U.S. Supreme Court Says: No Forced Blood Draw in Drunk Driving Case Without Warrant

The United States Supreme Court. (Photo credit: Wikipedia)

On April 18, 2013, the United States Supreme Court made a ruling that directly affects Drunk Driving Cases in California and across the country. The Supreme Court case is Missouri v. Mcneely, 2013 DJDAR 4918. Previous to this court ruling it was generally held that if a driver suspected of driving under the influence of drugs or alcohol refused a chemical test then he could be forced to give blood without requiring a warrant from a judge. In its most extreme, the driver could actually be forcibly strapped to a chair and blood drawn from his body, all without a warrant. This meant that the officer involved in the arrest would make the decision on whether to conduct a “search” of the driver’s blood by piercing his skin to extract the blood.

It is well established that a search inside one’s body is a search protected under the 4th Amendment to the Constitution. As such, a warrant must issue from a judge to allow the search to occur. There are various exceptions to the warrant requirement to include if the person consents to be searched or if exigent circumstances exists. Exigent circumstances refers to a situation that requires an immediate search out of fear that the evidence may not be available if law enforcement has to wait for a warrant.

In drunk driving cases the exigent circumstance that commonly exist is the dissipation of alcohol (or drugs) from the blood of the suspect as time passes. There is no debate that the liver will eliminate alcohol from the suspect’s blood at about the rate of one drink an hour for a 175 lb man. So, the more time that passes between the time of driving and the blood test may cause law enforcement to lose evidence needed to make their case.

In the Mcneely case, the Supreme Court decided that from now on, the natural dissipation of alcohol from the blood is no longer an automatic exigent circumstance making a warrant unnecessary. Each case must be decided on its individual merit when deciding if a warrant should have been procured. The court noted that technology is such that a warrant could be issued by telephone and therefore relatively quickly without unduly compromising law enforcement’s ability to gather evidence. Until the Supreme Court’s decision, alcohol dissipating from blood was considered an exigent circumstance where no warrant was required in California. That is no longer the law.

Practically speaking however, this decision may not change how drunk driving cases are handled. Most people will probably still consent to a chemical test (blood or breath) because a refusal can lead to a 1 year license suspension by the DMV irrespective of what happens in court. To most people the license suspension is worse then a misdemeanor conviction for drunk driving, especially in far flung, car dependent Southern California. In order to accommodate the Supreme Court decision the county courts will probably designate judges to be on 24-hour call in order to evaluate whether a warrant should issue in a drunk driving case. In fact, Orange County already has a 24- hour judge on call for the purpose of deciding bail. While judges will certainly not be happy about having to deal with making a warrant decision at 3:00 am because a Newport Beach reveler drank too many and got in his car, it will probably be considered only a minor inconvenience in the end.

Criminal Law Updates by the Law Offices of Orange County Criminal Defense Attorney William W. Bruzzo (714) 547-4636

An Overview: Minors And The Criminal Justice System

Whenever a person who is 17 or younger is arrested for a criminal offense the case is referred to the Juvenile Justice system in the county where the crime occurred. Criminal cases in the Juvenile system are treated very differently then adult cases. Whereas the authorities tend to concentrate on punishment for adult offenders, the emphasis in criminal cases before the juvenile court is rehabilitation of the minor.

As such, the court will often provide minors with an incentive to turn their lives around by offering them a dismissal of the case if they comply with certain terms like community service and/or classes on personal responsibility, drug abuse and other similarly themed educational opportunities.

While minors are subject to the penal code just like adults, the fact that they are 17 or younger also brings them under the authority of the Welfare and Institutions Code. Of special significance to minors is Welfare and Institutions Code Section 790 which permits the Juvenile Judge to enter a Deferred Entry of Judgment (DEJ) for the minor. This resolution requires the minor to plead guilty but sentencing is delayed to give the minor time to complete community service or classes. Once the minor finishes the court requirement, then the case is DISMISSED. In this fashion, the minor is never sentenced on the offense and thus the petition is not sustained against him. This saves the minor from having the juvenile equivalent of a conviction. It also, provides the minor with a reason to “straighten up and fly right” so that he can keep his record clean.

