this bill late June 2018 and it became effective June 27, 2018. You can see my blog about that law, although there seem to be some amendments being made to it. One question frequently asked is whether this law will apply only going forward? Or will it apply to older cases. From this September 28, 2018 decision People v. Frahs*, the rule is this mental health diversion law...

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Think you’re innocent? You get to argue that. McCoy v. Louisiana

Posted by on October 3, 2018 in #DUIdata | 0 comments

Think you’re innocent? You get to argue that. McCoy v. Louisiana

The quick rule here is if Defendant thinks he’s innocent, then he gets to claim and argue his innocence. Even if his lawyer thinks it’s a better strategy to admit guilt. This is from the May 14, 2018 US Supreme Court decision McCoy v. Louisiana (138 S Ct 1500) where Defendant was facing the death penalty for allegedly murdering a family. Defense Counsel advised to admit guilt at the trial phase and argue for something less than death at sentencing. Defendant took issue with this and “strenuously” objected through the trial while Counsel was...

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Thoughts on the SB 10 California bail law changes.

Posted by on August 29, 2018 in Uncategorized | 0 comments

Thoughts on the SB 10 California bail law changes.

August 28, 2018 Governor Brown signed SB 10, which is set to become law October 1, 2019. You can read the full text of SB 10 here and what will become new sections of the California Penal Code. But I’ll step through some of the main points to understand, as this will greatly change our bail laws and system in California. As I step through this, I’ll give the new California Penal Code sections where the language lives. It makes it a little clunky to read, but makes it much easier to track the exact language of what the law will...

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Automobile v. Curtilage Search…which wins? Collins v. Virginia

Posted by on August 20, 2018 in #DUIdata | 0 comments

Automobile v. Curtilage Search…which wins? Collins v. Virginia

Let’s start with the 4th Amendment, as it protects against warrantless, unlawful searches. However, we have some exceptions within the 4th Amendment: one being the warrantless search of an automobile. Generally automobiles have less Constitutional protections than do homes, with one of the main reasons is the “ready mobility” of a vehicle. There are other protections and rules in place, but generally “officers may search an automobile without having obtained a warrant so long as they have probable cause to do so.” Ok, but what if the vehicle...

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More on Sanchez hearsay and Ident-A-Drug. People v. Espinoza

Posted by on August 17, 2018 in #DUIdata | 0 comments

More on Sanchez hearsay and Ident-A-Drug. People v. Espinoza

In 2016, the Cal Supremes gave us Sanchez (63 Cal.4th 665). The rule in Sanchez is that experts cannot opine on a single, fact-specific hearsay (out of court statement) when testifying. Well, you know we can’t just leave it at that. So we’ve had appeals on that ruling. And the Court of Appeals are batting around the drug website Ident-A-Drug. Specifically, in 2017 the Court of Appeals of California, First District, Division Five gave us People v. Mooring (15 Cal. App. 5th 928), which I got blawgy with here. Moorings held expert testimony...

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If running a motion to suppress based on several searches, Defendant must identify government conduct that is objectionable.

Posted by on July 30, 2018 in #DUIdata | 0 comments

If running a motion to suppress based on several searches, Defendant must identify government conduct that is objectionable.

California Penal Code 1358.5 provides that evidence obtained in a warrantless search in violation of the 4th Amendment (unlawful search and seizure) can be suppressed. Well, what if Defendant is claiming there were several searches…and several pieces of evidence unlawfully obtained from the different searches? When filing the Motion to Suppress, must Defendant specifically identify which searches that are being objected to? From the May 15, 2018 decision Davis v. App. Division*, yes, Defendant must specifically identify the searches....

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Can the Prosecution comment on you not calling an alibi witness?

Posted by on July 25, 2018 in #DUIdata | 0 comments

Can the Prosecution comment on you not calling an alibi witness?

Let’s say you on trial for murder. The defense argument is the People cannot prove you actually did it, and that maybe you had an alibi. But…assume Defense does not call any witnesses for this alibi “Defendant was somewhere else” defense. With that, can the Prosecutor comment that Defense didn’t call any alibi witnesses? Well, we know any Defendant has a right to remain silent. And it’s improper if the Prosecution comments in trial about Defendant not testifying (it’s called Griffin Error, per the...

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