OUR FIRM HELPS CLIENT CIGAR LOUNGE OWNERS WIN RIGHT TO SMOKE INSIDE THEIR BUSINESSES

February 10, 2009

LONG BEACH OKS SMOKING IN SHOPS

Los Angeles, February 4, 2009 – It was almost 11 p.m. in the City Council chamber in Long Beach, California, six hours into the City Council’s weekly meeting and more than an hour after the debate started on Agenda Item 26, a modest revision of the city’s anti-smoking law passed in 1994 to allow smoking of tobacco products in “smoking lounges,” more or less the same thing as cigar shops.

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http://www.cigarcyclopedia.com/webapp/content/view/1357/58/

How To Avoid A DUI or Drunken Driving Conviction, Particularly If You Are Innocent

December 24, 2008

By Attorney Mike Brewer

 

Mike Brewer is a former prosecutor and leader of The Brewer Law Firm, based in Orange County, California. He is author of DUI strategy for Thomson-West publications series Inside the Minds of Leading Lawyers. For more information on DUI cases, go to http://california-criminal-dui-lawyer.com/

 

PLEASE DRINK ALCOHOL BEVERAGES RESPONSIBLY. THE PURPOSE OF THIS ARTICLE IS NOT TO CONDONE OR ENCOURAGE DRUNKEN DRIVING, DOES NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP WITH THE READER, OR INTEND TO PROVIDE LEGAL COUNSEL. IT IS MERELY INTENDED AS AN INFORMATIVE OVERVIEW OF CALIFORNIA DRUNKEN DRIVING ISSUES. CONSULT WITH AN EXPERIENCED DRUNK DRIVING ATTORNEY FOR SPECIFIC CASE ADVICE.

 

As an attorney whose practice focuses on representing professionals, they often ask me what test they should take if detained for a drunk driving investigation. This occurs even more frequently during the holidays. There is no easy answer. It depends on the facts in the individual case. Breath is better in some cases, blood better in others. It depends on the blood alcohol level and the drinking pattern. However, here is a summary of the issues, and the best answers for most cases. It is weighted in favor of avoiding unjust convictions of people who have been drinking, but are still below the legal limit.

 

HERE’S THE SUMMARY – THE FULL ARTICLE FOLLOWS

 

QUESTIONS ABOUT DRINKING HISTORY: DECLINE

 

Officers who contact you at night, particularly on weekends or on holidays, will often first ask you whether you have consumed alcohol. If you say “yes”, they will then move into a drunk driving investigation. You will also be asked a series of questions about your drinking history, and will later be held in court to your inaccurate estimates. Deal with the officer politely and calmly, as you should at all times, even if they try to provoke you, but do not answer these questions. 

 

FIELD “SOBRIETY” TESTS: DECLINE

 

So-called field sobriety tests are actually coordination tests, very difficult except for young athletes and those who have practiced them often. They are designed for failure, and designed to trip you up. You put yourself at the mercy of an unknown officer’s subjective opinion. You cannot pass these tests. Do not do them, in any case.

 

HAND-HELD BREATH TESTS: DECLINE

 

All breath testing is flawed and inaccurate. The hand-held devices used in the field are particularly unreliable, inaccurate, and may give entirely false readings. They also mistake other substances for alcohol. The advantage to these devices is that you can avoid arrest with a good result, and be on your way. The danger, however, is that a false reading can result in you not only being arrested, but facing a wrongful conviction. My advice is that you do not submit to them. The only exception to my rule is that, if you are less than 21 years of age, you are required to take this test, or lose your license for 1 year. Otherwise, if you are 21 or older, do not submit to them.

 

BLOOD OR BREATH EVIDENTIARY TEST: BLOOD (ON BALANCE)

 

You can decline these tests as well, but if you do so, it is an automatic 1-year license suspension, even on a first offense. Both tests are flawed, but blood is generally better and more reliable than breath tests in most cases. Blood samples can also be tested again later to detect problems, and cannot be as easily tampered with, or corrupted, as breath tests. Your blood alcohol level will likely no longer be rising by the time that you are taken to the station and give a blood sample, and may have fallen. You will avoid a hard 30-day suspension on a first offense if your blood sample tests below the legal limit. The only time that you want to submit to one of these breath devices is if you are sure that you are way over the limit, in which case a malfunction may be your only salvation. Otherwise, take the blood test.

