San Diego DUI Expungement/Dismissal legal update

San Diego DUI Attorney query: Race to Expunge a San Diego DUI ?

Is automatic Expungement/Dismissal of a San Diego DUI soon-to-be extinct?

New California DUI law eliminates almost completely key Penal Code Section 1203.4 [Dismissal/Expungement] and TVS for the following San Diego California misdemeanors:

1. Failure to stop at the scene of an accident.
2. Failure to stop at the scene of an accident where property is damaged.
3. Reckless driving.
4. Reckless driving with injury.
5. Reckless driving with specified serious injuries.
6. Driving under 21 with .05 percent BAC or above.
7. San Diego California Driving under the influence / San Diego DUI.
8. San Diego California Driving under the influence with injury.
9. Wet reckless (DUI plead to a reckless driving).

It is now discretionary. A San Diego DUI Court may deny the petition, or grant it.

AB 645 http://www.leginfo. ca.gov/cgi- bin/postquery? bill_number= ab_645&sess= CUR&house= B&search_ type=email . The Governator's ink is being prepared.


BILL NUMBER: AB 645 CHAPTERED
BILL TEXT

CHAPTER 161
FILED WITH SECRETARY OF STATE JULY 30, 2007
APPROVED BY GOVERNOR JULY 30, 2007
PASSED THE SENATE JULY 16, 2007
PASSED THE ASSEMBLY JULY 20, 2007
AMENDED IN SENATE JUNE 28, 2007
AMENDED IN SENATE JUNE 19, 2007
AMENDED IN ASSEMBLY MARCH 27, 2007

INTRODUCED BY Assembly Member Feuer
(Coauthor: Assembly Member Leno)

FEBRUARY 21, 2007

An act to amend Section 1203.4 of the Penal Code, and to amend
Sections 41501 and 42005 of the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


AB 645, Feuer. Vehicles: traffic violations: adjudication.
(1) Existing law authorizes a court to order a person issued a
notice to appear for a traffic violation to attend a traffic violator
school licensed under certain provisions of the Vehicle Code, in
lieu of adjudicating the traffic offense, and with the consent of the
defendant, or after conviction of a traffic offense. A court may
order a continuance against a person who receives a notice to appear
in court for a violation of a statute relating to the safe operation
of a vehicle, in consideration for attendance at a licensed school
for traffic violators, a licensed driving school, or any other
court-approved program of driving instruction. After that attendance,
the court may dismiss the complaint.
This bill would make these provisions inapplicable to a person
when the traffic offense is an offense that, if convicted, is
assigned 2 points in the calculation of a person's violation point
count for driver's license purposes.
Because this bill would impose increased duties on local criminal
justice systems, the bill would create a state-mandated local
program.
(2) Existing law provides a procedure for eligible persons to have
a conviction dismissed, and to be released from all penalties and
disabilities resulting from the offense of which they were convicted,
subject to certain exceptions.
This bill would provide that the above-described procedure does
not apply to a person convicted of hit-and-run violations, reckless
driving violations, and driving-under-the-influence violations.
However, if a person convicted of one of those offenses petitions the
court, the court in its discretion and in the interests of justice
would be authorized to order the above-described existing procedure
to that person.
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1203.4 of the Penal Code is amended to read:
1203.4. (a) In any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of probation,
or in any other case in which a court, in its discretion and the
interests of justice, determines that a defendant should be granted
the relief available under this section, the defendant shall, at any
time after the termination of the period of probation, if he or she
is not then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be permitted
by the court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has been
convicted after a plea of not guilty, the court shall set aside the
verdict of guilty; and, in either case, the court shall thereupon
dismiss the accusations or information against the defendant and
except as noted below, he or she shall thereafter be released from
all penalties and disabilities resulting from the offense of which he
or she has been convicted, except as provided in Section 13555 of
the Vehicle Code. The probationer shall be informed, in his or her
probation papers, of this right and privilege and his or her right,
if any, to petition for a certificate of rehabilitation and pardon.
The probationer may make the application and change of plea in person
or by attorney, or by the probation officer authorized in writing.
However, in any subsequent prosecution of the defendant for any other
offense, the prior conviction may be pleaded and proved and shall
have the same effect as if probation had not been granted or the
accusation or information dismissed. The order shall state, and the
probationer shall be informed, that the order does not relieve him or
her of the obligation to disclose the conviction in response to any
direct question contained in any questionnaire or application for
public office, for licensure by any state or local agency, or for
contracting with the California State Lottery.
Dismissal of an accusation or information pursuant to this section
does not permit a person to own, possess, or have in his or her
custody or control any firearm or prevent his or her conviction under
Section 12021.
This subdivision shall apply to all applications for relief under
this section which are filed on or after November 23, 1970.
(b) Subdivision (a) of this section does not apply to any
misdemeanor that is within the provisions of subdivision (b) of
Section 42001 of the Vehicle Code, to any violation of subdivision
(c) of Section 286, Section 288, subdivision (c) of Section 288a,
Section 288.5, or subdivision (j) of Section 289, any felony
conviction pursuant to subdivision (d) of Section 261.5, or to any
infraction.
(c) (1) Except as provided in paragraph (2), subdivision (a) does
not apply to a person who receives a notice to appear or is otherwise
charged with a violation of an offense described in subdivisions (a)
to (e), inclusive, of Section 12810 of the Vehicle Code.
(2) If a defendant who was convicted of a violation listed in
paragraph (1) petitions the court, the court in its discretion and in
the interests of justice, may order the relief provided pursuant to
subdivision (a) to that defendant.
(d) A person who petitions for a change of plea or setting aside
of a verdict under this section may be required to reimburse the
court for the actual costs of services rendered, whether or not the
petition is granted and the records are sealed or expunged, at a rate
to be determined by the court not to exceed one hundred twenty
dollars ($120), and to reimburse the county for the actual costs of
services rendered, whether or not the petition is granted and the
records are sealed or expunged, at a rate to be determined by the
county board of supervisors not to exceed one hundred twenty dollars
($120), and to reimburse any city for the actual costs of services
rendered, whether or not the petition is granted and the records are
sealed or expunged, at a rate to be determined by the city council
not to exceed one hundred twenty dollars ($120). Ability to make this
reimbursement shall be determined by the court using the standards
set forth in paragraph (2) of subdivision (g) of Section 987.8 and
shall not be a prerequisite to a person's eligibility under this
section. The court may order reimbursement in any case in which the
petitioner appears to have the ability to pay, without undue
hardship, all or any portion of the costs for services established
pursuant to this subdivision.
(e) Relief shall not be granted under this section unless the
prosecuting attorney has been given 15 days' notice of the petition
for relief. The probation officer shall notify the prosecuting
attorney when a petition is filed, pursuant to this section.
It shall be presumed that the prosecuting attorney has received
notice if proof of service is filed with the court.
(f) If, after receiving notice pursuant to subdivision (e), the
prosecuting attorney fails to appear and object to a petition for
dismissal, the prosecuting attorney may not move to set aside or
otherwise appeal the grant of that petition.
(g) Notwithstanding the above provisions or any other provision of
law, the Governor shall have the right to pardon a person convicted
of a violation of subdivision (c) of Section 286, Section 288,
subdivision (c) of Section 288a, Section 288.5, or subdivision (j) of
Section 289, if there are extraordinary circumstances.


Quickly contact a San Diego DUI Lawyer for immediate help.

What can happen to me for a San Diego DUI Conviction?

What are some Penalties for a San Diego California Drunk Driving Conviction?

Possible San Diego California DUI punishment includes:

Custody - from 48 hours to 6 months in San Diego County jail,
If DUI injury: up to many years in state prison
Public Work Service Program, Volunteer Work, or Community Service
Probation - formal (with a probation officer) or informal/summary
Monetary damages in the form of fines, penalties, and statutory restitution fees
Suspension, revocation or restriction of your California Driver License/privilege
Mandatory attendance at alcohol treatment programs
Appearance at MADD Victim Impact Panel Session
Car Impound
Installation of Ignition Interlock Device
Priorability to Increase Penalties & Enhance Punishment if a future California DUI


The imposition and severity of San Diego DUI penalties varies depending on prior DUI convictions and the circumstances of the San Diego DUI case.

