Newport Beach DUI Attorneys

July 27th, 2010

This appeal involves a legal issue of first impression and continuing public interest in California.

Respondent, driving erratically at a slow speed southbound on U.S. Highway 101 at 1:20 a.m. on June 17, 2000, was stopped by California Highway Patrol officers. Requested to walk to the officers’ vehicle, respondent displayed difficulty in maintaining his balance. His movements were deliberate, slow and sluggish; his eyes were red and watery. He denied drinking any alcohol but stated he had consumed approximately 23 cups of kava. Asked if he felt any effects from the kava, respondent replied that he felt “slow and heavy.” Immediately thereafter, physical sobriety tests were administered to the respondent. His performance was flawed. A preliminary alcohol screening test showed [***2] 0.00 percent alcohol in his blood. One of the officers then arrested respondent after forming the opinion that respondent was under the influence of alcohol or a drug and his ability to operate a motor vehicle safely was impaired.

Appellant commenced criminal action against respondent on June 19, 2000, accusing him of violating Vehicle Code section 23152, subdivision (a). 1 Respondent moved to dismiss the charge, claiming unconstitutionality of section 23152, subdivision (a) as applied to him in the circumstances of the case. He alleged the statute was “overly broad and vague” and its  [*24] application on the facts of the case denied him “due process of law.” Respondent further contended section 23152, subdivision (a) provides no notice that driving under the influence of kava is a crime and that neither by statute nor case law is kava deemed a drug under section 23152, subdivision (a).

FOOTNOTES

1 All statutory references are to the Vehicle Code unless otherwise stated.

Respondent [***3] also moved pursuant to Penal Code section 1538.5 to suppress evidence from a postarrest urine test. Respondent’s motion to suppress evidence was considered first by the trial court at a hearing in which the arresting officer testified for appellant and was cross-examined  [**689] by respondent. The respondent neither produced any evidence nor exercised responsibility for sustaining the burden of his motion to dismiss the case. In fact, appellant’s evidentiary presentation anent the motion to suppress evidence and the testimonial hearing thereon were subsumed by the court’s consideration of the motion to dismiss for unconstitutionality. The trial court denied the motion to suppress evidence and, after considering legal argument in which the court requested appellant to proceed first, ordered dismissal of the case, declaring it was doing so, “in this case, under these circumstances, based on the evidence in this particular record.”

CA(1a)(1a)

Appellant appeals, claiming dismissal occurred pursuant to Penal Code section 1385 “in furtherance of justice” and that the trial court abused its discretion thereunder. We reverse, not because Penal Code section 1385 [***4] ’s discretionary power was abused (Pen. Code, � 1385 was not the basis of dismissal), but because (1) respondent, not appellant, bears the burden in his due process attack of showing Vehicle Code section 23152, subdivision (a)’s unconstitutionality as applied and failed utterly to do so, and (2) such showing as was adduced in the motion to suppress hearing persuades us the statute is constitutional as applied to respondent. As noted in People v. Archerd (1970) 3 Cal. 3d 615, 639 [91 Cal. Rptr. 397, 477 P.2d 421], in which the defendant raised preindictment delay as a violation of his due process right to a speedy trial, an accused must demonstrate “prejudice or improper motive by the prosecution . . . [and thereafter] the burden shifts to the People to show that the pre-indictment delay was the result of a valid police purpose.” Similarly, HN1Go to the description of this Headnote.respondent, not appellant, was first obliged procedurally to establish, by experts or other evidentiary sources, unconstitutional application, after which appellant could respond.

[***5] Since no facts were advanced by respondent concerning unconstitutional application of section 23152, subdivision (a) to him, he rests his unconstitutionality argument upon the lack of any judicial decision and omission of a literal statutory statement that kava constitutes a “drug” within the meaning of section 23152, subdivision (a). We could remand to the trial court for  [*25] failure to compel respondent’s execution of his burden to show unconstitutionality of section 23152, subdivision (a) as applied. CA(2)(2)

We do not do so because HN2Go to the description of this Headnote.interpretation of a statute and the determination of its constitutionality are questions of law, absent any factual showing by an accused. As an appellate court, we apply a de novo standard of review. ( People v. Health Laboratories of North America, Inc. (2001) 87 Cal. App. 4th 442, 445 [104 Cal. Rptr. 2d 618].)

CA(3)(3)

HN3Go to the description of this Headnote.All presumptions favor the validity of a statute, and statutes “must be upheld unless their unconstitutionality clearly, positively and [***6] unmistakably appears.” ( Smith v. Peterson (1955) 131 Cal. App. 2d 241, 246 [280 P.2d 522, 49 A.L.R.2d 1194].) A criminal statute satisfies due process so long as it is “definite enough to provide a standard of conduct for those whose activities are proscribed [citations]” and “provide[s] definite guidelines for the police in order to prevent arbitrary and discriminatory enforcement. [Citations.]” ( People v. Heitzman (1994) 9 Cal. 4th 189, 199-200 [37 Cal. Rptr. 2d 236, 886 P.2d 1229].) A statute must give fair warning and sufficiently inform ordinary people with average intelligence of the acts it declares prohibited and punishable. ( Burg v. Municipal Court (1983) 35 Cal. 3d 257, 270-272 [198 Cal. Rptr. 145, 673 P.2d 732].) The defendant in Burg challenged the then existing 0.10 percent blood-alcohol standard for conviction  [**690] of a section 23152, subdivision (b) violation, with a vagueness theory that it was impossible “for a person to determine by means of his senses whether his blood-alcohol level is a ‘legal’ 0.09 percent or an ‘illegal’ 0.10 percent.” (Burg, at p. 270.) The court rejected defendant’s [***7] curious theory and commented that consumption of a quantity of alcohol “should notify a person of ordinary intelligence he is in jeopardy of violating the statute.” ( Id. at p. 271.)

CA(1b)(1b)

Respondent herein contends that without inclusion of kava, in haec verba, section 23152, subdivision (a) is void for vagueness. HN4Go to the description of this Headnote.Actual notice of each drug constituting a basis for prosecution under section 23152, subdivision (a) is not required if a person is reasonably made aware of the proscribed conduct, namely, impaired driving ability resulting from ingestion of some substance. HN5Go to the description of this Headnote.“It is not required that a statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. It is not necessary that a statute furnish detailed plans and specifications of the acts or conduct prohibited.” ( Smith v. Peterson, supra, 131 Cal. App. 2d at p. 246.)

In People v. Buese (1963) 220 Cal. App. 2d 802, 806-807 [34 Cal. Rptr. 102], the court held not [***8] void for vagueness a statute barring transportation of “drugs” into a county jail. The drug in issue was a hypnotic. The court observed: ” ‘Drugs’ is the general word used in association with ‘narcotics’ and ‘alcoholic beverages.’ These terms have a number of things in common,  [*26] included among which is the fact that they are taken internally and when so taken they affect the brain, and particularly that function of the brain controlling judgment. By use of the word ‘drugs’ it is reasonable to assume the Legislature intended to include those drugs having similar characteristics. So interpreted hypnotic drugs are clearly within a much larger group possessing such similarity.” ( Id. at p. 807.)