Notably, if the minor has never been to the California Youth Authority (state prison for juveniles), has successfully completed probation on previous cases, is over the age of 14 and is not accused of a serious or violent offense he can qualify for this program. Charges that are too serious to be considered for this program include murder, robbery, rape with force, kidnapping for ransom, attempted murder and other various serious and violent offenses.

However, most juveniles qualify for the Deferred Entry of Judgment Program and are spared a juvenile conviction. Contact the Law Offices of William W. Bruzzo to discuss the particular facts of your child’s case.

Criminal Law Updates by the Orange County Criminal Defense Lawyer William W. Bruzzo (714) 547-4636.

Sentencing Reopened for Max Factor Heir

Andrew Luster is the great-grandson of cosmetics magnate, Max Factor. Luster was accused of plying three women with the rape drug GBH and then raping them and videotaping the act. He bailed out at 1 million dollars and fled to Mexico. In a situation made for Hollywood the bounty hunter and reality TV star Duane “Dog” Chapman captured him in Mexico and returned him to the United States.

Mr. Luster was convicted and sentenced to 124 years in prison at trial in 2003. Since his conviction his lawyers have tried to reopen the case and have asked for a new trial. While those efforts were denied by the Judge sitting in Ventura County where the original trial was held, the court did recently agree to reopen the sentencing portion of the trial. The rationale being that the sentencing appeared to be excessive and improperly made. Prior to trial Mr. Luster may have been offered an 8-12 year sentence according to his Defense team.

Criminal Law Updates by the Law Offices of Orange County Criminal Defense Lawyer William W. Bruzzo (714) 547-4636

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• Max Factor heir Andrew Luster granted new sentencing hearing (abclocal.go.com)
• CA judge vacates sentence for Max Factor heir (utsandiego.com)
• Calif. judge vacates sentence for Max Factor heir (kvue.com)
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Speedy Trial Rights: 48 Hour Rule For California Suspects In Custody

Under the Constitution of the United States and the California State Constitution everyone has a right to a ‘Speedy Trial’. This means that once you are charged and/or in custody they must give you a trial within a reasonable time frame. The specific amounts of time are left to the states. In a California misdemeanor case you must have a trial within 30 days of your initial court date, also known as an arraignment, which is when you enter a plea of guilty or not guilty. In a felony case you are entitled to a trial within 60 days of your arraignment. Also, if taken into custody in California you must be seen by a Judge within 48 hours of your arrest not counting weekends or holidays. So, if you are arrested Friday night you must be seen by a Judge no later than Wednesday morning.

This brings us to the sad case of Stephen Slevin of New Mexico. Mr. Slevin was arrested in New Mexico for drunk driving and possession of a stolen vehicle in August of 2005. These are relatively low grade offenses. However, for reasons unclear, Mr. Slevin’s case never went to trial and he was not released until June of 2007, almost two years later. What is worse is that he spent most of his time in solitary confinement where he eventually lost his mind and was reduced to rocking back and forth with a blanket over him. In May of 2007 he was released to a mental hospital covered in bed sores and fungus. After recuperating somewhat in the mental hospital he was returned to solitary confinement before Prosecutors finally decided not to pursue charges based on his lack of competence. Two years is a very long time for someone to be detained pending charges. Spokesman for the county he was detained in blamed the District Attorney’s office and the Public Defender for the excessive time he was in custody. It would also seem that the jail personnel were seriously remiss in the care of this inmate. He apparently wrote notes daily while in custody asking for medical attention but none came. He eventually gave up.

After release Mr. Slevin brought suit against the county for the lack of medical attention and the delay in bringing his matter to trial. The jury awarded him 15.5 million dollars for his suffering at the hands of the authorities. Hopefully, the results of this suit will cause the authorities in Doña Ana County to pay better attention to its inmates.