In addition to California sanctions, San Diego DUI convictions usually result in significantly increased insurance premiums, and in certain cases, adverse San Diego DUI impacts on employment.

Contact a premier San Diego DUI Attorney for a free San Diego drunk driving lawyer consultation.

What you are up against with a San Diego DUI

San Diego California's DUI laws are among the harshest in the state and country.

Demand a vigorous, proven San Diego California DUI Attorney with the necessary San Diego Drunk Driving knowledge and San Diego DUI expertise.

A San Diego DUI Attorney Specialist will get you the best possible resolution of your pending San Diego DUI criminal case and San Diego DMV case.

In San Diego, you begin being charged with a San Diego California DUI.

Depending on the facts of your San Diego DUI case and, more importantly, who your San Diego DUI Lawyer is, will determine whether or not you may be able to get your San Diego DUI charge dropped or reduced down to a lesser offense.

Below is a list of the types of San Diego California DUI lawyer statutes dealing with a San Diego DUI.

San Diego California DUI Laws:

Under 21 (Non-Injury) Minor California DUI Statutes
Over 21 (Non-Injury) Adult California DUI Statutes

First California DUI Offense
Second California DUI Offense
Third California DUI Offense

California Drunk Driving Enhancement Laws:

Minor Passenger Under 14 In the Car During DUI
Refusal to Submit to or Failure to Complete Chemical Test
Excessive Blood Alcohol Level .20 or Above
Second or Subsequent Offense Involving Alcohol or Drugs - Multiple DUI's
Speeding 20 or More mph on the Street or 30 or More mph on Freeway + Reckless Driving Under CVC 23103
Impoundment of Vehicles or Sale as Nuisance
Fourth or Subsequent DUI Conviction Within Ten (10) Years Makes Current DUI Chargeable as a Felony
Prior Felony Conviction Within Ten (10) Years Makes Current DUI Chargeable as a Felony
DUI in Highway Construction or Maintenance Zone
DUI in Safety Enhancement Zone
Bodily Injury Inflicted on Another Person

Above San Diego Drunk Driving Enhancements substantially increase penalties &/or punishment, including but not limited to possible Jail time, unless the applicable San Diego California DUI Enhancement is dropped, reduced or not pursued.

Contact a San Diego California DUI Attorney to give you a better understanding of what your best San Diego drunk driving defense strategy or San Diego DMV tactic may be.

For a Free San Diego DUI Lawyer Evaluation, go to http://www.SanDiegoDUIlawyer.com/survey.html .

Cop Must Disclose Records of San Diego Police Misconduct

San Diego DUI Attorney news:

San Diego State Officer must show personnel records containing possible misconduct

Filed 7/26/07 Bailey v. Sup. Ct. CA4/1

COURT OF APPEAL - FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



ANDREW BAILEY,

Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;
D050344

(San Diego County
Super. Ct. No. GIC879531)

BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY ON BEHALF OF SAN DIEGO STATE UNIVERSITY'S POLICE DEPARTMENT,

Real Party in Interest.



Proceedings in mandate after the Superior Court of San Diego County denied a motion for discovery of peace officer personnel information. Roger M. Krauel, Judge. Petition granted.
After being charged with a misdemeanor count of willfully and unlawfully resisting, delaying and obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)), Andrew Bailey filed a Pitchess motion seeking discovery of information in a police officer's personnel file. Bailey claimed that statements in the police report regarding his detention near San Diego State University (SDSU) for Vehicle Code violations by SDSU police officer M. Duncan were false, and accordingly sought information from Duncan's files and records with the SDSU police department about prior complaints of falsifying police reports and other related acts reflecting on Duncan's dishonesty. The trial court denied the motion, finding that Bailey's moving papers failed to present a sufficient "factual scenario" showing good cause to warrant in camera review of Duncan's personnel records.
Bailey filed this petition for writ of mandate challenging the court's ruling after the Appellate Division of the San Diego Superior Court (Appellate Division) summarily denied his petition for writ of mandate in that court. Bailey contends that the general allegations in his counsel's declaration were sufficient to meet the low threshold for establishing good cause for discovery and that the court's denial of in camera review of those records was thus an abuse of discretion. We requested a response from the real party in interest, the Board of Trustees of California State University (CSU), and subsequently issued an order to show cause (OSC).
We conclude the court abused its discretion in denying Bailey's request for in camera review. Accordingly, we grant the writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
According to Officer Duncan's report, on June 26, 2006, at about 5:15 p.m., Duncan stopped an adult male, later identified as Bailey, after observing him jaywalk without yielding to oncoming traffic as he crossed a street near SDSU without using the crosswalk. Bailey immediately started flailing his arms in the air and said, "I don't like cops, [and y]ou have no right to stop me. . . ." Bailey then dropped the three bags he was carrying and started walking in circles in front of Duncan. Duncan told Bailey to "stop and relax," but Bailey refused, saying "I'm late for my class, I need to go."
When Duncan told Bailey he was not free to leave until he issued him a citation for the Vehicle Code violations he had just observed, Bailey picked up his three bags, said he was going to speak to Duncan's police chief, and started to walk away. Duncan again told Bailey to stop, but Bailey kept walking away, shouting, "Fuck you pigs." "Based on Bailey's behavior, his direct and conscious decision to ignore and disobey [his] commands and his refusal to remain on [the] scene," Duncan arrested Bailey for resisting, obstructing and delaying a peace officer.
Bailey brought a Pitchess motion, seeking discovery from police files and records in possession of the SDSU police department in support of his defense that the charge against him was fabricated. He specifically sought "[a]ny evidence of, or complaints of: (1) false or inaccurate police reports based on intentional omission of the names of the officers who were present at the scene, (2) false claims of probable cause, (3) false arrests, (4) false statements in police reports, (5) false testimony, and (6) any other evidence of or complaints of dishonesty by Officer M. Duncan (I.D. #2525)."
In Bailey's counsel's declaration filed in support of the motion, counsel stated that at the time Duncan stopped Bailey for the Vehicle Code violations, he called for assistance and two other SDSU police officers arrived on the scene, but Duncan made no mention of their presence in his written police report. For the next 10 to 15 minutes, Duncan detained Bailey, but at no time did he cite him for the alleged Vehicle Code violations. Bailey denied he resisted, obstructed or delayed any police officer and claimed he "was cooperative and respectful at all times during the detention." Toward the end of the detention, Duncan asked Bailey if he could search his bags. When Bailey refused to consent to a search of the bags, saying he had to leave for his class, Duncan became upset and ordered Bailey to stand up against his patrol car. Duncan then arrested Bailey for violating Penal Code section 148, subdivision (a). Bailey denied he walked away from Duncan at any time during the detention.
In opposition to the Pitchess motion, CSU noted it did not contest whether Bailey had established good cause for an in camera review of Duncan's file and records, but only contested Bailey's "request for information relating to Off[icer] Duncan that is more than five years old, in violation of Evidence Code section 1045."
At oral argument, the court announced its tentative ruling to deny the motion because defense counsel's supporting declaration was too conclusory and did not contain enough factual details to directly counter each allegation in the police report, including the facts that Bailey failed to yield to traffic and jaywalked, and that Bailey flailed his arms around and walked away from Duncan. The court explained that Bailey's "flat denial" of not walking away did not provide an adequate factual scenario to describe what Bailey was doing during the detention. The court expressed its belief that Bailey was required to specifically deny flailing his arms and walking in circles and needed to say he "didn't start to walk away" and "was standing still." As the trial judge noted, "the problem with the declaration [is i]t doesn't fill in what I think could be filled in."
After hearing argument from both counsel, in which CSU changed its position to agree with the court that Bailey had not shown good cause for an in camera review, the court denied the motion with prejudice, finding "that the moving papers failed to present sufficient material to satisfy the requirement that the factual scenario will be presented that when read in light of the pertinent documents makes it reasonable to believe that the alleged police misconduct could or may have occurred."
This petition for writ of mandate followed the summary denial of Bailey's unopposed writ of mandate submitted initially to the Appellate Division.
DISCUSSION
Bailey contends that the trial court abused its discretion in denying his Pitchess motion because the general allegations in his counsel's declaration in support of the motion were sufficient to show a "specific factual scenario" supporting his defense of officer dishonesty to meet the low threshold for establishing good cause for discovery. We agree and conclude the trial court should have held an in camera review to determine whether CSU was in possession of any information proper for production that was relevant to Bailey's defense.
1. Pertinent Law
With regard to discovery of peace officer records in general, our Supreme Court in 1974 first established the guidelines and motion procedure for such discovery in Pitchess, supra, 11 Cal.3d 531. (See Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019 (Warrick).) Then, "[i]n 1978, the California Legislature codified the privileges and procedures surrounding what had come to be known as 'Pitchess motions' [citation] through the enactment of Penal Code sections 832.7 and 832.8 and Evidence Code