 

BOTTOM LINE: POLITELY DECLINE TO ANSWER ALL QUESTIONS, DECLINE ALL FIELD TESTS, AND SIMPLY TELL THE NICE OFFICER THAT YOU SIMPLY WISH TO GIVE A BLOOD SAMPLE.

How To Avoid A DUI or Drunken Driving Conviction, Particularly If You Are Innocent – Full Article

December 24, 2008

By Attorney Mike Brewer

 

Obviously, the best way to avoid the possibility of a drunken driving conviction is to refrain from drinking and driving. Not drinking alcoholic beverages, using a designated driver, or using a taxicab or other public transportation can do this. Many of us enjoy a cocktail or libation, however, and avoiding driving after consumption is not always possible. Drinking and driving is also not illegal, provided that we are not impaired or at a blood alcohol level of .08% or above while driving.

 

TRAFFIC STOPS:

 

A detention by a police officer will typically occur during a traffic stop for an asserted moving violation or at a police checkpoint. Police agencies make a great deal of money from drunken driving arrests, and individual officers enhance their careers through drunken driving arrests.

 

Law enforcement agencies are therefore more active at times when there are more drivers who have been drinking, and they are more likely to make drunk driving arrests. This occurs after dark, particularly late at night and in the early morning, and during holiday periods. As a consequence, people are obviously more likely to be pulled over by officers looking to make drunken driving arrests. People are also more likely to be arrested for drunk driving at these times, both people who are impaired and those who are innocent.

 

One of the bad parts about all of this is that officers make more bad detentions of motorists. Officers can be hyper-vigilant, stopping motorists for merely touching a dividing line, perceived weaving within their own lane, or for trumped-up reasons. Remember that officers are looking for reasons to make the stops, to come into face-to-face contact with as many motorists as possible, that may lead to the payoff drunken driving arrest. We are even seeing officers stop new cars with paper plates on the hope that they can find the new-car paperwork out of order, justifying a traffic stop after the fact, which is a tactic that is both unlawful and unconstitutional.

 

One of the favorite tactics of police officers is to walk up after detaining a vehicle and ask the driver whether he or she knows why they were stopped. The driver may often blurt out something that the officer did not even observe, a valid reason that is better than that relied on by the officer, who now has his justification. Moreover, the driver is not arguing about it! Never, ever, give the officer the justification for pulling you over.

 

CHECKPOINTS:

 

This time of year we also see the police checkpoints, typically used to check for driver’s licenses and/or drunken drivers. There are constitutional limits on what law enforcement can do in this regard. They cannot simply set up a checkpoint wherever and whenever they want, and stop all motorists on the roadway. Some of the basics are that they must 1. Publicize the checkpoint in the local media, in advance, 2. Have an operational plan by their administration that takes decision-making out of the hands of the officers at the checkpoint, most important of which is that they must have objective criteria established in the vehicles that they stop, and 3. Provide an alternate route so that motorists can avoid the checkpoint.

 

The objective criteria requirement forbids officers from detaining any car that they choose, to prevent racial profiling or other abuses relating to particular motorists. The operational plan must determine beforehand that, for example, only every 3rd or 5th vehicle may be detained. Law enforcement routinely violates this requirement. They also often violate the outlet requirement, stationing one or more patrol cars at the outlet to stop motorists who try to use it to avoid the checkpoint. If you happen to fall victim to a checkpoint, be alert and monitor how it is being run so that you can report any legal violations in its operation to your attorney.

 

It may seem odd that there must be advanced publicity about the time and location of a checkpoint, or an outlet must be provided to motorists who are alert and wish to avoid it. These requirements exist due to the constitutional principle that citizens have a right to be free from unreasonable searches and seizures. Stopping all motorists would be unreasonable, and is the type of government power that our forefathers fled and sought to avoid here. According to the courts, the value of a checkpoint is to deter drunken driving among all motorists in its area, not to arrest them.

 

DRUNKEN DRIVING INVESTIGATION:

 

One of the first things that an officer looks for in a drunk driving investigation is the driving pattern. One of the biggies is the driving pattern, with pronounced weaving across or outside the driving lanes. A driving pattern is often missing in the case of a checkpoint, unless the driver is so impaired and the driving is so egregious that the officers running the checkpoint notice the driving as the vehicle proceeds in the line of cars that are usually waiting to enter a checkpoint.