HN6Go to the description of this Headnote.As used in section 23152, “drug” is defined by HN7Go to the description of this Headnote.section 312, which declares: “The term ‘drug’ means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability [***9] to drive a vehicle in the manner that an ordinarily prudent and cautious man, in full possession of his faculties, using reasonable care, would drive a similar vehicle under like conditions.”

HN8Go to the description of this Headnote.Omission of kava by its name does not render Vehicle Code section 23152, subdivision (a) unconstitutionally vague as applied. ( People v. Avila (2000) 80 Cal. App. 4th 791, 802-803 [95 Cal. Rptr. 2d 651]; People v. Keith (1960) 184 Cal. App. 2d Supp. 884.) In Avila, a Penal Code section 286, subdivision (i) action, the Court of Appeal iterated: HN9Go to the description of this Headnote.“A statute provides adequate notice when its ‘language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ ” ( People v. Avila, supra, 80 Cal. App. 4th at pp. 802-803, italics added.) No actual substance was (or is) identified in Penal Code section 286, subdivision (i). There,  [***10] the court held the purpose of the allegedly vague language in that statute was “to define the crime in terms that clearly warn against the commission of sodomy on a victim whose ability to resist, . . . is prevented by substances having anesthetic or intoxicating effects . . . .” (Avila, at p. 798.)

HN10Go to the description of this Headnote.Section 23152, subdivision (a) provides that vehicle operation while under the influence of a substance other than alcohol which could “affect the nervous system, brain, or muscles” (� 312) in  [**691] such a way as to impair a person’s ability to drive as an ordinarily prudent and cautious man using reasonable care would drive a vehicle under like conditions is a crime. It describes conduct; it does not purport to identify particular drugs, and it is not required constitutionally in this case to do so. (Testimony offered by appellant at the hearing on the motion to suppress evidence demonstrates respondent was himself aware of kava’s effects the very night of his arrest; he felt “slow and heavy.” 2

FOOTNOTES

2 The effects upon his motoring ability were plainly observed by the arresting officer, who also observed respondent’s flawed performance on physical sobriety tests.

[***11] Because respondent failed to sustain the burden of proof created by his due process motion to dismiss for unconstitutionality as applied and because  [*27] section 23152, subdivision (a) in conjunction with section 312 conveys legally sufficient warning about the prohibited conduct, the judgment dismissing the criminal action against respondent is reversed. The case is remanded for trial.

Holm, P. J., and Pfeiffer, J., concurred.

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Newport Beach DUI, DUI Attorneys Newport Beach

July 27th, 2010
OPINION

[*3] [**230] I.

Factual Background

This is an appeal from the judgment rendered against appellant on July 8, 1982, in Whittier Municipal Court following appellant’s guilty plea to a violation of Vehicle Code section 23152, subdivision (b) (a person with a blood alcohol content of 0.10 percent or greater, driving a motor vehicle). Prior to the plea entry, the court heard and overruled a demurrer filed by appellant. The judgment provided that appellant be placed on summary probation for three years, ordered to pay a fine of $ 390 plus penalty assessment, ordered to participate in an alcohol education program, and that his driving privileges be restricted for [***2] ninety days. Notice of appeal was timely filed.

[**231] II.

Issues

Appellant attacks the constitutionality of Vehicle Code section 23152, subdivision (b) upon the same grounds as charged in his overruled demurrer:

(1) The statute fails to provide adequate notice and thereby results in a denial of due process of law;

[*4] (2) The statute is an invalid strict liability statute; and

(3) The statute in conjunction with other state laws is in violation of the Fifth Amendment right against self-incrimination.

III.

Discussion

A. Adequacy of Notice

CA(1)(1) 1. HN1Go to the description of this Headnote.It is a general rule of statutory construction that appellate courts should construe statutes so as to render them valid whenever possible. ( Bryant v. Swoap (1975) 48 Cal.App.3d 431, 439 [121 Cal.Rptr. 867].) HN2Go to the description of this Headnote.Unconstitutionality must be clearly shown and any doubts resolved in favor of the statute’s validity. ( Erlich v. Municipal Court (1961) 55 Cal.2d 553, 558 [11 Cal.Rptr. 758, 360 P.2d 334].)

CA(2)(2) 2. We disagree with appellant’s contention that Vehicle Code section 23152, subdivision [***3] (b) is void for vagueness and is a denial of due process in not providing fair notice of the conduct prohibited. The statute does not require, as appellant alleges in argument, that “every person be aware of very specific formulas.” An analogous meritless position was adopted by the appellant in People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 21 [179 Cal.Rptr. 431] charging that Vehicle Code section 23126 (now Veh. Code, � 23155) was unconstitutionally vague. In that case, this court stated, “This argument is based on the premise that one cannot be expected to know when his blood alcohol will reach a level to invoke the statutory presumption. There is no showing, nor could there reasonably be, that a driver cannot tell when his or her sobriety has been affected to such an extent as to significantly impair driving ability.” (Italics added.)

B. Strict Liability Statute

CA(3)(3) Appellant contends Vehicle Code section 23152, subdivision (b) is unconstitutional because it is a strict liability criminal statute which impermissibly eliminates the element of intent [***4] or knowledge. Our careful analysis of California’s Vehicle Code section 23152, subdivision (b) and similar statutes enacted by 14 other jurisdictions (none of which have been declared unconstitutional) reveal Vehicle Code section 23152, subdivision (b) to be one of those statutes enacted for the protection of the public health and safety, e.g., traffic and food and drug regulations, in which criminal sanctions are relied upon even if there is no wrongful intent. The offenses are not crimes in the orthodox sense, and wrongful intent is not required in the interest of enforcement. ( People v. Vogel [*5] (1956) 46 Cal.2d 798, 801, fn. 2 [299 P.2d 850]; 1 Witkin, Cal. Crimes, � 62, p. 66.) We find the statute to be within the legitimate police power of the state and to be directed towards the legislative concern of protection of the public from the consequences of the drinking driver. The California Supreme Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 898-899 [157 Cal.Rptr. 693, 598 P.2d 894] has recognized the alarmingly high incidence of death and serious injury on our [***5] highways due in a significant degree to the effect of alcohol on drivers.

C. Fifth Amendment Rights

CA(4)(4) Appellant lastly seeks to pierce the constitutional armor of Vehicle Code section 23152, subdivision (b) by asserting that when read in conjunction with Vehicle Code section 13353 (Implied Consent Law), Vehicle Code section 23152, subdivision (b) is unconstitutional in that, in such circumstances, the Fifth Amendment rights of an arrestee are violated. Appellant contends  [**232] that the results of a chemical test administered pursuant to Vehicle Code section 13353 would be conclusive evidence of guilt in a prosecution under Vehicle Code section 23152, subdivision (b), regardless of whether or not the person charged was under the influence.