sections 1043 through 1045." (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 81 (City of Santa Cruz), fns. omitted.) These Penal Code sections define "[p]eace officer personnel records" and provide they are "confidential," but subject to discovery pursuant to certain procedures set out in the Evidence Code. (Id. at pp. 81-82, fn. 3.) Together, Evidence Code sections 1043 and 1045 "establish a two step procedure for discovery of peace officer personnel records by a criminal defendant. First, section 1043 requires the defendant to file a written motion for discovery of peace officer personnel records. The motion must include '[a] description of the type of records or information sought,' supported by '[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that such governmental agency identified has the records or information from the records.' [Citations.] [¶] The second step[, which is an in camera examination of the records to determine whether they have any relevance to the issues presented in the current case,] is reached after [a] defendant makes a showing of good cause for the discovery. [Citation.]" (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1019-1020 (CHP); City of San Jose v. Superior Court (1998) 67 Cal.App.4th 1135, 1143, fn. omitted.)
Under the first step, the declaration generally must establish a "specific factual scenario" establishing a "plausible factual foundation" for the allegations of police misconduct. (City of Santa Cruz, supra, 49 Cal.3d 74, 85-86.) This initial burden of good cause and materiality to justify an in camera review of records is a "relatively relaxed" standard. (Id. at pp. 83-84.) "In contrast to the detailed showing required by some civil discovery statutes [citation], the requisite showing in a criminal matter 'may be satisfied by general allegations which establish some cause for discovery' other than a mere desire for all information in the possession of the prosecution. [Citation.] The information sought must, however, be 'requested with adequate specificity to preclude the possibility that defendant is engaging in a "fishing expedition." ' " (Id. at pp. 84-85.) Information is material if it " 'will facilitate the ascertainment of the facts and a fair trial.' [Citation.]" (Ibid.; Brant v. Superior Court (2003) 108 Cal.App.4th 100, 105.) "[A] declaration by counsel on information and belief is sufficient to state facts to satisfy the 'materiality' component of [Evidence Code section 1043]." (Abatti v. Superior Court (2003) 112 Cal.App.4th 39, 51.)
In Warrick, supra, 35 Cal.4th 1011, our Supreme Court examined and clarified the minimal showing a defendant must make in order to meet the first step in the process of obtaining police records on a Pitchess motion. (Id. at pp. 1021-1026.) The high court noted that with regard to this step, some courts have adhered to a strict good cause inquiry requiring a "specific factual scenario" that establishes a "plausible factual foundation" based on the decision in City of Santa Cruz, supra, 49 Cal.3d 74, while other courts have decided the good cause inquiry "around the statutory formulation of materiality to the subject matter of the pending litigation [citation] or some equivalent terminology. [Citations.]" (Warrick, supra, 35 Cal.4th at p. 1021.) The court explained that "[r]egardless of how the materiality inquiry is described, . . . a showing of good cause requires the defendant seeking Pitchess discovery to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Ibid.) This relevancy showing requires "some specificity" to ensure that the discovery is warranted. (Ibid.)
The court in Warrick reaffirmed that good cause for discovery is a "relatively low threshold" measured by "relatively relaxed standards." (Warrick, supra, 35 Cal.4th at pp. 1016, 1019.) It rejected as too stringent a standard requiring that the factual foundation for showing good cause be "reasonably probable or apparently credible." (Id. at pp. 1025-1026.) Instead, the court concluded that the defendant's factual scenario of officer misconduct need only be "one that might or could have occurred" even if it were unlikely. (Id. at p. 1026.) Nor need the scenario be corroborated or set forth a motive. (Id. at pp. 1023, 1025.) The scenario is plausible if it "presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
The court in Warrick noted that in come cases, a mere denial of the facts asserted in the police report may suffice to show a specific, plausible factual scenario. (Warrick, supra, 35 Cal.4th at pp. 1024-1025; see also (People v. Hustead (1999) 74 Cal.App.4th 410, 416-418 (Hustead).) In other cases, the trial court may be required to further evaluate the factual scenario set forth in the defense affidavit, in light of an evaluation of all the documents presented by the parties, to determine whether there is a plausible factual foundation for the alleged misconduct. (Warrick, supra, at p. 1025; see also City of Santa Cruz, supra, 49 Cal.3d at pp. 85-86.)
The court in Warrick then articulated an analytical framework for the trial courts to use when reviewing the declarations and papers before it on a Pitchess motion. (Warrick, supra, 35 Cal.4th at pp. 1026-1027.) According to Warrick,
"To determine whether the defendant has established good cause for in-chambers review of an officer's personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense . . . ? Under what theory would the requested information be admissible at trial? If defense counsel's affidavit in support of the Pitchess motion adequately responds to these questions, and states 'upon reasonable belief that the governmental agency identified has the records or information from the records' [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant." (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)

Using this analytical approach, the court in Warrick found that the defendant, who was charged with possession of cocaine for sale after three officers had seen him drop numerous rocks of cocaine from a bag he was holding as he fled the officers in a high narcotics activity area, had articulated a sufficiently specific factual scenario of officer misconduct by claiming that he was at the scene merely to purchase cocaine; when the police arrived he fled and ran past the actual seller; and the police were falsely accusing him of being the seller. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1022-1023.) The court found this scenario was plausible because it was internally consistent and relevant to prove the defense that he did not possess cocaine for sale (id. at p. 1027), and that the defendant's "den[ial of] the factual assertions made in the police report--that he possessed and discarded the cocaine . . . established 'a reasonable inference that the [reporting] officer may not have been truthful.' [Citation.]" (Id. at p. 1023, second brackets in original.)
2. Analysis
In this case, the trial court denied Bailey's Pitchess motion because it found defense counsel's declaration failed to present a sufficient "factual scenario" showing good cause for in camera review of Officer Duncan's personnel files. Although we recognize that the trial court has wide discretion when ruling on a Pitchess motion (People v. Memro (1995) 11 Cal.4th 786, 832), its exercise of discretion is not unlimited and must be governed by the above controlling legal principles. (See People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) We review the court's ruling denying Bailey's motion under the abuse of discretion standard. (CHP, supra, 84 Cal.App.4th at p. 1019.)
Having reviewed the record under such standard in light of the above analytical framework set forth in Warrick, we believe Bailey has met the "relatively relaxed" threshold of showing good cause for an in camera review of potentially relevant documents and that the trial court therefore abused its discretion in denying Bailey's Pitchess motion. Bailey's counsel's declaration addressed each of the points in the Warrick framework. As noted earlier, counsel alleged upon information and belief that Bailey denied walking away from Duncan during the detention; denied resisting, obstructing or delaying Duncan in citing him for certain Vehicle Code violations during that detention; claimed he "was cooperative and respectful at all times during the detention;" and claimed Duncan became angry when he would not consent to a search of his three bags. Based on these facts, counsel alleged that Duncan falsified his police report regarding these matters as well as omitting the fact that two other officers were called to the scene by Duncan. Counsel alleged that Bailey's defense would be that the charges were fabricated by Duncan because Bailey did not resist being cited on the Vehicle Code violations and did not walk away from Duncan. These facts set forth a "specific factual scenario" establishing a "plausible factual foundation" for the allegations of police misconduct.
Similar to the situation in Warrick, the declaration "articulated a sufficiently specific factual scenario of officer misconduct" by claiming that Bailey was cooperating during the detention and not obstructing Duncan or walking away from him, and claiming that Duncan was falsely accusing him of resisting and obstructing arrest. (Warrick, supra, 35 Cal.4th at pp. 1016-1017, 1022-1023; see also Hustead, supra, 74 Cal.App.4th at pp. 416-418.) This scenario was plausible because it was internally consistent and relevant to prove Bailey's defense that he did not resist arrest (Warrick, supra, at p. 1027), and that Bailey's "den[ial of] the factual assertions made in the police report—that he [walked away and obstructed or delayed Duncan in writing Vehicle Code violations] . . . established 'a reasonable inference that the [reporting] officer may not have been truthful.' " (Id. at p. 1023, second brackets in original.) As the court in Warrick explained, a defendant is not required to present a credible or believable account of officer misconduct. Rather, the defendant must only present evidence showing that it might or could have occurred. "The trial court does not determine whether a defendant's version of events, with or without corroborating collateral evidence, is persuasive--a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty." (Warrick, supra, 35 Cal.4th at p. 1026.) Bailey's declaration satisfied this standard.
Further, counsel's declaration and the supporting motion papers showed that the requested discovery is tailored to Bailey's defense because it is limited to complaints of falsifying police reports and related misconduct of dishonesty in the records in possession of CSU or the SDSU police department. The requested discovery is likely to lead to supportive information because, if there are prior complaints of falsifying police reports or other complaints of dishonesty by Duncan, that information may help Bailey develop admissible impeachment evidence, which is the theory under which such information would be admissible. Therefore, under Warrick, Bailey has shown good cause for an in camera review of Duncan's personnel files in possession of CSU and the SDSU police department.
In sum, because defense counsel's declaration meets the low threshold and objective of Warrick's analytical framework for Pitchess discovery by providing general allegations and simple denials that provide a plausible factual scenario of officer misconduct and ensure the materiality of the requested information to Bailey's defense, the trial court abused its discretion in denying Bailey's Pitchess motion.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its December 8, 2006 order denying Bailey's Pitchess motion and directing the court to conduct an in camera review of Officer Duncan's personnel records. This decision will become final as to this court 10 days after the date of filing. (Cal. Rules of Court, rule 8.264(b)(3).)