 

Another factor for which officers look, that is not so obvious, is a vehicle driving in the slow lane of traffic, well within the speed limit. This is particularly true in the late night or early morning hours. Experienced law enforcement officers know that impaired drivers, particularly at this time of day, often drive in the slow lane, well under the speed limit, as they try to “feel” their way along. They seek to avoid problems or detection.

 

On contacting a driver, one of the first signs that an officer seeks is the odor of alcohol. Even if the officer does not smell alcohol, the officer’s first question at a checkpoint or traffic stop is typically, “Have you been drinking alcohol.” If you answer, “Yes”, to that question, it gives the officer the basis to pull you out of the car and begin a drunken driving investigation. It’s on at that point.

 

DRINKING HISTORY:

 

Officers will ask you about your drinking history immediately preceding the detention. They will ask about the number of drinks, the amount, and the times during which those drinks were consumed. They will also ask related questions about such things as whether you have any medical conditions, whether you have taken any medications or drugs, whether there any mechanical problems with your vehicle, etc.

 

You have a right against answering such questions, and you should not do so. The answers to these questions will be strictly held against you, whether you are correct or incorrect in those estimates and answers, and will be used to prosecute you. Even if you later find out that your estimates and answers were incorrect, the fact that you change the answers will also be used against you. Moreover, law enforcement officers come in all stripes – some good, some bad, some earnest, and some lazy. Their mistakes in recording your answers will also be held against you. You answer their questions at your peril.

 

YOU ARE NOT REQUIRED TO ANSWER QUESTIONS, AND SHOULD NOT DO SO, DUE TO THE REASONS STATED.

 

 

FIELD “SOBRIETY” TESTS:

 

Officers conducting a drunken driving investigation will try to get you to perform a series of field “sobriety” tests of your coordination. The police use the pejorative term “sobriety”, but these are only tests of a person’s coordination. You may have seen or heard of the finger-to-nose or the walk-the-line test. An officer will use your perceived performance on these “tests” to form a subjective opinion of whether you are under the influence of alcohol.

 

Do you see a problem with this? First, most officers are poorly trained and do not properly administer these tests. For example, one test is called a nystagmus test. The officer waives a pen in front of the driver’s face, after instructing the driver to keep his or her head still and follow the pen with the eyes. The officer looks for the reaction of the driver’s eyeballs, and tries to measure the point at which the eyes involuntarily bounce, which is said to be an indication of the level of alcohol in the bloodstream.

 

Police officers do not have training in ophthalmology, do not adequately understand the science behind the test, and have not been adequately trained in administering a test that is extremely sensitive. Officers cannot accurately measure the angle of bounce under roadside conditions, often at night, without any calibrated measuring device, using only an ink pen and a flashlight. In all of my 18 years of being a prosecutor or defense attorney, I have never seen a police officer perform this eye test properly.

 

Second, most of these “sobriety” tests are extremely difficult, and drivers are forced to perform them under adverse conditions. Unless we are young athletes, most of us do not possess the coordination to perform well on these tests under the best of circumstances. Even athletes perform better on feats of coordination if, like golfers, they have recently practiced those feats. Most of us, however, have never performed these tests of coordination, which are difficult even with experience. I once had an LAPD motor officer perform the finger-to-nose test in front of a jury, and he missed his nose on each and every attempt.

 

Third, the tests are designed for failure to begin with, where your level of performance is judge by someone who may be biased and who has never seen you perform such tasks. For example, in the walk-the-line test they trick you by ordering you to walk 9 steps, not 10, and count an extra step against you. Even the conditions under which the tests are performed are adverse, often at night, in the cold, on the side of the road, under the stress of fear and embarrassment.

 

Lastly, performance on these tests is very subjective. Whether you pass lies entirely within the officer’s subjective perception, and will go a long way toward your arrest. Your fate lies in the hands of a total stranger, who may or may not wield such awesome power appropriately or objectively. In addition, officers often complete the reports documenting these tests much later, after the alcohol chemical breath or blood test. The results of the breath or blood tests influence their reporting on other aspects of the case. I once had a case where the officer misread the blood alcohol content, thinking it was a very high .20% when it was really a very low .02%. Throughout the police report the officer indicated that the driver was falling down drunk!