Appellant’s position is devoid of merit. The chemical test results are not conclusive evidence of guilt of violation of Vehicle Code section 23152, subdivision (b). It is incumbent upon the prosecution in such a proceeding to prove beyond a reasonable doubt that [***6] the defendant had 0.10 percent or more, by weight, of alcohol in his or her blood while driving a motor vehicle upon a highway or upon other than a highway in areas open to the general public. No presumption exists in favor of the validity of the test results. Reasonable doubt may be established in the minds of the trier of fact by the defense attacking the skill, experience and technique of the technician who administered the test, the reliability of the test itself, the dependability of equipment used, and other trial tactics available to competent counsel.

Appellant errs in his contention that the requirements of Vehicle Code sections 13353 and 23152, subdivision (b), when read in conjunction with each other, are violative of Fifth Amendment rights. Each of these statutes deal with real or physical evidence. CA(5)(5) “HN3Go to the description of this Headnote.The privilege against self-incrimination is limited to the involuntary giving of testimonial and communicative evidence and does not extend to real or physical evidence extracted under compulsion. Consequently, the admission into evidence of the results of a blood alcohol test, physical evidence of [***7] intoxication, does not violate the privilege against self-incrimination.” ( People v. Municipal Court (Gonzales) (1982) 137 Cal.App.3d 114 [186 Cal.Rptr. 716], citing: Gilbert v. California (1967) 388 U.S. 263, 266  [*6] [18 L.Ed.2d 1178, 1182, 87 S.Ct. 1951], and Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 914, 86 S.Ct. 1826].)

We conclude Vehicle Code section 23152, subdivision (b) is constitutionally valid. The trial court correctly overruled the demurrer and we find the order of probation to be valid.

IV.

The judgment of conviction and the order of probation are affirmed.

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Lawsuit filed against Judge Bernie LaForteza

April 21st, 2010

Okorie OKOROCHA, Esq., SBN 226658
California Legal Team
117 E. Colorado Blvd., Suite 465
Pasadena, CA 91105
(626) 792-1301
Attorney for Plaintiff The Defendant
and Prospective Class Members

THE UNITED STATES DISRTICT COURT
CENTRAL DISTRICT OF CALIFORNIA
1. Comes plaintiff The Defendant individually, and as class representative for those persons similarly situated as arrested and prosecuted for crimes under California law (“Defendant”), who files this civil rights complaint pursuant to Title 42 U.S.C. §1983 for violation of the excessive bail clause of U.S.Const.Amend. VIII, and for imposing a more severe penalty for exercising the right to a jury, a due process violation under U.S. Const.Amend. XIV and the right to a jury trial under U.S. Const.Amend. VI.
2. Defendant sues Defendant Bernie Laforteza (“Laforteza”) in his individual capacity only for declaratory relief only. Laforteza is an agent of California, and is sued vicariously under the doctrines of respondeat superior and ratification for prospective injunctive relief only. This declaratory relief action is cognizant under Title 42 U.S.C. §1983 pursuant to Wilkinson v. Dotson, 544 U.S. 74 (2005).
3. This court has proper jurisdiction pursuant to Title 28 U.S.C. §1367(a), and proper venue pursuant to Title 28 U.S.C. §1391(a)(2); both as Laforteza was the presiding judge on Defendant’s case in its Superior Court In And For The County Of Los Angeles.
GENERAL ALLEGATIONS
4. The instant case was a standard Driving Under the Influence case pursuant to Cal.Veh.Code §§ 23152 (a) and (b) (“DUI”). Defendant had no bad driving record, and was a completely cooperative suspect who was pulled over initially for not having a registration sticker.
5. At the Antelope Valley/Lancaster Court, the standard punishment on a first time DUI offense for those who plead guilty is 3 days of County Jail. The Defendant is given credit for time served and is not forced to go to jail but making up the days of jail by doing Community Labor through the California Transportation Department for up to three (3) days depending on credit.
6. In the instant case, Defendant had used her inhaler which contains alcohol prior to administering the test. Defendant testified that she did use the inhaler but that she could not recall exactly when she used the inhaler in relation to the breath tests that she took. Defendant took both preliminary alcohol screening tests and had readings of 0.20 and 0.19 and evidentiary breath tests one hour later with readings of 0.13 and 0.12. There were no blood tests.
7. The Criminalist for California, Ed Barley (“Barley”) attempted to lie by stating that the inhaler could only increase Defendant’s blood alcohol reading by 0.01 based on a particular article. Barley was later impeached with the same article he was lying based on and shown that the article indicated alcohol based inhalers cause an increase of 0.20 in the blood alcohol reading on breath machines. Barley also could not explain the drastic difference in readings and testified that such a drop is only seen in alcohol detoxification.
8. Prior to the trial, Defendant was offered a plea bargain of 3 days Caltrans labor, standard fines, alcohol and MADD classes However, throughout the trial, Counsel for Defendant was consistently worried that the Laforteza would severely punish her for exercising her right to counsel and a trial as he was passively supportive of the Deputy District Attorney Donna Rappaport when she indicated that the People would seek the maximum if Defendant attempted to exercise her jury trial rights. Counsel was so concerned that prior to the jury’s return, multiple briefs were filed on the subject of bail pending appeal and increased punishment for going to trial
9. Defendant was convicted at a jury trial on March 18, 2010. Despite Laforteza being informed of the law, he sentenced the Defendant to sixty (60) days in jail and gave no reason on the record. When asked for bail, he set the “reasonable” bail at $150,000. The bail schedule for the offense is $5,000 and Defendant was a young nursing student with close community ties.
10. There is no doubt that the sentence was in retaliation for exercising the right to go to trial. Furthermore, counsel for Defendant filed these brief’s because the Antelope Valley/Lancaster Court consistently violates the U.S. and California Constitution in this manner and uses other unconstitutional methods such as remanding Defendants upon conviction and making them serve five (5) days before sentencing, the maximum allowed under the law, to make sure the Defendant gets jail time.
11. Defendant sues as class representative for those similarly situation as persons arrested and prosecuted for crimes in Los Angeles County. The actions brought by the case at bar are best resolved by class action status because they are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. Further, there are predominant common questions of law or fact between all plaintiff’s; Defendant as class representative has claims or defenses typical of the class; and class counsel will adequately s represent the entire class equally as no monetary damages are sought. Thus, all of the requirements of Fed.R.Civ.P. 23 are met for numerosity, commonality, typicality and adequacy of representation of the entire class.

