Court Fails to Abstract DUI to DMV

Here’s a weird glitch that has been coming up lately that people should be aware of. It comes up in the context of a DUI conviction following an Ad Min Per Se suspension of the client’s California Driver’s License.

Assume a routine, garden variety DUI and a timely request for an APS hearing. Following the hearing DMV suspends the CDL for 30 days and follows that suspension with a 5 month restriction. Generally speaking this would call for an SR22, proof of DUI school enrollment, $125 reissue fee, and an Ignition Interlock Device (IID – Blow & Go). Assume further that the criminal matter is resolved in Court on the same day as the APS suspension goes into effect.

In theory, the Court should abstract the DUI conviction to DMV on the day of the plea, and the APS suspension and the DMV suspension as a result of the conviction would run concurrent. However, in Alameda County, and I’m told, in other counties using a similarly branded computer system, the abstract is sometimes not sent to DMV until months later. The Court therefore fails to timely update the DMV.

In the meantime, the Client, trying to do the right thing, gets her restricted license and an IID. Some months later, when the Court finally abstracts to DMV, DMV notifies Client that she must put another IID on her vehicle at her own expense. Although the DMV record shows that an IID was in fact installed for the requisite 5 month period, the DMV will not credit that IID time.

Unfair? Clearly. But both DMV and the Court point fingers at each other saying that the other’s computer, procedures, or view is wrong. The Client is caught in the middle without remedy.

I have suggested to clients that they not put the IID on their vehicle until ordered to do so by DMV and following the abstracting of the record by the Court to DMV.

I’d be very interested to know if others have run into this problem and if there is some clever fix.

I apologize for the rather wonky discussion, but it will be pretty straightforward for anyone who has dealt with it.

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What Does Immunity Mean for a Witness?

When a witness is brought in for questioning, they may be asked to provide evidence that could potentially incriminate them. The Fifth Amendment, however, protects witnesses from sharing incriminating information against themselves should it be invoked, and the witness refuses to answer any more questions. However, it is possible for an investigator to push past this privilege and obtain the information they require. By offering the witness immunity, the witness could avoid prosecution in exchange for a testimony.

The broadest type of immunity that is usually granted is transactional immunity. Also known as “total” or “blanket” immunity, transactional immunity offers complete protection from future prosecution for anything mentioned in the witness’ testimony. Keep in mind, however, that transactional immunity does not protect against prosecution for unrelated crimes mentioned in the testimony. Further, transactional immunity is not offered by the federal system, so it may not be offered as readily as one might think.

Used by both federal and state systems, use and derivative use immunity is a common but narrower type of immunity that could be offered to the witness.  This immunity stops the prosecution from using the witness’ statements or the evidence derived from those statements against the witness. Use and derivative use immunity does not protect against additional investigation, on the part of the prosecution, into crimes mentioned by the witness. Charges could be brought against the witness for their mentioned crime only if independent evidence is provided proving the crime. If independent evidence separate from the testimony is not provided, the judge could block the use of the immunized testimony.

A witness can also waive immunity if they wish. Immunity can be waived using a written statement, testifying before immunity is granted, or by not asking for immunity in a timely manner. When a witness waives immunity, the previously immunized testimony can be used in the case. However, before you consider waiving immunity, meet with criminal defense lawyer beforehand. Our team at the Law Office of Louis J. Goodman can protect your rights and interests as a witness.

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Marijuana Breathalyzer Completes Field Testing in California

A marijuana breathalyzer developed by Hound Labs in collaboration with the University of California, Berkeley finished field testing in California. The breathalyzer, which detects concentrations of THC in a person’s breath, is the latest in cannabis detecting technology to stop drivers from driving high. The device works like the alcohol breathalyzer test. The suspected driver blows air into the device, which then records the concentration of THC in his or her breath. However, it has not yet been decided what amount of marijuana detected in the driver’s breath can be used to establish impairment. The current law states the amount an alcohol breathalyzer can detect before being considered impaired, but not for marijuana. Further, the current blood and urine tests being used reveal whether there is some marijuana in your system. Not how much marijuana is sufficient to impair one’s ability to drive.