HUFFMAN, J.

WE CONCUR:



McCONNELL, P. J.



McINTYRE, J.

General DMV Information if arrested for San Diego DUI

San Diego DUI Attorney information

"I've just been arrested for a San Diego California DUI. What happens now?"

The San Diego County California DUI officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the San Diego DMV.

The DMV automatically conducts an administrative review that includes an examination of the officer's report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.

You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

San Diego DMV rarely sets aside an action based on a San Diego DUI upon automatic administrative review. A hearing is normally requested by a San Diego DUI Lawyer.
--------------------------------------------------------------------------------

"At the time of my San Diego drunk driving arrest, the officer confiscated my driver license. How do I get it back?"

Contact a San Diego Drunk Driving Attorney who can best advise you. Your driver license will be returned to you at the end of the suspension or revocation, provided you pay (on or after January 1, 2003) a $125 reissue fee to the DMV and you file proof of financial responsibility. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392.

After your San Diego DUI Lawyer requests a hearing, if it is determined that there is not a basis for the suspension or revocation, your driver license will be issued or returned to you.
--------------------------------------------------------------------------------

"The San Diego County DUI officer issued me a pink Order of Suspension and Temporary License. What am I supposed to do with this document?"

You may drive for 30 days from the date the order of suspension or revocation was issued, provided you have been issued a California driver license and your driver license is not expired, or your driving privilege is not suspended or revoked for some other reason.

--------------------------------------------------------------------------------

"The Notice of Suspension that the San Diego California DUI officer gave me at the time of my arrest states I have 10 (ten) calendar days to request an administrative hearing. What is the purpose of this hearing and what can it do for me?"

A San Diego DUI - DMV APS hearing is your San Diego Drunk Driving Attorney's opportunity to show that the suspension or revocation is not justified. There are many complicated issues. Contact a San Diego DUI Lawyer asap.

--------------------------------------------------------------------------------

"For how long could my driving privilege be suspended if I took the chemical test and if San Diego DMV upholds the San Diego DUI - DMV suspension?"

If you are 21 years of age or older, took a blood or breath test, or (if applicable) a urine test, and the results showed 0.08% BAC or more:

A first offense will result in a 4-month suspension.

A second or subsequent offense within 10 years will result in a 1-year suspension.

If you are under 21 year of age, took a preliminary alcohol screening (PAS) test or other chemical test and results showed 0.01% BAC or more, your driving privilege will be suspended for 1 year.


--------------------------------------------------------------------------------

"Do I need a San Diego DUI - DMV Administrative Per Se hearing to get a restricted license to go to and from work?"

Not if you are willing to accept a mandatory initial suspension period for at least 30 days. A request for a restricted license cannot be considered at the DMV hearing. You may apply for a restricted license to drive to and from work at any DMV field office. Contact a San Diego DUI Attorney for help in deciding these issues.

--------------------------------------------------------------------------------

"The San Diego DUI officer indicated in the pink Order of Suspension or stated I refused to take a chemical test. What does this mean?"

You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. You did not submit to or complete a blood or breath test after being requested to do so by a peace officer. As of January 1999, a urine test is no longer available unless:

The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
Both the blood or breath tests are not available, or
You are a hemophiliac, or
You are taking anticoagulant medication in conjunction with a heart condition.

A San Diego DUI Attorney can explain how a refusal hearing can be won in your case.

--------------------------------------------------------------------------------

"How long could my driving privilege be suspended for not taking the chemical test if the California DUI refusal hearing is upheld?"

If you were 21 years of older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

A first offense will result in a 1-year suspension.
A second offense within 10 years will result in a 2-year revocation.
A third or subsequent offense within 10 years will result in a 3-year revocation.
If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

A first offense will result in a 1-year suspension.
A second offense within 10 years will result in a 2-year revocation.
A third or subsequent offense within 10 years will result in a 3-year revocation.
--------------------------------------------------------------------------------

"How is the DMV suspension or revocation for the DUI arrest different from the suspension or revocation following my conviction in criminal court?"

The San Diego DMV suspension or revocation is a civil or administrative per se action taken against your driving privilege only. The suspension or revocation following a conviction in San Diego DUI court is a mandatory action for which jail, fine, or other criminal penalty can be imposed.

San Diego DUI Attorneys can explain the difference between San Diego DUI court and San Diego DMV.

San Diego DUI Chemical Testing Principles & Limitations

DUI Attorney San Diego - Testing Alcohol

Alcohol is a drug that affects the central nervous system.

Impairment from alcohol poisoning was originally defined by blood alcohol levels.

The legal limit for a San Diego DUI arrestee is 0.08% BAC. It is claimed by San Diego DUI Breath Test Manufacturers and Prosecution experts that San Diego DUI people showed measurable mental impairment at around 0.05% blood alcohol concentration (BAC).

Above this level, it has been found that motor functions purportedly deteriorate progressively with increased blood alcohol concentrations. This is open to scientific debate and varies from person to person. For the average San Diego DUI person, unconsciousness results by 0.40% BAC. Above 0.50% (BAC), basic body functions such as the breathing or the beating action of the heart can be depressed to the point that death can occur.

Blood was the medium originally used to measure alcohol concentrations in the human body.

San Diego DUI Blood tests theoretically offer the ability to accurately test the same San Diego DUI arrestee sample several times, if the sample is maintained properly, all San Diego DUI blood procedures are done properly and all California DUI regulations are strictly followed.

Some disadvantages with San Diego DUI blood analysis is that the collection process requires trained & authorized medical personnel, the sample collection is invasive, the analysis requires precise procedures by trained lab technicians , the results are not immediately available, the overall process is costly, etc.

In the 1930's, the pioneers in the development of breath alcohol testing took advantage of the fact that alcohol was found in the deep lung breath in proportion the alcohol found in the blood.

San Diego DUI breath testing machines were manufactured to try to capture a sample of alveolar breath for analyses. Some of the early instruments were crude; breath analytical instruments have relatively evolved into low cost, often accurate, rapid analytical systems that more simply and painlessly collect a sample and estimate a result.

This result can sometimes be a reliable estimate of the San Diego DUI arrestee's BAC as long as the operator is properly trained, all San Diego DUI collection & analysis procedures are properly followed, and all California DUI breath test regulations are strictly adhered to.

A San Diego Drunk Driving Attorney can help determine whether the subject San Diego California DUI test criteria exists and if the test is reliable & accurate.