CAUSES OF ACTION
1.
IMPOSING EXCESSIVE BAIL THAT SHOCKS THE CONSCIOUS
IN VIOLATION OF U.S.CONST.AMEND. VIII. EXCESSIVE BAIL CLAUSE (DECLARATORY RELIEF ONLY)
12. Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-11, inclusive, as if alleged and incorporated herein.
13. Defendant and others similarly situated have a constitution right under U.S.Const.Amend. VIII to not have an excessive bail amount imposed on her that shocks the conscious.
14. The standard and customary bail schedule for the offense is $5,000. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a bail of $150,000 for a first time DUI conviction for violating Cal.Veh.Code §§ 23152 (a) and (b), both misdemeanors. This imposition of excessive bail worthy of a violent felony was such that it shocks the conscious and in violation of U.S.Const.Amend. VIII.
15. Laforteza has a policy, pattern and practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing such excessive bail amount on those criminal defendants that come before them prosecuted in violation of U.S.Const.Amend. VIII.
16. A declaration should issue establishing that Laforteza has and does impose excessive fines upon all criminal defendants that come before him that shock the conscious in violation of U.S.Const.Amend. VIII.
//
//
2.
IMPOSING A MORE SEVERE PENALTY IN SENTENCING UPON EXERCISING THE CONSTITUTIONAL RIGHT TO A JURY TRIAL
THAN WOULD BE RECEIVED UPON PLEADING GUILTY IN VIOLATION OF THE DUE PROCESS CLAUSE UNDER U.S.CONST.AMEND. XIV AND THE RIGHT TO A JURY TRIAL CLAUSE UNDER U.S.CONST.AMEND. VI. (DECLARATORY RELIEF ONLY)
17. Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-16, inclusive, as if alleged and incorporated herein.
18. Defendant and others similarly situated have a constitution right under U.S.Const.Amend. XIV to the due process of law to not have a more severe punishment imposed upon them upon any conviction for exercising their constitutional right under U.S.Const.Amend VI to take their case to a jury trial, as opposed to pleading guilty and waiving the right to a jury trial.
19. A plea offer was made by Laforteza before trial that was for of 3 days Caltrans labor, standard fines, alcohol and MADD classes. No additional material facts were proffered at trial which would justify any increased penalty from the plea offer made to Defendant. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a sentence of 60 days in jail, well above the plea bargain offered.
20. Laforteza has a policy, pattern practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing a more severe penalty upon defendants that come before them prosecuted, and who exercise their constitutional right to a jury trial than upon those who plead guilty and waive the right to a jury trial, in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.
21. A declaration should issue establishing that Laforteza has and does impose a more severe penalty upon those defendants who exercise their constitutional right to a jury trial as opposed to leading guilty and waive their right to a jury trial in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.
PRAYER FOR RELIEF
22. Wherefore Defendant and all plaintiffs pray for such relief as follows:
a) A declaration establishing that Laforteza has and does impose excessive bail amounts that shock the conscious upon any criminal defendants that come before them prosecuted for alleged crimes in violation of U.S.Const.Amend. VIII;
b) A declaration establishing that Laforteza has and does impose a more severe penalty upon those defendants coming before them and prosecuted for alleged crimes who exercise their constitutional right to a jury trial that they were offered to plead guilty and waive the right to a jury trial.
c) For attorney’s fees pursuant to Title 42 U.S.C. §1988.
d) For all costs of suit.
` e) For all other such relief as the court deems proper and justified.
Dated this___day of March, 2010 CALIFORIA LEGAL TEAM
________________________
Okorie Okorocha
Attorney for Plaintiff The Defendant and the Prospective Class Members

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Dr. DUI Okorie Okorocha on Government lies in DUIs

April 19th, 2010

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Best DUI Lawyers in California

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DUI Manual by the LAPD

April 19th, 2010

343. UNDER ‑ THE ‑ INFLUENCE DRIVERS.

343.10 DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE ARRESTS. An arrest for driving under the influence shall be made when:

  • An officer witnesses a person commit the elements of driving while under the influence; or,
  • The under‑the‑influence driver was lawfully detained by an officer of this or another law enforcement agency; or,
  • The under‑the‑influence driver was lawfully arrested or detained by a private person who witnessed the driving element of the offense.

An arrest may be made for 23152(a) VC per authority of 40300.5 VC when a traffic collision has occurred but the arresting officer did not witness driving, when:

  • The arresting officer has reasonable cause to believe that a person involved in the traffic collision was driving a vehicle while under the influence of intoxicating liquor, or the combined influence of intoxicating liquor and any drug; and,
  • The arrest is effected as a continuous uninterrupted portion of the investigation.

Note: The arrest shall be limited to the location of the traffic collision or the location of any timely follow‑up investigation.

The element of being under‑the‑influence shall be based on the objective symptoms observed by the arresting officer. Results of other examinations shall be corroborative evidence only.

343.20 SOBRIETY EXAMINATION. The physical phases of the sobriety examination shall be given when an under‑the‑influence driver is able and willing to perform them and, when practicable, shall be conducted at the scene of the incident in the presence of witnesses.

A sobriety examination, as per Form 05.02.05, shall be completed when an officer:

  • Arrests a person whom he/she witnesses commit the elements of driving while under the influence; or,
  • Arrests a driver suspected of being intoxicated who was lawfully arrested or detained by another peace officer or a private person (Manual Section 4/343.10); or,
  • Is investigating a suspect for driving‑under‑the‑influence; or,
  • Is investigating a traffic collision and an involved driver displays any objective symptoms of being under‑the‑influence, regardless of whether the driver is arrested.

When a suspected under‑the‑influence driver refuses to submit to a field sobriety test, the investigating officer shall, read the Field Sobriety Test Admonition to the driver.

343.25 DRIVING – UNDER – THE – INFLUENCE (DUI) DRUG ARREST PROCEDURES.

Arresting Officer’s Responsibility. When an arrest is made for driving under‑the‑influence of drugs or combination of drugs and alcohol, the arresting officer shall:

  • Admonish the arrestee regarding a chemical test as per the Chemical Test Admonition on the DUI Arrest Report, Form 05.02.05.
  • Administer a chemical test to the arrestee.

Note: Whenever possible, a breath test should be administered to determine alcohol intoxication.

  • If the breath test is obtained and the results are .08% or higher, book the arrestee for Section 23152(a) (DUI) V.C. When the results are below .08%, complete the following:
    • Read to the arrestee verbatim the Drug Admonition from the DUI Arrest Report.
    • Obtain a urine or blood sample from the arrestee.

Note: If urine is the only chemical examination administered, officers shall obtain the first void for possible detection of drugs, and the second void for the possible detection of alcohol. Both samples shall be marked accordingly and booked as evidence.

  • If the breath test is obtained and the results are .30% or higher, the arrestee shall be examined by medical personnel pursuant to Manual Section 4/648.17.
  • Request a Drug Recognition Expert (DRE) or, if none available, a Narcotics Expert.
  • If an on‑duty DRE or Narcotics Expert is not available within the concerned bureau, the arresting officer shall obtain an MT for the arrestee and request the examining physician to include an opinion regarding objective symptoms and possible drug ingestion.

Exception: If a traffic death or traffic felony arrest is involved and a DRE or Narcotics Expert is not available within the concerned bureau, the arresting officer shall contact Communications Division and request an on‑duty DRE or Narcotics Expert from anywhere in the City. If no on‑duty DRE or Narcotics Expert is available, the officer shall contact the Administrative Unit, Detective Support and Vice Division, and request that an off‑duty DRE be dispatched.

  • When applicable, include the Drug Influence Evaluation Form (completed by an expert) as a page of the arrest report.

Drug Recognition Expert (DRE)/Narcotics Expert’s Responsibility. A DRE or Narcotics Expert is responsible for evaluating and rendering an opinion of the drug influence of DUI Drug arrestees. As part of that examination, the expert shall:

  • Advise the arresting officer of any additional tests required.
  • Determine if an MT is needed.
  • Complete the Drug Influence Evaluation Form.
  • Enter a brief description of the findings and the examining officer’s name and serial number in the Remarks Section of the Booking Approval, Form 12.31.00.