 

YOU ARE NOT REQUIRED TO PERFORM FIELD COORDINATION TESTS AND SHOULD NOT DO SO, DUE TO THE REASONS STATED ABOVE.

 

 

PRELIMINARY ALCOHOL SCREENING (PAS) BREATH TESTS:

 

Most law enforcement agencies now have hand-held breath devices, used to test motorists in the field, before making an arrest. They are called Preliminary Alcohol Screening (PAS) devices, small breath devices that fit into a person’s hand.

 

The use of this device may actually occur very early in the process, before most of the questions about drinking history and the field coordination tests. Many officers will go right to the Preliminary Alcohol Screening (PAS) device immediately after you stating that you have been drinking an alcoholic beverage, or the officer smelling its odor.

 

PAS devices are very inaccurate, particularly as to the specific reading. For many years courts only allowed PAS devices to be used to determine whether a person had alcohol in their system, but not the specific level. It was basically a pass/fail test to determine whether an officer could proceed further with a DUI investigation. Today courts allow the specific numerical reading into evidence. This is problematic due to the inaccuracy.

 

PAS devices are temperamental, test only molecules of air, and are based on computer programs that choose human average values that actually vary greatly from person to person. They then take the mere molecules of breath tested, which can be contaminated by alcohol of other sources, and multiply the reading by a factor to come up with an asserted level of alcohol in the blood. DUI attorneys are fighting lawsuits across the country to get the computer codes that these devices use for their results, which the manufacturers are vigorously fighting to keep secret.

 

These tests are inaccurate even when operating within the manufacturers’ tolerances, and they keep no written records of the test. Two breath samples are required within a short period, so that the accuracy can be verified by the fact that two readings are close to each other. These “valid” readings can be up to .02 apart, however! That means that they can be .06/.08, .09/.07, or some other reading within .02 of each other. On a reading at the .08 legal limit, that means that the second reading can vary by up to 25% and still be valid by their criteria!

 

A particular problem is that all breath devices tend to read high when a person’s blood alcohol level is still on the rise. This is the case with most people tested. They typically finish their last drink, maybe evening downing a good part of it quickly, get in their car, and are stopped on their way home.

 

Contamination is also a problem with breath devices. The tests can be contaminated molecules of alcohol left in the mouth, such as that trapped between teeth and the gums. This can include alcohol produced by the body, such as when a person is in a diabetic episode. It can include other sources of alcohol, or molecules that the device reads as alcohol, even if it is not. For example, many breath sprays contain alcohol and are sometimes used by drivers just before officer contact to mask the odor of alcohol. Mouthwash and soy sauce also contains alcohol and will be similarly read. There are videos on the internet where people swish such liquids around in their mouth and blow into breath devices, setting them off like a pinball machine with high readings!

 

The top scientists who have performed the most important research in this area, the very science on which the government relies, have warned that such testing should not be used for prosecution in a court of law. The government maintains these practices, however, due to enormous pressure from interest groups such as MADD, and the money that such arrests brings the departments. The advantage to these devices is that you can avoid arrest with a good result, and be on your way, without being arrested. The danger, however, is that a false reading can result in you not only being arrested, but facing a wrongful conviction. My advice is that you DO NOT submit to them.

 

IN CALIFORNIA, UNLESS A DRIVER IS UNDER 21 YEARS OF AGE, THERE IS NO REQUIREMENT TO TAKE A PRELIMINARY ALCOHOL SCREENING BREATH TEST. YOU SHOULD NOT DO SO FOR THE REASONS STATED. IF YOU ARE UNDER 21, YOU MUST SUBMIT TO THIS TEST, OR FACE A 1-YEAR DRIVER’S LICENSE SUSPENSION JUST FOR NOT TAKING IT.

 

I STRONGLY RECOMMEND THAT ALL OTHER MOTORISTS, 21 OR OVER, NEVER SUBMIT TO A PAS TEST, ESPECIALLY IF YOU MAY BE ANYWHERE NEAR THE LEGAL LIMIT. THE ADVANTAGE OF SUCH A TEST IS THAT IT IS IMMEDIATE AND CAN PREVENT YOU FROM BEING ARRESTED IF YOU ARE NOT ABOVE THE LEGAL LIMIT. THE DANGER, HOWEVER, IS THAT YOU RUN THE RISK OF BEING FALSELY IMPLICATED BY A FALSE READING.

