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“What is a gas chromatogram?”

Seems like a simple question, but it gets to the heart of who’s out there purporting to be a DUI Defense Attorney. Whether the person knows the answer shows whether DUI defense is what they do – or just another in a long list of things they advertise for.

The answer is:

A chromatogram is a graphic representation of the test that’s done by the cops to determine the accused’s blood alcohol content at the time of the test.

If the person who wants to be your DUI Defense Lawyer can’t answer the question, or says it doesn’t matter, you need to thank that person for their time and leave.

I was recently in Court fighting to get the Chromatograms for my client and I was the only one in the room who knew what a Chromatogram was! I had to explain what Chromatograms were to the Judge AND the Prosecutor. Other Lawyers were taking notes about chromatograms – because they didn’t know.

Judges and Prosecutors ask all the time: “Why do you need to see that?” because most other lawyers aren’t asking to see these essential test results.

Blood tests can be fought – ALL DUIs can be fought – and knowing what chromatography machines are and exactly how they work, is essential to that fight. Gas chromatography machines are NOT infallible. If you know where to look, you can find that the machine or the blood sample are probably contaminated.

Even if your DUI doesn’t involve a blood test, if it’s a refusal or a breath test, not knowing the answer to this question discloses that the person you’ve asked doesn’t really know what he or she is doing. Chances are they’re just saying what you want to hear, in order to get hired and they will just be going through the motions during your case. Chances are no matter how great what they say sounds (when they’re trying to get hired) you will end up pleading guilty to a DUI.

If your case does involve blood testing, the Lawyer who can’t answer your question will probably end up telling you, “It’s a blood test, there’s no way to fight that.” Without even looking at the chromatograms!

You’re going to end up spending thousands of dollars, even if you hire a cheap “Do Nothing” Attorney. It’s important to your future; you should know what to ask and know what you’re getting. Even if you settle for the guy who doesn’t know what a chromatogram is, you should know your Lawyer’s limitations.

To fight your DUI or if you hav eany questions, call 213-479-5322 or fill out the easy form at the right.

Woman getting CA drivers license

Finally we can all get a CA Drivers License!

The California Legislature has ordered the DMV to provide licenses to people who reside in California, even if you don’t have proof of citizenship.

The big picture is if you are a non-citizen, you can now get a driver’s license and avoid fees and convictions for driving without a license.

 
Let’s take a closer look at the details:
Will this alert other agencies (like the Immigration and Customs Enforcement) to my status?
No, the bill specifies that the information collected is not public record and cannot be disclosed to any other agency by the DMV. The bill also makes it a crime to discriminate against someone based on the license they hold. A non-citizens license would say DP instead of DL.
Can I get a Commercial Provisional License if I am a Non-Citizen?
No, the bill applies to cars and motorcycles, but doesn’t apply to commercial licenses. You still need proof of citizenship to obtain a commercial driver’s license.
Do I need a Social Security number?
No, the law previously required that the applicant for a license have a Social Security number but the new law allows the applicant to fill out a declaration attesting that they are ineligible for a Social Security number. This declaration would not be public.
What’s the process like?
You have to complete an application, pay a fee, pass the vision test and pass the written and driving tests. The applicant would still have to submit identification.Here’s the list of ID’s accepted.
What if I have something on my Criminal or Driving record?
Like anyone applying for a license, your record would have to be clean. If you have criminal offenses, warrants for charges of unlicensed driver, DUI or other driving offenses you have to clean up your record before you can obtain a license.
I can help with that! Clearing up your record requires setting and appearing at court dates, negotiating the recall of bench warrants and resolving traffic and criminal cases. To get started, call me at 213-479-5322 or email me at [email protected]
 
If you’re record is clean (and I can help you find out if it isn’t), what’s your first step?
Set up an appointment with the DMV right away. They expect to be crushed by the immediate demand.
Cynic Alert: The State of California estimates that there are 1.4 Million unlicensed drivers. Getting them licensed would require each of them to pay the license fees. This is a huge cash grab for a fiscally challenged state.
How will this affect safety?
Since there is NO reason not to study and get your license, safety should improve.
Insurance Costs?
There could be some insurance issues, like documenting your prior driving history. John D. MacDonald Insurance (www.jmac.com) can help with obtaining insurance and is able to obtain a Good Driver Discount based on your driving record in another country.
Will it reduce insurance and licensing scams?
The statute removes the need to drive without a license and so should reduce the types of scams that prey on Non-Citizens.