Note: If during a drug evaluation, the expert determines that he/she is not qualified to render an opinion, the watch commander approving the booking shall determine if another expert should be called.

343.28 ADMINISTRATIVE PER SE ORDER OF SUSPENSION.

343.30 ARRESTING OFFICER’S RESPONSIBILITY. An officer making an arrest for driving-under-the-influence (DUI) shall complete a DUI arrest report in the usual manner and confiscate the California driver’s license of the arrestee when the arrestee:

  • Refuses to submit to and complete a chemical test; or

Note: The Chemical Test Admonition portion must be read to the arrestee in its entirety, even when the arrestee refuses to submit to or complete a chemical test.

  • Takes a breath test which shows a blood alcohol concentration (BAC) level of .08 percent or more; or,
  • Takes a urine or blood test and the officer believes that subsequent test results will show that the driver is at or above a blood alcohol concentration of .08 percent.

Note: Out-of-state/foreign licenses are not included under California law and cannot be confiscated.

Upon completion of the DUI arrest report and confiscation of the arrestee’s California driver’s license, the arresting officer shall complete:

  • A Department of Motor Vehicles (DMV) Officer’s Statement, Form DS367, and write the arrestee’s booking number in the upper right corner; and,
  • A DMV Administrative Per Se Order Of Suspension/Revocation Temporary License Endorsement, Form DS360.

Upon approval of the DUI arrest report and Administrative Per Se documentation, officers shall:

  • Attach page two of the DMV Form DS360 to the DUI arrest report;
  • Issue page three of the DMV Form DS360 to the arrestee; and,
  • Mail the original Form DS367; page one of the Form DS360; the arrestee’s original California Driver License; and Intoxicator EC/IR Operator Checklist, Form 05.20.07, to the DMV location which corresponds with the geographic bureau of arrest.

Note: The law requires that all reports and forms be received by DMV within five working days of the date of arrest.

Page two of the DMV Form DS360, issued to the arrestee, will serve as a temporary driver’s license for 45 days from the date of arrest for an arrestee with a valid California Driver License in his or her possession. Once the arrestee’s driver’s license has been confiscated, the arrestee will have 10 days to request a DMV hearing. Failure by the arrestee to request a hearing will result in an automatic suspension of the arrestee’s California Driver License.

Exception: The arresting officer shall check the “No Temporary License Issued” box on the DMV Form DS360, and complete the explanation why no temporary license was issued, if:

  • The arrestee has an out-of-state/foreign driver license; or,
  • The arrestee has not been issued a valid California Driver License; or,
  • The arrestee’s California Driver License is suspended, revoked, or not in possession.

Packaging Blood or Urine Samples. If an arrestee chooses a blood or urine test, the arresting officer shall follow procedures described in Manual Sections 4/343.40 or 4/343.42. Additionally, the arresting officer shall complete the top half of the DMV Form, DS367A, and mail all three copies of the form to Scientific Investigation Division.

Supervisor’s Responsibility. Supervisors approving DUI arrest reports shall ensure that arresting officers have complied with Administrative Per Se procedures (23158.5 VC), when applicable.

343.33 INDEPENDENT TEST BY QUALIFIED PERSON. When qualified persons appear at the place of confinement by requests of the prisoner (Manual Sections 4/658.12 and 4/658.17) or other person, for the purpose of obtaining a breath, blood, or urine sample, they shall be permitted to do so upon consent of the prisoner.

  • Only a duly licensed doctor, laboratory technologist, bioanalyst, or registered nurse shall be permitted to withdraw a sample of the arrestee’s blood. This limitation shall not apply to the taking of breath or urine specimens;
  • The doctor must be a physician or surgeon (M.D. or osteopath) licensed to practice in the State of California. If there is a question as to the identification of the doctor, Detective Support and Vice Division shall be called to see if the doctor is listed in the Directory of the State Board of Osteopathic Examiners;
  • The laboratory technologists or bio‑analysts must be licensed to practice in the State of California. If there is a question as to their identification, Detective Support and Vice Division shall be called to see if they are listed in the Department of Public Health directory for licensed laboratory technologists and bioanalysts; and,
  • The registered nurse must be licensed to practice in the State of California and must perform the blood extraction under the supervision or at the immediate direction, of a doctor.

A Follow‑Up Report, Form 03.14.00, shall be used, by the officer having custody of the prisoner, to record:

  • The time the telephone call was made by or for the prisoner;
  • The time the person arrived at the place of confinement and requested to see the prisoner;
  • The person’s name, address, and telephone number, including business office address and telephone number;
  • The time the sample was taken;
  • The amount of blood taken as stated by the person;
  • The names and serial numbers of the officers witnessing the telephone call and the taking of the breath, blood, or urine sample;
  • The name of the doctor employing or supervising the registered nurse; and,
  • Any other appropriate information.

343.36 CHEMICAL TEST ADMONITIONS. Prior to administering a chemical test to a driving‑under‑the‑influence arrestee, the Chemical Test Admonition (23157 VC) section of the Driving‑Under‑ The‑Influence Arrest Report, Form 05.02.05, shall be read to the arrestee. The name and serial number of the admonishing officer shall be entered in the space provided in this section.

Note: The Chemical Test Admonition (23157VC) (Spanish) contained in the Los Angeles Police Department Citation Guide, Form 16.65.00, shall be read to Spanish speaking driving‑under‑the‑influence arrestees, by an officer fluent in, and capable of, testifying in Spanish.

After a breath test, if the arrestee is suspected of driving under the influence of alcohol, the Additional Chemical Test Admonition (23157.5 VC) section of the Driving‑Under‑The‑Influence Arrest Report shall be read to the arrestee. The name and serial number of the admonishing officer shall be entered in the space provided in this section. If drug use is suspected, the Drug Admonition of the Driving‑Under‑The‑Influence Arrest Report shall be read to the arrestee instead of the Additional Chemical Test Admonition. The name and serial number of the admonishing officer shall be entered in the space provided in this section.

343.38 BREATH TEST.

Use of Equipment. Breath‑testing equipment is located at Metropolitan Jail Section (Parker Center), Valley Headquarters Building, 77th Street Jail Section, and all geographic Areas except Central, Newton Street, Hollenbeck, and Rampart Areas. Operation of the breath‑testing equipment shall be restricted to personnel who have been trained in its use. Arresting officers not trained in the use of the breath‑testing equipment shall ensure that the examination is administered by an officer trained in its use.

An Intoximeter EC/IR Operator Check List, Form 05.20.07, shall be completed each time the Intoximeter EC/IR is set up for a test and for each subject to whom a test is administered.

Note: Breath‑testing equipment may be used as an investigative aid in driving‑under‑ the‑influence arrests involving narcotics, non‑narcotic drugs, or dangerous drugs, or for other purposes at the discretion of the concerned watch commander.

Watch commanders shall ensure that breath‑testing equipment receives timely calibration by qualified personnel.

Administering Test. Prior to administering the test, the testing officer shall observe the subject for a 15‑minute period, during which the subject shall not have eaten, drunk, smoked, regurgitated, or vomited.