Working with California law enforcement, Hound Labs tested the device on driver’s suspected of driving while high. Officers would pull over the suspect and, if the driver failed their field sobriety tests, he or she would then be asked if they would voluntarily blow into the prototype breathalyzer. After recording the driver’s breath, the information would then be relayed to the research team to collect and compare with other results. According to Hound Labs, the device performed well, and they did find a correlation in the amount of THC recorded in comparison to how recently the driver has smoked marijuana. The drivers who failed their sobriety tests were not arrested but rather educated in the dangers of driving high. The drivers were also found alternative transportation to make it home safely.

Due to the promising results, Hound Labs now focuses on improving the size and durability of their breathalyzer. They hope these improvements will make the device easier to handle. At this time, the marijuana breathalyzer is not in use by California police officers. However, this does not mean officers are not on the lookout for driver who may be driving under the influence of cannabis. If you have been charged with a marijuana DUI, the Law Office at Louis G. Goodman can help. Our lawyers have years of experience handling Californian’s changing marijuana laws. We can help protect your rights and defend yourself to the fullest extent of the law.

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Marijuana DUI

Despite all the handwringing about driving under the influence of marijuana in the brave new world of legalized recreational pot, little will change in terms of motorist behaviors, arrests, or prosecutions.

As a longtime criminal defense attorney and former prosecutor who has handled thousands of DUI cases, I note that there is a substantial difference in DUI alcohol and DUI marijuana. Marijuana simply does not affect driving as negatively as alcohol. While most DUI alcohol arrests are made because of police stops based on obviously bad driving, most DUI MJ arrests take place after the police have made a stop for some other minor infraction (taillight, registration violation, routine traffic matter), and then smell marijuana in the car.

Despite legalization, incidents of DUI MJ will not significantly increase. Let’s not kid ourselves, people who choose to smoke marijuana have not been much deterred by the fact that it was illegal. Moreover, due to legalized medical marijuana being readily available, there has been a reliable supply of high quality, THC laden, pot available to virtually anyone who wanted it. Legalization is unlikely to significantly increase the number of people who smoke pot, nor for that matter, likely to increase the number who drive while under its influence.

For a prosecutor to win a DUI case, she must prove to a jury that the defendant’s ability to drive was significantly impaired by use of a substance or some combination of substances, beyond a reasonable doubt. Modern legislation deems that anyone with a .08 blood alcohol is driving illegally, whether or not their driving is actually impaired. The .08 level was determined after much scientific research and testing. For a variety of reasons, no such testing has been done on marijuana levels and driving performance, therefore, prosecutors have no reliable blood/marijuana tool at their disposal. Therefore, a DUI MJ case would have to be made on circumstantial evidence: bad driving, accident, smell of pot in the car, poor Field Sobriety Tests, admissions of the defendant, etc. This is not an impossible prosecutorial standard, but it is far more difficult than simply proving .08 or higher. Add that to generally friendly to marijuana use Bay Area juries and it is not hard to see the uphill battle a DUI MJ prosecutor faces.

The reality is that legalization will cause only a marginal increase in marijuana use, a minor increase in DUI MJ, little change in DUI MJ detection and enforcement by police, and not much change in prosecutorial attitudes toward DUI MJ cases.

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What Acts Are Considered Stalking in California?

marijuana DUIIn many cases, people are accused of stalking even though under the definition of the law, they did not commit any acts that would be considered stalking in California.

Definition of Stalking in California

CA.gov features a page on stalking in California. The page has a section on it regarding behaviors that are defined as stalking. These behaviors include the following:

  • Spying – This can include cyberstalking, literally hiding and spying or showing up at an event and keeping watch.
  • Threatening – Making threats that cause the victim fear or apprehension, such as threatening to enter the victim’s home.
  • Monitoring – Keeping track of the victim’s activities by following them online through their social media pages, using a GPS device or questioning the victim’s friends and family about the victim’s activities and whereabouts.
  • Harassing – Making several calls to the victim that are harassing in their frequency or due to their content.

There are several defenses that can be used if you have been accused of stalking. To learn more about what happens if you are accused of stalking in California and what you should do about it, call the Law Office of Louis J. Goodman. Criminal defense lawyer Louis J. Goodman has been successfully protecting the rights of people charged with stalking. Contact our office today to schedule a free consultation to discuss your situation with him.

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