 

 

EVIDENTIARY CHEMICAL TESTS:

 

Here’s the good part, and a question that I am constantly asked – “Which alcohol test should I take if investigated for drunk driving, blood or breath?” The real answer is, “That depends on your blood alcohol level, and the pattern of consumption.” We do not, however, know those answers beforehand, and lay people need a clear rule on which they can remember and on which they can rely under the stress of such an investigation. Therefore, my answer is that the best test, under most conditions, is the blood test, for the reasons that follow.

 

Of course, you can decline this test as well. If you do so, however, you will suffer an automatic 1-year driver’s license suspension on a first offense. This is just for refusing the test, no matter what your blood alcohol level may be, because you are deemed to have consented to this test by obtaining a driver’s license. That penalty is more severe than a first-offense drunken driving conviction itself, and one that most people cannot bear.

 

In addition, law enforcement officers have the power to, and usually will, forcibly extract a blood sample from you. They will actually handcuff you to a chair, and hold you down! DMV will still suspend your license for a year on top of it, for “refusing” an evidentiary chemical test by just saying “no”. It does not matter that you may have physically complied, and only verbally objected. Therefore, you will want to give breath or blood.

 

Breath tests, even the stationary devices used at police stations, are not reliable for the same reasons explained above for the PAS breath tests. Breath testing procedures and breath testing devices are unreliable in general, and the leading scientists, even the pioneer in the field, have warned against using them for law enforcement purposes. Conversion of a reading of minute molecules of alcohol to determine the amount of alcohol throughout a person’s bloodstream is ludicrous.

 

Some law enforcement agencies now have Evidentiary Preliminary Alcohol Screening (EPAS) devices, handheld devices like the PAS, but with a recording system, allowing it to be used for the final test. These devices are just like the PAS devices, however, and have the same flaws. In fact, some devices are both, and the officer can just flip a switch to convert the device from one mode to the other. Not only are these devices inaccurate, but officers can tamper with them, overriding the device’s signal that the breath sample is invalid, in order to get a result. Remember, breath devices are fatally flawed. Just say no.

 

For many years law enforcement used urine tests, the amount of alcohol residue in a person’s urine, to determine the amount of alcohol in a person’s blood. How preposterous, but it was used for many years, until just recently! My hope is that the idea of testing molecules of breath to extrapolate alcohol content throughout a person’s bloodstream will one day be recognized by the legal system as equally preposterous.

 

The type of blood testing that law enforcement uses is also flawed. It is not the same as that conducted by hospitals, and also uses devices to extract molecules from the sample, and extrapolate to total blood alcohol content. Moreover, the sample can ferment if sufficient preservative is not in the vial, which creates alcohol and drives up the content right in the vial. Not to worry, however, because later testing can demonstrate this and, if it happens, the test is completely void, meaning a win for the defense.

 

Another problem with blood is that the sample is often not taken until well after the time of driving, and backward (retrograde) extrapolation used to guesstimate the blood alcohol level at the time of driving. This has, however, two major advantages for the driver. One, by the time that the blood sample is taken, the driver’s blood alcohol level is no longer rising. The prosecution is left in the difficult position of having to use the speculative retrograde extrapolation to claim that it was higher, while not knowing exactly what it was. Two, if the level is below the magic .08 level, DMV will not take action against the driver’s license. The driver may still be prosecuted, and there may be some license action, but the driver on a first offense will avoid the hard 30-day suspension.

 

If nothing else, the major advantage of the blood test is that it cannot easily be tampered with, and can be retested by the defense at a later time. The cops don’t like blood tests, because they are inconvenient for them and they will not know the results right away. Many will do everything they can to coerce you into a breath test. Stand your ground in order to reduce the chance of a flawed breath device wrongly implicating you. The only time that you should submit to one of these breath devices is if you are certain that you are way over the limit anyway, in which case a malfunction may be your saving grace. Otherwise, give a blood sample.

 

 

SUMMARY:

 

If you are detained for a drunken driving investigation, in most cases it is best to decline to answer all questions about your drinking history. You should decline to perform so-called field sobriety tests in all cases. You should decline to blow into a handheld PAS device at the scene, unless you are under 21 years of age and are legally required to do so. In the end, politely ask the nice officer to simply take you to the police station for a blood test. It won’t be pleasant, but it may be the action that will prevent you from being wrongly convicted and losing your driver’s license.

 

 

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