Here is a CNN News video covering this story.


If you are having trouble viewing the video, you can see it here

Criminal Law Updates Law Offices of Orange County Criminal Defense Attorney William W. Bruzzo (714) 547-4636

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More DUI Checkpoints In Fullerton

Downtown Fullerton, California, will be getting more of a police presence in an effort to combat drunk driving according to the Orange County Register. There will be more officers and operations placed in the area in order to check drivers for alcohol consumption.

The police department received two grants from the State Office of Traffic Safety. One grant was for $146,222 “for programs related to drunken-driving suppression” and a second of $50,000 to be used for sobriety checkpoints. The grant was set for sobriety check points by the state Office of Traffic Safety.

According to the O.C. Register the City Council initially declined the $50,000.00 but later the State Office of Traffic Safety indicated the city must take the $50,000.00 if it accepts the $146,222.00. With this grant there has been one check point so far and four more planned by the end of September. More officers were placed in the bar dense area of Fullerton to patrol for drunk drivers.

Criminal Law Updates by the Law Offices of Orange County Defense Attorney William W. Bruzzo (714) 547-4636.

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The DNA For Dismissal Of Criminal Charges Program In Orange County

DNA - Deoxyribonucleic acid (Photo credit: Wikipedia)

The Orange County District Attorney has been resolving criminal cases by having the Defendant give their DNA in exchange for dismissals of usually minor cases.

This program in Orange County has only been in effect for the last couple of years and had generally been very beneficial to Orange County Defendants facing minor criminal charges such as ‘hit and run’ and ‘petty theft’ in that they can get the case dismissed by offering to give their DNA.

DNA of course refers to Deoxyribonucleic acid which is a macromolecule that exists in every living thing. Because DNA is unique to each person it is used by law enforcement as a means of identifying individuals who may be involved in a crime. If police find a strand of hair, drop of blood or other bodily substance at a crime scene they can test the substance against DNA samples in nationwide data bases. If the person who left the DNA at the crime scene is in the data base then the police will have a ‘hit’ and can investigate that person as someone of interest. Law enforcement can use the presence of DNA to put a particular person at a particular place or in the case of sexual assault cases, the DNA present in semen or other bodily fluids can be used to determine who committed the crime.

DNA has proven to be a very useful tool for law enforcement, as such Tony Rackauckas the Orange County District Attorney, implemented the DNA for dismissal program as a way to build up a local Orange County DNA base which will interface with national data bases.

Some people are hesitant to give their DNA for fear of being mistakenly accused of a crime by some glitch in the system. However, experts say that DNA is like a fingerprint only much more reliable in its uniqueness to each individual. In addition, it is rare that an individual is charged or convicted with DNA alone; usually other evidence is produced to show the likelihood of the individual being present at the scene in addition to the DNA.

DNA has most famously been used to exclude people from having committed crimes. The media reports numerous instances where individuals who were convicted of crimes and already served long sentences are suddenly freed because DNA testing showed that someone else was the culprit. For example, evidence from rape cases that occurred before DNA testing was available can be subject to DNA testing if the court allows the matter to be reopened. Many individuals have been freed because of DNA testing done after the person was sentenced and convicted.

Everyone should be advised however, that once their DNA is in the data base and they subsequently commit a crime their chances of being discovered are much greater.

Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636

How To Get A Restraining Order In California

There are two sources in California law for Restraining Orders: Family Code Section 6203 and Code of Civil Procedure 527.6. The family code section pertains to Restraining Orders between family members, and is generally used by husbands and wives against each other as well as people involved in a dating relationship; the Civil Procedure Code allows persons not related to each other to bring restraining orders against one another. So the Civil Procedure Code can be used against co-workers, neighbors as well as between girlfriends and boyfriends. There is some overlap with Family Code Section 6211 because people who are dating can also bring a Restraining Order under that section when there have been occasions of domestic violence.