7 arrested at San Diego California DUI Checkpoint

San Diego California DUI criminal defense attorney news

DUI checkpoint in San Diego

July 22, 2007

San Diego California County Sheriff's DUI Deputies arrested 7 folks for San Diego DUI / San Diego drunk driving. They will need San Diego DUI Lawyers to battle for them after a 6 hour checkpoint in Imperial Beach Friday night / Saturday morning.

Over 900 motorists were unnecessarily intruded upon in order to conduct the San Diego California Drunk Driving Checkpoint Operation.

Palm Ave. near 10th street created traffic problems for both San Diego DUI drivers and otherwise innocent San Diego Citizens.

DUI Deputies with the San Diego Sheriff's Imperial Beach Station conducted 19 San Diego DUI field sobriety tests. In addition to the seven arrests on suspicion of San Diego driving under the influence, they made one arrest on public intoxication, one arrest on possession of narcotics and one arrest on a felony warrant. Deputies impounded 11 vehicles and issued six citations on license violations.

This San Diego DUI arrestee fishing expedition was again funded by a "grant" from the National Highway Traffic Safety Administration.

San Diego DUI Attorney can help

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. http://www.SanDiegoDUILawyer.com

Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California. http://www.sandiegoduilawyer.com/survey.html

San Diego DUI Attorney Rick Mueller Background and Contact Information http://www.sandiegoduilawyer.com/about.html

San Diego DUI and DMV Penalties http://www.sandiegoduilawyer.com/penalty.html

Out of State License/Resident & Driving Record http://www.sandiegoduilawyer.com/out_of_state.html

Military Base DUI - San Diego County Federal Court - http://www.sandiegoduilawyer.com/base.html

San Diego DMV administrative hearings

What is a San Diego DMV administrative hearing?

When San Diego California DMV orders an action against a person's driving privilege, that person generally has the right to a hearing before DMV to contest the action and review the San Diego DMV evidence supporting it.

A San Diego DUI / San Diego drunk driving arrest usually triggers an administrative per se action, for example. A San Diego DUI Attorney usually handles the entire administrative process. A San Diego DUI Lawyer will prepare the case and attend the hearing.

A person must request a San Diego DMV hearing within 10 days of receiving notice of the action against the driving privilege. The hearing proceedings are tape recorded on CD-roms and are conducted by telephone or in person at the San Diego DMV Office of Driver Safety, 9174 Sky Park Court, San Diego, CA. The San Diego DMV hearing is held before a Driver Safety Hearing Officer of the department.

At the San Diego DMV hearing, the driver is informed of the legal grounds for the action, and has the opportunity to review and challenge the evidence of the department, and to present evidence, witnesses and testimony to persuade the department to modify or rescind the action. The rules that control these hearings are found in the Vehicle Code, the Government Code (Administrative Procedures Act) and in various Appellate and Supreme Court rulings. Following the hearing, the Driver Safety Hearing Officer will make a decision to uphold (sustain), modify, or rescind (set aside) the DMV action.

San Diego California DUI Crash - Not Guilty entered

SAN DIEGO California DUI criminal defense attorney news

A man accused of a San Diego DUI and fleeing the freeway crash that killed his 9-year-old son pleaded not guilty yesterday to gross vehicular manslaughter and other charges.

Marcos Munoz Sanchez faces several felony and misdemeanor charges, including child endangerment, San Diego DUI driving under the influence and hit-and-run. If convicted, he could be sent to prison for up to 15 years.

San Diego Superior Court Judge David M. Szumowski set bail for Munoz at $500,000.

The Deputy District Attorney said he was driving on Interstate 8 near Texas Street on Saturday when he crashed into a car parked on the shoulder around 1:40 a.m. His son, Alex Munoz, was in the passenger seat and died .

A witness came out of a nearby restaurant shortly after the crash and saw a man running from the area. San Diego DUI Police later saw a white pickup circling the restaurant. San Diego Drunk Driving police saw the same truck again that day near the family's Linda Vista apartment and contacted the men inside.

Marcos Munoz, the passenger, had minor injuries and glass in his hair and clothes. Another man, Raul Munoz Sanchez, was allegedly driving the pickup.

Raul Munoz , 33, pleaded not guilty yesterday to a charge of being an accessory after the fact and several misdemeanors, including San Diego DUI / San Diego drunk driving. He could be sent to prison for up to three years if convicted. He is being held in county jail in lieu of $50,000 bail.

Raul Munoz 's blood-alcohol content was allegedly measured at 0.19 percent after his San Diego DUI arrest. Marcos Munoz 's blood-alcohol content measured 0.11 percent a little more than three hours after the San Diego Drunk Driving collision. The legal threshold for San Diego / California drunk driving is 0.08 percent. Their San Diego Drunk Driving / criminal / DUI defense lawyers will be working hard.

San Diego California DUI legal & procedural overview

San Diego California has California DUI law - the most strict in the USA - 2 cases immediately are triggered any time a person is arrested for DUI. 3 cases if you also include San Diego's California Department of Motor Vehicles (DMV) administrative per se hearing.

First, the California Vehicle Code section 23152(a) case.
Second, the California Vehicle Code section 23152(b) case
Lastly, the drivers license privilege case in the DMV.

The San Diego California DUI court will usually handle the first two charges - If the San Diego DUI arrestee refuses to take a chemical test, only the first San Diego DUI charge will usually be prosecuted. But an additional charge of refusing the San Diego DUI chemical test will be added.

San Diego California DMV / APS civil case deals with one's right to drive in San Diego California and throughout California, one's California drivers license, and/or one's out-of-state license with the privilege to drive in San Diego California.

A San Diego Drunk Driving arrestee's San Diego DUI Lawyer must set up the DMV DUI hearing/trial by contacting San Diego DMV within the first 10 calendar days after the San Diego California DUI arrest. A person will most likely lose this case at the DMV if he/she doesn't have a San Diego DUI lawyer or San Diego drunk driving attorney handle the San Diego California DMV hearing.

A person charged in San Diego California for a San Diego DUI who was on drugs will only be charged with California Vehicle Code section 23152(a). For this count, the prosecutor will try to prove that the San Diego California DUI arrestee had lost their physical or mental faculties or they were unable to drive their car with the same caution characteristic of a sober person, under the same or similar circumstances. One can get convicted for San Diego California DUI or San Diego California drunk driving even though she or he has not consumed any alcoholic beverages. This applies to prescription drugs as well. A San Diego DUI arrestee can be charged and convicted without any alcohol in your body: just with what the doctor prescribed.

The San Diego California Vehicle Code section 23152(b) charge is for alcohol - one must be .08% or more blood or breath alcohol content. The San Diego California DMV applies this same standard. A San Diego DUI arrestee will usually win her or his Administrative Per Se hearing at the DMV if she or he has less than .08% alcohol level as measured by the San Diego DUI police tests.

A San Diego person under 21 years old in San Diego California is not allowed to consume any alcoholic beverages. A San Diego California Under 21 arrestee is generally prohibited from drinking and driving. A .01% or more standard applies. Consult a San Diego DUI Lawyer to see if a challenge or foundational objection can be made to this San Diego DUI attorney evidence.

California DUI is Not a Lesser Included Offense of Gross Vehicular Manslaughter

San Diego DUI Lawyer news

July 17, 2007

Michael Paiz, Jr., (appellant) was found guilty after jury trial of one count of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). He pled no contest to one count of driving while privileges were suspended due to prior driving under the influence (DUI) violations (Veh. Code, § 14601.2, subd. (a)). The trial court sentenced appellant to 17 years to life.

Relevant Lesser Included Offense law in today's case of People v. Paiz:

“Under California law, [where the issue is whether instruction on a lesser included offense was required,] a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1227; People v. Lopez (1998) 19 Cal.4th 282, 288.)

Section 191.5, subdivision (a) provides:

“Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the driving was in violation of Section 23140, 23152, or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”

Vehicle Code section 23152 provides, in relevant part:

“(a) It is unlawful for any person who is under the influence of any alcoholic beverage … to drive a vehicle.

“(b) It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.”

Vehicle Code section 23153 provides, in relevant part:

“(a) It is unlawful for any person, while under the influence of any alcoholic beverage … to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

“(b) It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.”