Note: If the subject regurgitates, vomits, eats, drinks, or smokes between samplings, the pre-testing observation shall be repeated.

At least two breath samples shall be collected. (No waiting period is required between samples.) If the readings of the two samples vary more than .02 percentage points, additional samples shall be collected until the results of any two samples are within .02 percentage points. If five samples have been collected and the test is not complete (two samples, within .02 percentage points), the officer shall direct the subject to submit to either a blood or urine test. Failure to complete a test shall be deemed a “refusal.”

Note: Arrestees who obtain a EC/IR reading of .30 percent or higher shall be examined by medical personnel pursuant to Manual Section 4/648.17

Recording Results. The EC/IR test tape shall be separated from the machine only when:

  • The test is completed (two samples, within .02 percentage points); or,
  • Five samples have been collected and the test is not completed.

The date/time stamp shall be applied on the front of the test tape with each sample, and the time of each sampling shall be recorded.

Note: The date/time stamp and the required entries shall not cover any portion of the test results.

The EC/IR test tape shall be stapled to the EC/IR Check List on the space provided. The staple shall be positioned in a manner that will not interfere with reading the test results. When the test tape is longer than the Check List, the tape shall be folded in a manner that will not interfere with reading the test results.

The Intoximeter EC/IR Operator Check List shall be completed by the administering officer and:

  • Attached to the Arrest Report; or,
  • Submitted with the officer’s DFAR and a DUI Arrest Report, Form 05.02.05, when no arrest report is completed.

343.40 BLOOD TEST.

Criteria for Requesting. A blood sample may be requested in the following situations:

  • The arrestee indicates a willingness to submit to a blood test incidental to the arrest; or,
  • The arrestee is in custody for a felony and the level of intoxication would be an essential element in the alleged violation; or,
  • The arrestee is unconscious or is so impaired and is unable to consent to a chemical test. When such a condition exists, the following steps shall be taken in order to determine if the arrestee is a hemophiliac or a heart patient possibly using anticoagulant medication:
    • Check for medical information on the arrestee’s person such as a “Medic Alert” bracelet or necklace, or any other item indicative of the arrestee’s medical background;
    • If a relative or a friend of the arrestee is present who can provide information about the arrestee’s medical condition, record the name, the relationship to the arrestee, and the statements of that person in the arrest report; and,
    • Inform the attending physician of all information in the officer’s possession which may have a bearing on the arrestee’s physical condition.

Requesting Forced Blood Sample Withdrawal. A forced blood sample may be obtained from an arrestee only when all of the following conditions have been met:

  • The arrestee is in custody for a felony traffic offense where the injury occurred to a person other than the arrestee; and,
  • Intoxication is an essential element of the alleged violation; and,
  • The arrestee refuses to voluntarily submit to any of the available chemical tests; and,
  • Prior approval from a traffic supervisor has been obtained; and,
  • A traffic or patrol supervisor is present at the medical facility (e.g., jail dispensary, contract hospital, etc.) to witness the withdrawal of blood from the suspect.

Note: The name and serial number of the approving supervisor and the supervisor present during the forced blood withdrawal, if different from the approving supervisor, shall be written in the arrest report.

Exception: An arrestee whose medical condition prohibits a blood sample from being taken shall not be forced to submit to a blood test.

Traffic Division Supervisor’s Responsibility. Upon being advised of a request for a forced blood withdrawal, the concerned traffic division supervisor shall determine if the criteria for forced blood withdrawal is met.  The approving supervisor, if readily available, should be the supervisor present during the procedure.

The supervisor who is present at the scene of a forced blood withdrawal where the use of force becomes necessary shall ensure that the use-of-force investigation is conducted by a non-involved supervisor.

Requesting Withdrawal. Whenever a blood sample is to be obtained from an arrestee, the arresting officer shall direct a Request for Withdrawal of Blood, Form 04.35.00, to any of the following hospital personnel:

  • Physician.
  • Registered nurse.
  • Licensed clinical laboratory technologist.
  • Licensed clinical bio‑analyst.

Physician or Hospital Employee Refusal. When a physician or hospital employee authorized by Vehicle Code Section 23158 VC refuses to withdraw a blood sample, the officers having custody of the arrestee shall request a supervisor to respond to their location. Upon arrival, the responding supervisor shall:

  • Become familiarized with the situation including a determination that the arrest and officer’s actions conformed with Department policy;
  • Verify the refusal by the hospital employee to withdraw blood; and,
  • Attempt to contact an administrator of the hospital who may advise the refusing employee as to responsibilities according to the contract provisions of the hospital, to the City.

When the employee still refuses to withdraw a blood sample, the supervisor shall then request the arrestee to submit to one of the other two remaining chemical tests. When the arrestee refuses the other tests, the supervisor shall advise the officers to complete the appropriate arrest report, including a notation regarding the absence of a chemical test.

Note: If a hospital employee refuses to withdraw a blood sample and the arrestee declines the remaining tests, the arrestee may be transported to a Jail Division Dispensary to obtain the blood sample.

After the arrestee is booked and all appropriate reports are completed, the concerned supervisor and officers shall each complete an Employee’s Report, Form 15.07.00, recording all pertinent information regarding the refusal to withdraw blood. The completed Employee’s Reports shall be forwarded through channels to Detective Support and Vice Division-Attention Medical Evaluation Unit.

Obtaining and Packaging. The withdrawal of all blood samples shall be witnessed by the requesting officer. Officers obtaining blood samples for alcohol or drug analysis shall, in addition to following the procedures outlined on the Analyzed Evidence To Be Refrigerated Envelope, Form 12.51.01, place the defendant’s booking number above the officer’s serial number when completing the Sealed Evidence Label. If there is no arrestee, the DR number shall be placed in the space above the booking officer’s serial number. When there is more than one suspect and a DR number is used, both the DR number and the last name of the suspect shall be used.

Officers obtaining whole blood samples from hospital employees for other than alcohol or drug analysis shall:

  • Tilt the vial slowly and gently for approximately twenty seconds to ensure the preservative in the vial mixes with the blood;
  • Complete the label on the vial with the suspect’s name, the DR number, and the booking officer’s initials;
  • Check the “Blood Grouping” box on the Analyzed Evidence To Be Refrigerated Envelope, and complete all other applicable reports;
  • Place the vial in the Analyzed Evidence Envelope and seal the envelope with a Sealed Evidence Label bearing the date and DR number and the officer’s payroll signature and serial number signed in ink; and,
  • Affix the Biohazard Label to the upper left corner of the front of the Analyzed Evidence To Be Refrigerated Envelope.

Supervisor Approving. The supervisor approving the booking of the sample shall inspect the sample vial or container label to ensure that the required identifying information is included.

Booking. Whole blood samples shall be booked in the SID courier refrigerated temporary storage locker most convenient for the booking employee. The SID courier shall be responsible for transporting items to be analyzed to SID.

343.42 URINE TEST.

Location Obtained. A urine sample shall be obtained from a male arrestee at the booking location, and from a female at:

  • Female Jail Unit, Valley Section, when arrested in West Los Angeles, Pacific, or the Valley Areas; and,
  • The Area of arrest, when arrested in the metropolitan area.