Regardless of which of the two sections a restraining order is brought under the Petitioner (person requesting the restraining order) must prove the following against the Respondent (person against whom the Restraining Order is being sought):

1. That actual physical violence occurred against the Petitioner by the Respondent; or  
2. That there was an immediate threat of physical violence by the Respondent and the Petitioner reasonably believed this to be an immediate threat; or  
3. That there is harassment by the Respondent against the Petitioner. 

Any single one of these grounds is enough to justify the granting of a Restraining Order. A threat of physical violence can be the statements “I am going to kill you,” or “I am going to beat you up.” The Petitioner must reasonably believe that this threat is immediate and that the Respondent could carry out the act. For example if an elderly wheel chair bound individual says “I am going to beat you up” this may not meet the standard if directed toward a full grown man. However, if the same wheelchair bound individual threatens to kill someone with a gun, then that may be sufficient to permit the court to grant a Restraining Order. Restraining Orders based on Harassment commonly occur when the Respondent makes many unwanted telephone calls in a row; or if the Respondent calls once or twice a day and yells obscenities at the Petitioner; or if the Respondent passes by outside the Petitioner’s home and yells obscenities on a daily or frequent basis. To obtain a Restraining Order based on Harassment the Petitioner must prove that the conduct is of a harassing nature and occurs with some frequency.

Actual violence occurs when the Respondent uses force and physically strikes the Petitioner. The Petitioner does not need to actually suffer an injury to have a Restraining Order granted on these grounds. The word of the Petitioner is enough, although it is easier to prove the case if there is a photograph of the injury taken close to the time of the incident. If you are unclear whether you have grounds for a Restraining Order under any of these bases contact Attorney Will Bruzzo at (714) 547-4636.

Restraining Orders often come up in Domestic Violence situations between husbands and wives and people in a dating relationship. Sometimes the police will come to a home on a call of Domestic Violence and not find adequate evidence to arrest the spouse; or, the spouse will get arrested but the District Attorney decides not to file the case. In those instances it is not uncommon for the police to recommend that the person get a Restraining Order. There are many reasons why police may make this recommendation as opposed to taking the person into custody. The most obvious one is that a Restraining Order has a much lower standard of proof then a criminal case. A criminal case requires that there be evidence beyond a reasonable doubt that the physical violence or threat of physical violence or harassment occurred. Because a Restraining Order is civil in nature the Petitioner need only prove that the incident occurred by clear and convincing evidence. Also, to prove the crime of Domestic Violence in a criminal proceeding there must be some physical injury no matter how slight. No physical injury is required at all for the granting of a Restraining Order.

There are two stages to the granting of a Restraining Order. The first stage results in a Temporary Restraining Order (TRO). This is when the Petitioner drafts her request for a Restraining Order and files it with the court. If the Petitioner feels like they are in immediate danger they do not need to even notify the Respondent, they can just note that in their moving papers and file it with the court. However, the Petitioner must usually try to give the Respondent notice; telephone notice is permitted. The court will then review the Petitioner’s moving papers and can choose to hear from the Respondent or not. If the court grants the Temporary Restraining Order that means that the Respondent may not have contact with the victim from that moment forward. If the Respondent violates the Restraining Order by contacting the Petitioner through e-mail, telephone or letter he can be charged with violating a court order which is a criminal act and can subject him/her to criminal proceedings and jail time. The second stage of the process is the actual Restraining Order hearing. If the Petitioner can show that the elements of a Restraining Order are met then the order is granted for three years and the Respondent may have no contact of any type with the Petitioner for that three year period. A Restraining Order is like any other judicial hearing, relevant witnesses, photographic evidence and documentary evidence as well as the testimony of the Petitioner and the Respondent is permitted. Each party has the right to be represented by counsel.

Attorney Will Bruzzo has been very successful representing Petitioners and Respondents in Restraining Order hearings. Contact him to discuss your case at (714) 547-4636.