The accusatory pleading in this case charged that appellant violated section 191.5, subdivision (a) in that he “did unlawfully, and without malice, kill … Prado, a human being[,] while driving a vehicle in violation of Vehicle Code Sections 23140, 23152 and 23153 and said killing was the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence .…”

Appellant contends the statutory elements of Vehicle Code sections 23152 and 23153 are included within the greater offense of section 191.5, subdivision (a) under both the accusatory pleading and elements test. We agree. It appears obvious from reading the relevant code sections that, to find appellant guilty of violating section 191.5, subdivision (a), the jury first had to find that he violated Vehicle Code section 23152 or 23153. All three offenses, section 191.5, subdivision (a) and Vehicle Code sections 23152 and 23153, require proof that appellant, as the driver, was under the influence of alcohol.

In People v. Miranda (1994) 21 Cal.App.4th 1464, 1468, the court determined that

“Vehicle Code section 23153 … is necessarily included in Penal Code section 191.5. One person who injures a person while driving under the influence commits a violation of Vehicle Code section 23153; and if that person dies from that injury—whether immediately or sometime later—a violation of Penal Code section 191.5 has occurred.”

The trial court in a criminal case must, even in the absence of a request, instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. St. Martin (1970) 1 Cal.3d 524, 531.) That obligation has been held to include giving instructions “on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149; see also People v. Bunyard (1988) 45 Cal.3d 1189, 1232-1234; People v. Flannel (1979) 25 Cal.3d 668, 684 & fn. 12.) In making the determination whether to instruct on a lesser included offense, the trial court should not attempt to weigh the evidence or judge the credibility of the witnesses. (People v. Flannel, supra, at p. 684.) As a corollary, however, where there is no substantial evidence that would support a conviction of the lesser but not greater offense, the court need not instruct on the lesser included offense. (Ibid.; People v. Kaurish (1990) 52 Cal.3d 648, 696.)

Here, the evidence was that appellant was driving while under the influence of alcohol and that he had a blood-alcohol level of 0.20 percent when the accident occurred. That Prado was killed as a result of the accident is without question. If appellant was guilty at all, he was guilty of Prado’s death and not of causing “bodily injury to any person other than the driver,” as required under Vehicle Code section 23153. Thus, there is no substantial evidence that would support a conviction of the lesser (Veh. Code, § 23153) but not greater offense, and the court was not obligated to so instruct. (People v. Flannel, supra, 25 Cal.3d at p. 684.)

But this leaves the question whether the trial court was required, sua sponte, to instruct on the lesser included offense of violating Vehicle Code section 23152.

Trial counsel for appellant argued to the jury that, while the evidence was sufficient to show that appellant was intoxicated, it did not necessarily mean that he was guilty of the crime charged. Trial counsel argued that the question for the jury was “[w]ho caused the accident,” and it could very well be that appellant was not at fault. Evidence was presented, though controverted, that appellant did not cause the accident.

Under the circumstances presented here, we conclude that the trial court erred when it did not instruct on Vehicle Code section 23152 as a lesser included offense. There remains, however, the question of prejudice—a question to be judged by the Watson10 reasonable probability test. (People v. Breverman, supra, 19 Cal.4th at pp. 177-178; People v. Joiner (2000) 84 Cal.App.4th 946, 972.) Examining the evidence as a whole and, as it is appropriate to do in reference to the question of prejudice, examining its strengths and weaknesses (People v. Breverman, supra, at p. 177), we conclude that there is no reasonable probability the failure to give a lesser included offense instruction affected the outcome of the trial.

The jury concluded beyond a reasonable doubt that appellant was guilty of gross vehicular manslaughter while intoxicated. To do so, the jury had to find intoxication, gross negligence, and causation in the death of Prado. Three other theories were available to the jury: first, that appellant was guilty of vehicular manslaughter with gross negligence (§ 192, subd. (c)(1)), which would have required that the jury find gross negligence and causation; second, that appellant was guilty of vehicular manslaughter (§ 192, subd. (c)(2)), which would have required that the jury find a negligent act and causation; third, that appellant was guilty of vehicular manslaughter while intoxicated (§ 192, former subd. (c)(3)), which would have required that the jury find intoxication, a negligent act, and causation.

While each of the three offered lesser offense theories required the jury to find that appellant caused the death of Prado, it is likely that, had the jury not found appellant guilty of causing Prado’s death, it would either have found him not guilty of the charge, as instructed, or, at most, would have found him guilty of simple negligence in violation of section 192, former subdivision (c)(3). This the jury did not do. Instead, it found him grossly negligent.

No reversible error occurred, according to this court.

This unpublished case may not be cited by a San Diego DUI Lawyer or San Diego Drunk Driving Attorney .

A San Diego DUI Test Refusal can mean Consciousness of Guilt

San Diego California DUI Attorney law

San Diego California DUI Refusal

Criminal Court Jury Instructions
2130.

Refusal—Consciousness of Guilt (Veh. Code, § 23612)

California (DUI) law requires
that any driver who has been lawfully arrested
submit to a chemical test at the request of a
peace officer who has reasonable cause to believe
that the person arrested was driving under the influence
( DUI ).

If the defendant refused to submit to such a (California DUI
chemical) test after a peace officer asked (him/her) to do so and
explained the test’s nature to the defendant,
then the defendant’s conduct may show that
(he/she) was aware of (his/her) guilt.

If you conclude that the defendant refused to submit to such a test,
it is up to you to decide the meaning and importance of the refusal.

However, evidence that the defendant refused to submit to such a test
cannot prove guilt by itself.





Your San Diego DUI Attorney will explain the important issues
surrounding an alleged San Diego DUI criminal defense case.

San Diego DUI / Defense Lawyer can use Rehab to help Al Gore III's DUI Case

San Diego DUI Attorney news

Al Gore III In Rehab After San Diego DUI / Drug Charges

July 15, 2007

Former Vice President Al Gore's 24 year old son has checked into a drug rehabilitation facility after he was recently booked on four drug counts and speeding on a San Diego, California freeway.

Al Gore III was stopped for allegedly driving 100 mph, according to a police report filed by the San Diego Sheriff's Department.

The San Diego California DUI officer reportedly smelled marijuana, then allegedly found Vicodin, Xanax, Adderall, and Soma after searching Gore's vehicle.

Gore was released after his San Diego Criminal Arrest on a $20,000 bond.

A San Diego California DUI / Criminal Defense Attorney may offer proof of the rehabilitation in Mr. Gore's case.

San Diego DUI Lawyer help

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 can definitely help you with your San Diego California drunk driving case.

SAN DIEGO DUI LAWYER "EVALUATION FORM" http://www.sandiegoduilawyer.com/survey.html





San Diego DUI Lawyer Rick Mueller, a San Diego Drunk Driving / DWI Defense Attorney handling San Diego California DUI & DMV cases, shows why a San Diego DUI Lawyer will help you. http://www.SanDiegoDUILawyer.com



San Diego DUI Lawyer - San Diego Attorney Drunk Driving / San Diego DWI Lawyer can show you how to help you beat the San Diego DUI charge: http://www.SanDiegoDUIlawyer.com .




San Diego DUI Lawyer Rick Mueller is the Top-Rated San Diego County Drunk Driving, DUI & DMV Defense attorney with over 23 years of experience. Known as the "DMV Guru," Rick Mueller dedicates 100% of his law practice to aggressively defending those accused of driving under the influence of alcohol. He has successfully saved the driving privileges of many clients in the past year alone. Complete the important Free San Diego County Drunk Driving Defense Survey to find out your best strategy and to protect your driving privileges in California.



San Diego DUI Attorney Rick Mueller Background and Contact Information http://www.sandiegoduilawyer.com/about.html




San Diego DUI and DMV Penalties http://www.sandiegoduilawyer.com/penalty.html




Out of State License/Resident & Driving Record http://www.sandiegoduilawyer.com/out_of_state.html




Military Base DUI - San Diego County Federal Court - http://www.sandiegoduilawyer.com/base.html




http://www.SanDiegoDUIlawyer.com - Excellent San Diego DUI information source for San Diego county drunk driving arrest. Rights, Laws, Defenses, Penalties, DMV, Court, Military, DUI Boating, Helpful Tips and other comprehensive information. Vigorous DUI lawyer who can save your license and keep you out of jail.



Call 1-800-THE-LAW-DUI (1-800-843-5293) for a free San Diego DUI consultation

San Diego DUI Breath Tests - Reliable?