Administering Test. An officer or detention officer of the same sex as the arrestee shall:

  • Escort the arrestee to an appropriate restroom facility;
  • Instruct the arrestee that he/she must empty his/her bladder;
  • Remain present while the arrestee empties his/her bladder;
  • Wait twenty minutes, or as soon as possible thereafter, before attempting to collect a urine sample;
  • Provide the arrestee with a pretreated urine sample container;
  • Ensure that the container is not rinsed prior to sample collection;
  • Remain present while the arrestee provides a urine sample; and,
  • Ensure that the label identifying the chemist responsible for preparation of the container is not removed.

Note: A protective glove shall be worn when handling a urine sample.

The Driving‑Under‑the‑Influence Arrest Report (Continuation), Form 05.02.05, shall indicate:

  • The time the bladder of the arrestee was first emptied,
  • The time the urine sample was collected, and,
  • The name of the employee who administered the urine test.

Note: When an arresting officer becomes aware that an arrestee has emptied his/her bladder after coming into the custody of the officer, the twenty‑minute waiting period shall begin at the time the bladder was first emptied. The time and circumstances of the emptying shall be recorded on the Driving‑Under‑the‑Influence Arrest Report (Continuation), Form 05.02.05.

Booking Sample. The officer booking a urine sample shall:

  • Ensure that the lid is placed tightly on the container;
  • Place a completed Sealed‑Evidence Label on the side of the container, and place the defendant’s booking number above the officer’s serial number when completing the Sealed‑Evidence Label. If there is no arrestee, the DR number shall be placed in the space above the booking officer’s serial number. When there is more than one suspect and a DR number is used, both the DR number and the last name of the suspect shall be used;
  • Complete the Analyzed Evidence To Be Refrigerated Envelope, Form 12.51.01, and check the appropriate box, “Alcohol Analysis” or “Drug Analysis;”
  • Place the container in the Analyzed Evidence Envelope;
  • Seal the flap of the envelope with a completed Sealed Evidence Label; and,
  • Affix the Biohazard Label to the upper left corner of the front of the Analyzed Evidence Envelope.

Alcohol and/or opiate urine samples shall be booked in the SID courier refrigerated temporary storage locker most convenient for the booking employee. The SID courier shall be responsible for transporting items to be analyzed to SID.

Supervisor Approving. The supervisor approving the booking of the sample shall inspect the sample vial or container label to ensure that the required identifying information is included.

343.57 REFUSAL TO SUBMIT TO OR COMPLETE CHEMICAL TEST – NOTIFICATION TO DMV. When a person who has been arrested for operating a motor vehicle while under the influence of intoxicating liquor and/or drugs refuses to submit to or complete a chemical test, the arresting officer shall mark the left margin of the related Driving‑Under‑The‑Influence Arrest Report, “Copy to Bureau Traffic Division Auditor.”

343.60 DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE ARREST-OFFICER REPORTING. When an arrest is made for any offense committed while driving a vehicle under the influence of alcohol and/or drugs, one officer shall normally complete the report and be prepared to testify regarding all phases of the arrest. That officer’s name shall be placed in the upper portion of the “Reporting Officer’s” box on page 1 of the Arrest Report and in the appropriate boxes of Form 05.02.05.

343.65 MISDEMEANOR TRAFFIC COLLISION RELATED DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE BOOKINGS. When an arrestee involved in a traffic collision is booked for driving under the influence (23152(a) VC) the officer responsible for completing the arrest and traffic collision reports shall cause the arrest report and a copy of the traffic collision report to be submitted together at the location of booking for processing and distribution.

Exception: When the arrestee is booked into the Los Angeles County‑USC Medical Center jail ward or Los Angeles County Jail, the reports shall be submitted to the approving supervisor at the Communications Division Telephonic Report Counter, Parker Center.

Note: Records unit personnel shall ensure that one copy of the Traffic Collision Report is forwarded, with the copies of the DUI arrest report, to the appropriate custodial detention officer. The original reports and subsequent copies shall be processed and distributed according to current procedures.

343.70 DRIVING – UNDER – THE – INFLUENCE BOOKINGS. A teletype request shall be sent to DMV concerning each arrestee booked for 23152(a) VC. This request shall be teletyped by divisional record clerks immediately upon receipt of the Booking and Identification Record, Form 05.01.00, from the location of the arrestee’s detention. Requests may be sent using either the driver’s license number or the full name of the arrestee.

When using the driver’s license number, the teletype shall be sent in the following form:

  • ID.
  • (Information code, driver’s license number.)

When no driver’s license number is available, the teletype shall contain: (Manual Section 4/155.15)

  • STATUS AND RECORD.
  • Arrestee’s full name.
  • Arrestee’s address.
  • Arrestee’s birthdate (if unknown, give age).

Teletype requests shall originate from the division at which the arrest reports are completed for distribution. The employee shall use the appropriate teletype code to ensure that the docket number and the court of prior conviction, if applicable, appear on the reply from DMV. The employee making the inquiry shall attach the return teletype information to the court copy of the arrest report and forward them to the detention officer having custody of the arrestee.

344. TRAFFIC CASES INVOLVING PHYSICIANS.

344.50 ARREST OF PHYSICIAN ENROUTE TO TREAT EMERGENCY CASE. When a physician is taken into custody while enroute to treat an emergency case, the arresting officer shall immediately cause the patient to be notified. If this is not possible, the person who summoned the physician shall be notified.

A physician traveling in response to an emergency shall be exempt from the provisions of Vehicle Code Section 22351 (Speed Law Violations) and 22352 (Prima Facie Speed Limits), if the vehicle so used by the physician displays an insignia approved by the Department of Motor Vehicles indicating that the vehicle is owned by a licensed physician (21058 VC).

Note: The caduceus, symbol of the American Medical Association, is the approved insignia.

346. TRAFFIC CASES INVOLVING JUVENILES.

346.10 CITING PROCEDURE – TRAFFIC NOTICE TO APPEAR (CITATION). When a juvenile is issued a Traffic Notice to Appear, Form 04.50.00 for a moving or non‑moving violation, the juvenile shall be advised that a parent or guardian’s presence is required when at Juvenile Traffic Court in answer to the citation.

346.20 REFUSAL TO SIGN CITATION – JUVENILES. When a juvenile refuses to sign a citation, the juvenile shall be processed according to Manual Section 4/334.40.

346.40 MISDEMEANOR TRAFFIC VIOLATION – JUVENILE ARRESTED. When a juvenile is booked for a misdemeanor Vehicle or Municipal Code (traffic-related) violation, the arresting officer shall:

  • Complete a Traffic Notice to Appear in the normal manner and have the juvenile sign the citation.
  • Cite the juvenile to the morning or afternoon session (Manual Section 4/320.45) of the Juvenile Traffic Court on the appropriate citing date.
  • Give the juvenile the defendant’s copy.

Note: If the juvenile is to be released to a parent or guardian, the defendant’s copy of the citation should be given to the parent or guardian at the time of release.