Supermarketjpeg

Walmart Partners Up With Lawyers In a Race To the Bottom In Legal Representation
Walmart has earned a reputation as the retail leader in the race to the economic bottom. For years they’ve negotiated the lowest prices for the goods they sell and for the services of those who toil at Walmart. A staggering number of Walmart employees and their families live below the poverty line and require public assistance to get by.
Walmart is able to do this because they have such huge bargaining power. The mega-chain is able to negotiate the lowest prices for goods because they buy in such high volume. Walmart is able to pay its employees low low wages because they are often the only employer in the area.
So now Walmart has teamed up with Legalzoom to provide Wills and Trust services and Axxess Law to provide onsite attorneys at their stores. Given their history in other areas of purchasing goods and services, I’m sure that they’ve negotiated really great deals for new and struggling lawyers to provide low cost legal services.
But is this in your best interest?
No. Choosing a lawyer is not buying a box of cornflakes. A lawyer that charges low, low fees has to take many, many cases and can’t give your case the attention it needs. A lawyer that must provide a wide variety of legal services (personal injury, contracts, bankruptcy, et c.) can’t devote his time to being outstanding at the area of law you need.
So you may choose to shop at Walmart for groceries because of price or variety, but it is not the place to shop for a DUI or criminal lawyer. Your LIBERTY is at stake!
A good defense is never cheap and a cheap defense is never good

NBC News recently reported that CHP officers make game of stealing racy photos. CHP Officer Harrington of the Dublin area CHP was arrested recently for stealing photos from the cell phones of women he arrested. He would search an arrestee’s phone and then text the pictures to his friends – also members of the California Highway Patrol.

He was charged with two Counts of Computer Data Theft, a Felony. The two Counts stem from two separate instances when he sent the private photos from the arrestee’s phone to his cop buddies. The article describes the conduct as part of a game among the officers.

Officer Harrington says essentially he’s sorry that he got caught and fired and hopes he can move on with his life.
At least one of the cases where Martinez was arresting officer has been dismissed because of the charges against him.

At least one of my clients who was stopped by the CHP says that they took their phone and looked through it. If this is in fact part of a larger game among CHP officers, it has probably happened more than twice.

If you’ve been stopped or arrested by the CHP or any law enforcement agency, you should search your phone to see if there are any texts to numbers you don’t recognize. If you’ve been the victim of an invasion of privacy by CHP you can make a complaint here. Complaint procedures against local law enforcement should be on their websites.

If you need help because your privacy has been invaded by the CHP, call me at (213) 479-5322 to discuss your case more fully.

Law Books and Gavel for Prop 47

This is an exciting development for people convicted of certain felonies.( I list them below.) Prop 47 allows reduction of felonies to misdemeanors. One of the most important things about this Proposition is it applies retroactively. This means no matter when you were convicted you can get your felony reduced to a misdemeanor. As you know, this effects your employment, voting rights, gun ownership and more. In addition, once you get your conviction reduced to a misdemeanor, you can have it expunged.

Expunged means it shows up on your record as a “dismissal after conviction”. So when asked, you can answer “No, I do not have any misdemeanor or felony convictions.” about the conviction. And you can do this for all felonies that fall under the list below.

But it doesn’t happen automatically, you have to take steps to get obtain your reduction. This is a process some people can do themselves but if you have any questions, I am here to help. I can offer advice, file your reduction or help you decide whether you need an attorney.