While San Diego DUI breath analysis is the most commonly used test by San Diego DUI police to establish whether or not a person was San Diego DUI, the reliability of San Diego drunk driving breath tests may be challenged.

A number of San Diego California DUI experts believe San Diego DUI breath tests, as they are administered by some San Diego County California DUI police, are inaccurate.

Scientific ability to accurately measure blood alcohol content or BAC, etc. can be questioned by your San Diego DUI Attorney.

A top San Diego Drunk Driving defense lawyer will know how to challenge the accuracy of your San Diego DUI breath test.

That is a good reason you want to make sure you hire the right San Diego DUI Attorney Specialist to represent you.

San Diego DUI Lawyer drunk driving attorney motions help win DUI cases

San Diego California DUI Motions

Before your San Diego California DUI jury trial, you may want to file some San Diego California DUI Lawyer pretrial motions to challenge the admissibility of the prosecutor's San Diego California drunk driving evidence.

A favorable San Diego DUI Attorney ruling can result in San Diego DUI evidence being excluded from your San Diego DUI trial, including evidence of a San Diego DUI blood or San Diego DUI breath test, the results of some or all of the San Diego California drunk driving field sobriety tests, or any possible harmful DUI statements made.

Successful San Diego California drunk driving pre-trial motions by your San Diego California DUI lawyer often compel the San Diego DUI prosecutor to make an advantageous San Diego DUI plea bargain offer, or can result in the dismissal of the San Diego California DUI charge based on an unconstitutional San Diego California DUI stop.

Your San Diego DUI Lawyer will make the call what to do.

San Diego California DUI possible penalties

San Diego California Lawyer DUI Penalties / Punishment:

In San Diego California, conviction for the offense of DUI (Driving Under the Influence) carries stiff penalties & punishment.

The San Diego California DUI penalties & punishments may be based on a non-enhanced San Diego DUI (Driving Under the Influence) conviction.

If there are any aggravating factors, the penalties are enhanced & punishments are significantly increased. Those factors include:

• excessive speeding (mandatory consecutive 60 days custody) if 30 miles or more over the speed limit on the freeway, or generally 20 miles or more over the speed limit on other (non-freeway) roads
• refusal of test
• a child in the car (under 14)
• driving on a suspended or restricted license
• accidents
• high blood alcohol content (over .15)
• other instances including bad driving, attitude &/or other problems.

http://www.sandiegoduilawyer.com/penalty.html contains an outline of penalties & punishment for a possible San Diego DUI conviction. These include minimal DUI penalties & punishments the San Diego DUI court can impose. The maximum jail for a non-enhanced first-time San Diego is 6 months. Your ultimate penalties and punishments vary, depending on the San Diego DUI Lawyer employed to advocate on your behalf.

Punishment increases for a multiple San Diego DUI offender. The period for prior DUI offenses is 10 years. Regardless of when a prior DUI offense occurred, and what the DUI law was at the time, if the DUI was within 10 years, then it counts as a prior DUI (increasing DUI penalties).

Do you need a San Diego California DUI Lawyer Specialist?

You are aware of the need to hire an experienced San Diego California Drunk Driving Lawyer Specialist with a proven San Diego California DUI Lawyer track record.

The San Diego DUI police may have violated your rights or committed some error or mistakes which may result in the San Diego California DUI charges against you being reduced or even dismissed.

It is therefore important that you contact a San Diego DUI Lawyer as soon as possible after your San Diego California Drunk Driving arrest.

Talking on cell phone as dangerous as a San Diego California DUI

On July 1, 2008, it will be illegal to talk on a hand-held cell phone and drive a car in California. The bill was sponsored by state Senator Joe Simitian of Palo Alto. This is one of the legal responses to the hazard of distracted drivers on our nation's roads and highways.

Studies show that talking on a cell phone, while you drive, is about as dangerous as a San Diego California DUI or driving drunk in San Diego California.

Talking on a cell phone may get you struck by lightning. http://www.struckbylightning.org .

Officials in California say that most accidents result from drivers being distracted. Legislatures have passed laws against use of cell phones while driving. Text messaging while driving has also been the target of state prohibitions.

Senator Simitian's cell phone bill, SB 1613, was signed by the Governor in September and will go into effect on July 1, 2008. The senator's new legislation, SB 33, would forbid anyone under the age of 18 from using a cell phone while driving.

San Diego DUI Lawyer enters not guilty to San Diego DUI charge against Lakers Owner Jerry Buss

Lakers owner Buss pleads not guilty to San Diego DUI /drunk driving charges

July 10, 2007

VISTA, California

Los Angeles Lakers owner Jerry Buss pleaded not guilty Tuesday to two misdemeanor counts of San Diego California drunk driving / DUI / driving under the influence.

Per a criminal complaint filed by the district attorney's office, Buss was allegedly DUI or under the influence of an unspecified drug but refused to take a chemical test. He was arrested after failing a San Diego California Drunk Driving field sobriety test.

Buss was charged with one count each of San Diego California DUI -driving under the influence of alcohol and/or drugs and San Diego California driving with a blood-alcohol level of .08 percent or greater.

Buss, who was not required to be in court, entered his plea through his San Diego California DUI Lawyer.

His San Diego California DUI attorney declined to comment.

Buss was near a home he owns in north San Diego County when he was stopped for a San Diego DUI .

San Diego California DUI legal definition of "under the influence"

Vehicle Code Section 23152(a) is a charge of driving under the influence of alcohol and/or drugs.

Here is the San Diego DUI legal definition for "under the influence":

A person is under the influence of intoxicating liquor when as a result of drinking such liquor his (or her) physical and mental abilities are impaired so that he (or she) no longer has the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

San Diego DUI Lawyers deal with this San Diego DUI jury instruction.

Complete San Diego DMV information after a San Diego DUI

San Diego DMV / DUI Hearing

Presented by San Diego DUI Lawyer

July 9, 2007

A San Diego DUI / DMV hearing for a license suspension is similar a mini-DUI trial without a jury, but with much different San Diego DMV rules, San Diego DMV laws and San Diego DMV procedures. The San Diego DUI / DMV hearing is presided over by a Driver Safety Officer (DMV hearing officer) rather than a real judge, an employee of the DMV not trained in law who acts as both prosecutor and judge. As unfair as it is, she or he can legally object to your evidence, rule on her or his own objection, dually engage your San Diego DUI / DMV lawyer, and admit or not admit either party's evidence.


The San Diego Driver Safety Officer offers evidence in the form of documents and/or witnesses. The Driver Safety Officer offers the San Diego drunk driving / DUI police report, DMV records, San Diego DUI alcohol reports and the important San Diego DUI officer's sworn statement entitled a "DS 367." With no Fifth Amendment right at the hearing, your San Diego DUI / DMV attorney usually will not want you to be present at the hearing since the Driver Safety Officer can call you as a witness and force you to testify against yourself if you ill-advisedly appear.


The San Diego DMV Driver Safety Officer's decision will usually be mailed a few days or even weeks after the hearing. A San Diego DMV / DMV suspension can be set aside or sustained. If the San Diego DMV suspension is sustained, the decision can be appealed to the DMV in Sacramento and/or to the San Diego Superior court by filing a San Diego DMV petition for writ of mandamus.



A San Diego DUI lawyer's defenses at an APS hearing are specialized and technical, more so than in criminal court. Frequent San Diego DUI / DMV proof problems - as well as legal, procedural and bureaucratic obstacles - are possible grounds for setting aside the suspension.



Because of the peculiar nature of San Diego DUI / DMV hearings and the absence of an independent San Diego DUI judge to offer some protection, you are strongly advised not to try to represent yourself. Because these are not San Diego DUI criminal proceedings, San Diego County public defenders are unavailable.



Your San Diego DUI / DMV lawyer has just 10 CALENDAR DAYS after the DUI arrest to call the San Diego DMV Driver Safety Office to timely demand a hearing. You waive your right to a hearing after the 10 day deadline is up.


If your San Diego DUI / DMV lawyer has not been retained within 10 days of the arrest, you should contact the local Driver's Safety Office yourself, request a brief extension so you can get a San Diego DUI / DMV Lawyer.

San Diego Drunk Driving Lawyer news: Alcohol Addiction - Do AA 's help?

Do San Diego drunk drivers include Alcoholics?

