#DUIdata (Blog)

New diversion program in California for misdemeanors and felonies

Posted by on July 5, 2018 in #DUIdata | 0 comments

New diversion program in California for misdemeanors and felonies

California Assembly Bill 1810 has been signed by the Governor, and this diversion program has immediately become law as California Penal Code 1001.36. This law is similar to diversion for military persons per California Penal Code 1001.80. First, keep in mind this may not be available for someone accused of DUI (see California Vehicle Code 23640). Although there were arguments from the People to stop the military diversion from applying to DUIs, and some Courts ruled military diversion DOES apply to DUIs (although the law was simply rewritten...

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Can the People dismiss, refile the same charges, then paper the same Judge? A’nope. Birts v. Superior Court

Posted by on July 1, 2018 in #DUIdata | 0 comments

Can the People dismiss, refile the same charges, then paper the same Judge? A’nope. Birts v. Superior Court

I have to begin by saying that this case is just silly. Check out this timeline: The case gets assigned to a Trial Judge. The Judge ruled on several pretrial motions against the People, and then they dismiss for insufficient evidence. The People file charges the next day with a new case number, although there are no new facts. The case goes to trial again and gets assigned to the same Judge as before. And the People move to disqualify the Judge per CCP 170.6. The Court finds this to be improper under the “continuation rule” which precludes “a...

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Is a check swab for a felony offense an unreasonable search? People v. Buza

Posted by on July 1, 2018 in #DUIdata | 0 comments

Is a check swab for a felony offense an unreasonable search? People v. Buza

Is a check swab for a felony offense an unreasonable search? The California Supreme Court say no, per their April 2, 2018 decision People v. Buza. Here, Defendant was arrested and booked on felony arson charges. For booking, the Jail required a cheek swab per the DNA Act (California Penal Code 298.1(a)), which Defendant refused. So he got an added criminal charge of refusing to provide a DNA sample. Jurors convicted across the board on all charges, both the arson and the DNA refusal. Defendant argues the cheek swab is an unreasonable search,...

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Can Police search your car two blocks away? People v. Johnson

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

Can Police search your car two blocks away? People v. Johnson

A car parked two blocks away from arrest is not within the automobile search incident to a recent occupant’s arrest. This is from the March 28, 2018 Court of Appeal, 2nd Appellate Dist., 7th Div. decision People v. Johnson, 21 Cal. App. 5th 1026. Let’s grab a quick recap of Constitutional rights and Police searching your vehicle, and then discuss Johnson. To start, “[a] search incident to a lawful arrest is a well-established exception to the general rule prohibiting warrantless searches.” The reasoning: Officer safety and possible...

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More decisions on implied consent as we await Arredondo

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

More decisions on implied consent as we await Arredondo

From February 26, 2016, the Court of Appeals of California, Sixth District decided People v. Arredondo which discussed whether implied consent for a DUI blood draw is actual consent (see 245 Cal.App.4th 186). I blogged about Arredondo here. Implied consent meaning that when you apply for a California driver license, CA DMV makes you sign into a statement saying if you’re arrested for DUI in California that you have given implied consent to submit to a chemical test. In Arredondo Defendant crashed his car, leaving him unconscious. About 90...

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You’re factually innocent…but you must wait the statutory time to motion for it.

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

You’re factually innocent…but you must wait the statutory time to motion for it.

Yep, you read the heading correctly. If Police arrest you for a crime, but then you’re factually innocent for that crime, you can still make a motion for factual innocence per California Penal Code 851.8 to have your arrest records sealed and destroyed…but you must first wait the statutory period the People have to file charges against you (usually it’s 1 year from arrest for misdemeanors, and 3 years for felonies). Real quick, this is California law and may differ outside of California. Ok, let’s discuss: This is from...

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Can you plead guilty, THEN appeal on grounds of unconstitutionality?

Posted by on April 2, 2018 in #DUIdata, Uncategorized | 0 comments

Can you plead guilty, THEN appeal on grounds of unconstitutionality?

The US Supreme Court just laid out this issue: Does a guilty plea by itself bar a federal criminal defendant from challenging the constitutionality of the statute of conviction on direct appeal? Restated: if you plead guilty to doing “it”… but “it” was not illegal…can you appeal and challenge the prosecution as being unconstitional? The US Supremes say even if you plead guilty, you can still appeal a conviction on the challenge of constitutionality. This whole situation makes me think of the Muppets in this scene in Muppets Most Wanted when...

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Can you get a DUI on a bicycle?

Posted by on March 28, 2018 in #DUIdata, Community | 0 comments

Can you get a DUI on a bicycle?

I recently posted about whether you could be arrested, charged, or convicted for a DUI on an electric or motorized scooter. San Diego has recently blown up with these things. At the end of that blog, I also talked how the same DUI fate could happen to you for being impaired while riding a bicycle. Yes, and bicycle. San Diego has also been seeing loads more bicycles from docked dockless shared bicycles. Some would think that riding a bicycle would be way smarter and safer than driving a car while impaired…but wouldn’t you know that...

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Can you get a DUI on one of those electric scooter things?

Posted by on March 27, 2018 in #DUIdata | 0 comments

Can you get a DUI on one of those electric scooter things?

These little buddies have recently been all over downtown San Diego. Companies like Bird, LimeBike (and their scootered version Lime-S), along with Ofo, MoBike and others swept through San Diego delivering rental-and-drop bicycles and motorized scooters to all the good boys and girls. So, if you’re enjoying some adult beverages…or some legal recreational herb…and decide to take a motor scooter for a spin…can you get a DUI? First, let me say all this is only California law. States outside California may or may not be...

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Can an incorrect ID/description of a civilian and Police trump the 4th Amendment?

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

Can an incorrect ID/description of a civilian and Police trump the 4th Amendment?

Can an incorrect ID/description of a civilian and Police trump the 4th Amendment? Here: yes it can. If Police detain the wrong suspect, but find bad stuff on the wrong suspect, does that violate the 4th Amendment? Well, it depends. But in this case, no it doesn’t offend the 4th. Here, Police released a “Be on the Lookout” flyer for a Penal Code 288 (lewd act on child) suspect. “The flier described the suspect as ‘WMA, Age: 30, 5’10”, 155 lbs, dark or brown shaggy hair w/beard, tan complexion, black shoes, black socks and a black...

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