Here are the Felonies affected:

– Health & Safety Code Sections 11350(a) (Possession of Cocaine/Heroin, etc.), 11357(a) (Possession of Concentrated Cannabis) and 11377(a) (Possession of Methamphetamines).
– Penal Code Section 459.5 (Shoplifting where the person entered a business with intent to commit larceny during business hours and took property worth less than $950.) Unless also charged with petty theft or 2nd Degree Burglary.
– Penal Code Section 473 (Forgery (PC 470(a), 470(d), 475(a), 475(b), 475(c), 476) where the value of the check is less than $950.[DA cannot aggregate]) Unless also convicted of identity theft (PC 530.5).
– Penal Code Section 476a (Making bad checks where the value of the check is less than $950.[DA can aggregate]) Unless 3 or more prior convictions for PC 470, 475, 476 or 476a.
– Penal Code Section 490.2 (Grand theft (PC 487(b), 487(c), 487(d)(1), 487(d)(2), 487a, 484e(a), 484e(b), 484e(d)) where the value of the property is less than $950.)
– Penal Code Section 496a (Receipt of Stolen Property Valued at $950 or less).
– Penal Code 666/484 (Petty Theft with a Prior). Unless also suffered a prior felony conviction for theft or PC 368(d) or (e).

Anyone convicted of these offenses is eligible to have their sentence retroactively reduced from felony to misdemeanor UNLESS they have either a prior strike offense or are subject to PC 290 registration.

In Los Angeles, the process to obtain your reduction is as follows:

1. Fill out the form here.
2. Serve a copy on the District Attorney. Their office can be found in the same court where you go for Step 3.
3. File in Court where your case took place.
4. The District Attorney fills out their portion of the form and submits it to the Court.
5. The Court will then either (1) grant your request or (2) set the matter for hearing.

Remember, If you have any questions with obtaining relief under Proposition 47 or need assistance in filing your Prop 47 request for reduction you can contact me at (213) 479-5322.

Man being interrogated at DUI StopsAT DUI STOPS, THE FIFTH AMENDMENT AND MIRANDA REQUIRE YOU TO INVOKE UNEQUIVICALLY.

First off, the cops failure to read you your rights will not get a DUI case dismissed.

At DUI stops the fifth amendment and Miranda will possibly get your statements suppressed, if it is determined that you were in custody at the time the statements were made. This is unlikely in a DUI because of a US Supreme Court case called Berkemer v McCarty.

Berkemer v. McCarthy says that the questions a cop asks after a DUI stop are not part of a Custodial Interrogation.

The Berkemer case involved a stop where the cop asked 1 question: are you under the influence of anything?

The guy answered yes.

He got arrested.

The holding has been expanded by cops and prosecutors to encompass the 27-30 DUI Pre-Field Sobriety Test questions.  In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The Court held the subject was not under the belief that he couldn’t leave. The Court further held that in this case, the questions were not intrusive.

If you are arrested and questioned, you must invoke your right against self-incrimination unequivocally. This means anything other than “I invoke my right against self-incrimination,” will not be treated as an invocation. So when arrested and questioned say, “I invoke my right against self-incrimination.”

The Fifth Amendment does not relieve you of your obligation to take the post-arrest DUI chemical tests.

If you are stopped and questioned pre-arrest, the Berkemer decision says that you’re not under arrest so your Fifth Amendment right doesn’t apply.  I counsel that you should tell the cop, “Officer, am I free to go? If not, then I choose not to answer your questions.”  Any answers you give the cop will be used to build a case against you.  They are not trying to learn information so they can release you.  They are trying to get information to get a conviction.

The recent California Supreme Court case of People v Tom shows the importance of unequivocally invoking your Fifth Amendment right not to answer cops’ questions. In this case, there was a traffic fatality, the Defendant left the scene, later the cops came to his house.  They found him drinking.  They arrested him and had him sitting around for three hours. During that time he never inquired about the person who was killed. Of course, none of the cops informed him why he was arrested or that there was a fatality.  The Prosecutor commented on this in his closing argument.  This is usually Griffin Error.

The Griffin Law means a Prosecutor cannot comment on the Defendant’s post-arrest silence. But the Tom court held that because the Defendant did not unequivocally invoke his right against Self-Incrimination the Prosecutor could comment about his silence

Merely remaining silent after being arrested will not be enough to invoke your right against Self-Incrimination.  It cannot be said often enough, at DUI stops the Fifth Amendment and Miranda require that you unequivocally invoke your right against self-incrimination.