Can a San Diego DUI affect one's addiction?

Should San Diego DUI Lawyers recommend AA meetings?

In 1950, Alcoholism was a disease rather than a moral failing according to the American Medical Association (AMA). But while it had all the hallmarks of other diseases, including specific symptoms and a predictable course, leading to disability or even death, alcoholism was different. Its physical basis was a complete mystery--and since nobody forced alcoholics to drink, it was still seen, no matter what the AMA said, as somehow voluntary. Treatment consisted mostly of talk therapy, maybe some vitamins and usually a strong recommendation to join Alcoholics Anonymous. Although it's a totally nonprofessional organization, founded in 1935 by an ex-drunk and an active drinker, AA has managed to get millions of people off the bottle, using group support and a program of accumulated folk wisdom.
While AA is astonishingly effective for some people, it doesn't work for everyone; studies suggest it succeeds about 20% of the time, and other forms of treatment, including various types of behavioral therapy, do no better. The rate is much the same with drug addiction, which experts see as the same disorder triggered by a different chemical. "The sad part is that if you look at where addiction treatment was 10 years ago, it hasn't gotten much better," says Dr. Martin Paulus, a professor of psychiatry at the University of California at San Diego. "You have a better chance to do well after many types of cancer than you have of recovering from methamphetamine dependence."
That could all be about to change. During those same 10 years, researchers have made extraordinary progress in understanding the physical basis of addiction. They know now, for example, that the 20% success rate can shoot up to 40% if treatment is ongoing (very much the AA model, which is most effective when members continue to attend meetings long after their last drink). Armed with an array of increasingly sophisticated technology, including fMRIs and PET scans, investigators have begun to figure out exactly what goes wrong in the brain of an addict--which neurotransmitting chemicals are out of balance and what regions of the brain are affected. They are developing a more detailed understanding of how deeply and completely addiction can affect the brain, by hijacking memory-making processes and by exploiting emotions. Using that knowledge, they've begun to design new drugs that are showing promise in cutting off the craving that drives an addict irresistibly toward relapse--the greatest risk facing even the most dedicated abstainer.
"Addictions," says Joseph Frascella, director of the division of clinical neuroscience at the National Institute on Drug Abuse (NIDA), "are repetitive behaviors in the face of negative consequences, the desire to continue something you know is bad for you."
Addiction is such a harmful behavior, in fact, that evolution should have long ago weeded it out of the population: if it's hard to drive safely under the influence, imagine trying to run from a saber-toothed tiger or catch a squirrel for lunch. And yet, says Dr. Nora Volkow, director of NIDA and a pioneer in the use of imaging to understand addiction, "the use of drugs has been recorded since the beginning of civilization. Humans in my view will always want to experiment with things to make them feel good."
That's because drugs of abuse co-opt the very brain functions that allowed our distant ancestors to survive in a hostile world. Our minds are programmed to pay extra attention to what neurologists call salience--that is, special relevance. Threats, for example, are highly salient, which is why we instinctively try to get away from them. But so are food and sex because they help the individual and the species survive. Drugs of abuse capitalize on this ready-made programming. When exposed to drugs, our memory systems, reward circuits, decision-making skills and conditioning kick in--salience in overdrive--to create an all consuming pattern of uncontrollable craving. "Some people have a genetic predisposition to addiction," says Volkow. "But because it involves these basic brain functions, everyone will become an addict if sufficiently exposed to drugs or alcohol."

Alcoholics arrested for a San Diego DUI sometimes treat their San Diego alcohol addiction after arrested for a San Diego Drunk Driving offense and perhaps after retaining a San Diego DUI Lawyer .

For more information visit http://www.time.com

San Diego DUI Checkpoints Tonight

- San Diego,CA,USA
SAN DIEGO -- California Highway Patrol and La Mesa Police officers
will set up a San Diego DUI / drunken driver checkpoint Saturday night on Fletcher Parkway and elsewhere.

How to avoid a DUI if you're planning a 4th of July party

Minimizing Your Risk of Being Convicted of San Diego DUI or Drunk Driving in San Diego

When questioned for San Diego DUI before arrest, you are not in custody for the purposes of Miranda warnings. If you politely refuse to answer any of the cop's questions concerning the San Diego DUI investigation, either before or after the arrest, then there won't be any statements that can be used against you in court.
Field Sobriety Tests are completely voluntary. If you perform them, you may be arrested anyway. It may be better not to give the cop evidence that will be used against you in court. You can politely refuse to do the Field Sobriety Exercises.
Refuse to take the preliminary alcohol screening test. If you are older than 21, the test is voluntary and you have the right to refuse this type of breath test.
When given a choice of blood, breath or urine test after arrest, choose a urine test if it is available. It is the most unreliable; however, the officer may only offer a blood or breath test.
If no urine test is available, choose a breath test. The breath machines are not 100% accurate and there are many possibilities for error. See San Diego California DUI & Drunk Driving Defenses to San Diego County Breath Test at http://www.sandiegoduilawyer.com .

Contact a friend or relative from jail as soon as possible so they can hear you speak and note your state of sobriety.
Always be polite and respectful to the police officers. How you are perceived by a jury is extremely critical.
Some jurisdictions video the arrest, breath testing and/or booking process. Always be on your best behavior.
Make a detailed list of all the events before being stopped up to and including being released from custody.
Retain an experienced San Diego DUI/DMV defense attorney to represent you. Only an experienced SanDiego DUI/DMV defense attorney is able to spot your favorable issues and present them to prosecutor, judge , jury, or San Diego DMV hearing officer.

Remember, the best way to avoid a San Diego DUI conviction or San Diego DMV suspension is to not drink and drive. Purchasing a Portable Breath Tester will also assist you in determining your alcohol level before you drive. Unfortunately, the way our laws are going, even if you've had only a small amount of alcohol and you are not impaired, as long as you smell like alcohol your chances of being arrested are very high. However, being arrested for San Diego DUI does not automatically result in a conviction or loss of your driver's license. Protect your rights and save your license. The above Top 10 tips are designed to provide accurate and authoritative information. It is not designed to render legal opinions.

Don't roll over in your San Diego California DUI case

SAN DIEGO DUI Attorney news

July 3, 2007

A vehicle rolled over several times and crashed over the side of the Escondido (15) Freeway in Tierrasanta, ejecting the driver, a San Diego California drunk driving suspect who suffered serious injuries, authorities said.

It was a solo-vehicle wreck in the northbound lanes between Aero Drive and Balboa Avenue, shortly before 4 a.m.

A person who was believed to be the sole occupant was thrown from the vehicle and found in some bushes, authorities said, adding the victim was transported to Sharp Memorial Hospital for treatment of serious injuries.

CHP Investigators believe the driver was intoxicated or DUI at the time of the accident.

Why hire a San Diego California DUI Lawyer?

Why even hire a San Diego DUI attorney?

If you do not, you will guarantee the result.

Defending yourself in the San Diego DUI lawyer criminal justice system will be impossible and never successful.

San Diego Drunk Driving is a complex field of law. The San Diego politics and the odds are stacked against you.

Here's what a San Diego DUI / drunk driving charge may bring you later: a jail sentence; a substantial fine; attendance in alcohol abuse classes; suspension, revocation or restriction of your driver's license; and/or many other substantial San Diego drunk driving penalties.

Pleading guilty to a San Diego DUI will result in your insurance premiums doubling and even tripling over the next several years.

The San Diego DUI fines are not as financially draining as the rise in California DUI escalated insurance costs.

A San Diego DUI arrest arrest triggers two separate legal actions against you: the immediate DMV action, and the criminal proceedings.

With skilled San Diego DUI Lawyer help, you may get your San Diego DUI / Drunk Driving charge dropped or reduced without the expense of a California DUI jury trial. http://www.SanDiegoDUIlawyer.com

San Diego California DUI arrest - Court Options

What are your options in Court after a San Diego California DUI arrest?

Unless you are willing to accept the maximum DUI penalties, you should hire a San Diego California DUI Specialist.

If you go to court, ask the judge for time to find a San Diego California attorney of your choice.

A San Diego California DUI Specialist can help you with various San Diego California DUI / San Diego drunk driving defense options, including vigorous pursuit of case dismissal, favorable plea bargain negotiation, and/or a jury trial in court.