If you have an issue with the Fifth Amendment and Miranda please call me at 213-479-5322 to discuss this more fully.

THE CHALLENGES OF DEFENDING SOMEONE ACCUSED OF DUI

AND DOING IT RIGHT

Here is the DUI interview I did with DUI attorney Mark Rosenfeld, Mr. DUI LA.  It includes us talking about the challenges of DUI Defense and going through a recent DUI trial victory of mine. In the interview Mark and I discuss the common misconception that DUI cases are unwinnable. I describe a recent DUI trial victory to illustrate the point that DUI Cases are winnable with the right attorney.  This is video is a good example of the issues in a DUI case as the case study involves, field sobriety tests, breath testing, blood testing, and issues of time of driving. After all, the State must prove that the accused driver was impaired and/or over .08% blood alcohol content at the time of driving. In this case, the defendant had to fight because of onerous immigration consequences related to travel to Canada. He was tested with three separate machines, the preliminary alcohol screening device, the Datamaster breath testing device and hi blood was analyzed by gas chromatagram.  In the DUI interview I discuss how all three of the tests were flawed. If, after watching this DUI interview, you are ready to fight and win your DUI or you have questions about whether your DUI can be won, please call me at (213) 479-5322 to set up an appointment.

Holiday Weekend DUI Checkpoints

Be safe out there.  Don’t let the cops ruin your holiday. Avoid these LA Area weekend DUI checkpoints:

Tonight (7/3): Hollywood Area saturation patrols from 4 pm to midnight. A saturation patrol means lots of cops patrolling the streets looking for people exhibiting ‘clues’ of driving while impaired.

Tonight: DUI Checkpoint in Koreatown at Vermont and 5th Street from 8 pm to 2 am. The checkpoints aren’t just looking for drinking drivers, they are also looking for people with suspended or expired licenses or traffic/criminal warrants. So if you have a traffic warrant, you want to avoid the roadblocks.

Tonight: DUI Checkpoint Downtown on Figueroa at 9th St. from 8 pm to 2 am.

Tonight: DUI Checkpoint in North Hollywood at Laurel Canyon Blvd. and Oxnard St. from 8 pm to 2 am.

Saturday (7/5): DUI Checkpoint in South LA at Western Ave. and Martin Luther King Jr. Blvd. from 6 pm to midnight.

Saturday: DUI Checkpoint in Hollywood at Hollywood Blvd. and Argyle Ave. from 8 pm to 2 am.

Sunday (7/6): DUI Saturation patrols in downtown LA from 4 pm to midnight.

Sunday: DUI saturation patrols out by San Fernando in the valley from 5 pm to midnight.

From 6 pm tonight until 11:59 pm tomorrow AAA will be offering free rides, at least the first seven miles. More info at  1-800-400-4AAA.

You can read my article on weekend DUI Checkpoints, here.

You can read my article on what to do when stopped at a weekend DUI Checkpoint, here.

You can read my article about drug testing at weekend DUI Checkpoints, here.

If you have any questions about DUI checkpoints, what to do or what happens if you’ve been stopped, call me at (213) 479-5322.  If you have an opinion or know of a different checkpoint, leave a comment. Stay up to date on checkpoint locations with Mr. Checkpoint.

Blood test or BreathalyzerBlood Test or Breathalyzer: Which Test Makes It Easier To Fight Your DUI?

I used to say that it didn’t matter which test you took, blood or breath, because both of the tests were subject to attacks based on scientific problems with the tests themselves.  As a result of the recent decision of the California Supreme Court in People v. Vangelder, I have changed my recommendation.  I now recommend that people who have been arrested for DUI choose a blood test as their implied consent test.

The reason is that a lot of the problem with breath testing is that it doesn’t directly measure the amount of alcohol in your blood. Alcohol in your breath does not affect your ability to drive, either physically or mentally. Only alcohol in your blood does. If you are absorbing (which can happen for up to 6 hours after drinking) the amount of alcohol in your breath is much higher than the amount of alcohol in your blood.

The Vangelder decision has done away with most attacks on breath.

The California Supreme Court, in a decision that flies in the face of science and due process, has said that when the legislature wrote the DUI law all of the problems with breath testing were known and the Court must assume the legislature knew about the problems when they wrote the law the way they did. The Court also said since the machines used to test breath in California are on the Federal approved products list, the problems inherent in their design are off-limits for attack. The problem is that there is no requirement that products on the list be scientifically tested.

Still, the Court left open an avenue of attack, but it’s hard to use because you need the right expert to testify.  The Court has said that you can attack the specific machine when it was not used properly.   When dealing with a breath test, a proper defense has to be carefully laid and it is much easier to attack the fermentation that occurs in blood taken by cops.

The method by which blood is collected and measured is discussed in my article How Blood Testing Works.

The fermentation problem is discussed in my article Fermentation: The Big Problem With Blood Tests.

The problem with breath testing is discussed further in my article Breath Test Science in DUIs?

If you have any questions about whether to take a blood or breath test at all,  how to defend against them, which test to take or DUI in general:

Call me at (213) 479-5322.  If you have an opinion, please leave a comment.

Problems With the CA DUI Blood Test: Fermentation and Contamination.

The first problem with blood testing for alcohol is that it’s impossible to tell how much alcohol was present at the time of the blood draw and how much alcohol was created by later fermentation of the sugars in blood by microorganisms. In other words, the microorganisms naturally present in the blood begin to produce alcohol in the sample.

Chemical Model of DUI Blood Test Fermentation

Chemical Model of DUI Blood Test Fermentation

What happens while the blood is stored is that the glucose (sugar) naturally occurring in the blood is converted by microorganisms (Candid Albicans and Saccharomyces Ellipsoideus, among others), through the process of fermentation, to alcohol.  Fermentation is a fancy name for eating.  These microorganisms eat the sugar, remove energy from the sugar and leave carbon dioxide and alcohol as waste products. Studies show that over .20% BAC can be produced in improperly stored samples.

When the blood is drawn, if it is not done by accepted medical practices, the sample can be contaminated.  Simply using a non-alcohol sterilizing agent on the area where the blood is drawn is not enough to prevent contamination.  Improperly sterilizing the area can cause contamination.

Even if the area of the blood draw is properly sterilized, microorganisms present in the blood can cause  fermentation.

A preservative/anti-coagulant is supposedly added to blood drawn by the cops, but no lab in California tests for the presence of preservative/anti-coagulant.  So we never know if it was present in the proper amount or if it was properly distributed in the sample. In fact, breweries add the preservative supposedly used by law enforcement to their beer to ensure that only the right microorganism ferments their beer.

Once collected, the sample is supposed to be stored at or near freezing (32 F) and the test is supposed to be performed with 7 days to minimize fermentation. This is rarely, if ever, done.The sample is usually stored for 4 weeks, unrefrigerated.

Another problem is that the sample can never be proven by the State to contain only alcohol present before the blood was taken from the body.  When the chromatograms of the blood tests are reviewed it is often shown that acetaldehyde is present.  Acetaldehyde is a precursor to alcohol produced in the microorganism fermentation process  after the blood is taken.

In addition to the fermentation that takes place post-draw, there can also be further contamination that can be seen in the peaks in chromatograms.  A proper peak is symmetrical and shows only alcohol.  An improper peak is broad  or has a front or tail that is not symetrical. An improper peak is evidence of contamination in the sample.  It means that there is more than one volatile organic compound  in the tube at the same time and not only alcohol.  So the test reads higher in alcohol than it really is.That means that the State can never prove what the BAC is because the amount that is coming out that is alcohol can never be determined.

Read more about How Blood Testing Works.

Why Blood Testing is now the implied consent test that I recommend is discussed in my article ” Blood Test or Breathalyzer? Which test should I take?”

If you have questions about blood tests, their problems, which test to take or DUI in general:

We’re here to fight for you. Free Consultation. Call me at (213) 479-5322.

If you have an opinion, please leave a comment.

 

 


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