  • Complete an Arrest Report, Form 05.02.00, and include the citation number and the notation that the court copy of the citation is attached to the investigating officer’s copy of the arrest report.
  • Attach the court copy of the citation to the arrest report.
  • When the juvenile is to be released to a parent or guardian, provide the adult with a copy of the Juvenile, Notice to Appear, Form 09.03.00.

Exception: Juveniles arrested for violation of Section 23152 VC shall be processed in the same manner as a non‑traffic misdemeanor arrest. A Traffic Notice to Appear shall not be issued for driving under the influence.

The investigating officer shall:

  • When the juvenile is not detained, forward one copy of the arrest report and the court copy of the citation to Traffic Court Liaison, Traffic Coordination Section.
  • When continued detention is deemed necessary, process the detained petition request, court copy of the citation, and related reports in the same manner as a detained petition request for any other charge.

346.45 JUVENILE OFFENSES INVOLVING ALCOHOL. Officers citing a juvenile for a violation of 23140(a) VC shall:

  • Document probable cause for administering the Intoximeter EC/IR Test in the narrative section of a Traffic Notice to Appear or on a Continuation of Notice to Appear, if necessary;
  • Write the corresponding citation number in the box entitled “DR NO.” in the upper right corner of the completed Intoximeter EC/IR Operator Check List, Form 05.20.07;
  • Attach the completed Form 05.20.07 to the Traffic Notice to Appear “court copy” (green), and forward it to the appropriate Juvenile Traffic Court; and,
  • Release the juvenile to a parent or guardian.

Note: Section 23140(a) VC does not require a Field Sobriety Test (FST); however, should an officer administer an FST, the results of the FST shall be documented on a Driving-Under-the-Influence Arrest Report (Continuation), Form 05.02.05. The completed Form 05.02.05 shall include the corresponding citation number in the upper right corner in the box entitled “DR” and be attached to the Traffic Notice to Appear “court copy” (green) and forwarded to the appropriate Juvenile Traffic Court. Enforcement of Section 23140(a) VC does not preclude the enforcement of 23152(a) VC, Driving-Under-the-Influence of Alcohol or Drugs.

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California DUI and California DMV Laws

March 23rd, 2010

JACK EDWARD BURGE, Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants.

Docket No. A053672.

Court of Appeals of California, First District, Division One.

April 9, 1992.

387 COUNSEL

OPINION

STEIN, J.

The Department of Motor Vehicles (DMV) issued an order suspending the driver’s license of Jack Edward Burge on the ground that 388 Burge had driven with a blood-alcohol concentration greater than.08 percent. Burge challenged that order at a DMV administrative hearing. The hearing officer determined that the evidence supported the order and upheld the suspension. Burge thereafter petitioned the superior court for a writ of mandate directing the DMV to set aside its order. The writ was granted, and the DMV appeals. Finding that the trial court’s decision was not supported by substantial evidence (see Coombs v. Pierce (1991) 1 Cal. App.4th 568, 576 [2 Cal. Rptr.2d 249]), we will reverse.

(1a) This appeal concerns the type of evidence which may be relied upon by a hearing officer considering if a DMV’s order of suspension was properly issued. At issue here is the hearsay statement of the police officer who arrested Burge and a printout record of the intoxilyzer test administered to him. Questions relating to the use of such evidence at DMV hearings have been the subject of recent cases, and certain principles have been developed.

(2) First, the DMV has the evidentiary burden of justifying its order of suspension. (Coombs v. Pierce, supra, 1 Cal. App.4th at pp. 580-581, citing Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532, 536 [189 Cal. Rptr. 512, 658 P.2d 1313].) (3) Second, the hearsay statement of a public employee, such as the statement of a police officer, or the tester’s written report of the results of a blood-alcohol test, is admissible at the hearing, and is sufficient in and of itself to support a finding, if it meets the criteria of a public employee business record (Evid. Code, § 1280). (Imachi v. Department of Motor Vehicles (1992) 2 Cal. App.4th 809, 813-815 [3 Cal. Rptr.2d 478].) This principle arises from the provisions of Government Code section 11513 providing that hearsay evidence may provide the sole supporting evidence for a finding, if such evidence would be admissible over objection in a civil action. A police officer’s hearsay statement, submitted in accordance with Vehicle Code section 13353 (sometimes called a DL 367 statement as it is executed on DMV Form DL 367) ordinarily meets the criteria for the public employee business record exception to the hearsay rule: (1) that the statement be made by and within the scope of duty of a public employee at or near the time of the act, condition or event, and (2) that the sources of information and method and time of preparation are such as to indicate the statement’s trustworthiness. (Imachi v. Department of Motor Vehicles, supra, 2 Cal. App.4th at pp. 814-815, citing Snelgrove v. Department of Motor Vehicles (1987) 194 Cal. App.3d 1364, 1374-1376 [240 Cal. Rptr. 281].) Such a statement, therefore, would be admissible in a civil action and accordingly is sufficient evidence to support a finding. Similarly, the written report of the results of a blood-alcohol test, prepared on behalf of law enforcement agencies by a licensed laboratory, ordinarily meets the criteria for a public employee business record and provides sufficient support for a finding that a licensee’s blood-alcohol concentration was as stated 389 in the report. (Imachi, supra, at pp. 816-817.) Public employee business records, however, are admissible in civil actions only to the extent that they report the employee’s firsthand knowledge. These statements, therefore, may form the sole basis for suspension of a driver’s license only if made from firsthand observation. (Id. at p. 817.)

(4) In addition, tests performed by authorized laboratories are presumptively valid; i.e., the DMV need not present foundational evidence that the test apparatus was in working order, the test was properly administered and the operator was competent and qualified. Once a report of such a test is admitted, the burden passes to the party challenging it to show that the test was in some way flawed. (Imachi v. Department of Motor Vehicles, supra, 2 Cal. App.4th at pp. 816-817.)[1] Finally, the principles set forth in People v. Kelly (1976) 17 Cal.3d 24 [130 Cal. Rptr. 144, 549 P.2d 1240] and Frye v. United States (D.C. Cir.1923) 293 Fed. 1013, requiring foundational evidence as to the general acceptance of a new scientific method of proof, are inapplicable to well-accepted methods of testing blood alcohol. (Imachi, supra, at p. 817, fn. 6.)

(1b) Under these principles, the superior court erred in finding that the evidence did not support the order of suspension. The only evidence submitted at the DMV hearing, by either party, was documentary evidence submitted by the DMV. This evidence included the DL 367 statement of the arresting officer, M. Boyle. That evidence, admissible in a civil action as a public employee business record, and uncontradicted by Burge, established that the officer had observed Burge tailgating another vehicles, that Burge exhibited bloodshot and watery eyes, an odor of alcohol and slurred speech, and that his performance on the field sobriety tests was poor.

390 The DMV also introduced an intoxilyzer test result reporting that Burge’s blood-alcohol concentration had been tested at .12. The test record was signed by Officer Boyle as the operator, and was printed “Alameda County Sheriff’s Department Criminalistics Laboratory.” This record, accordingly, is exactly the type of report found admissible by the court in Imachi.[2] It meets the criteria of a public employee business record, it is subscribed by a person having firsthand knowledge of the matters stated therein and, absent challenge by Burge, it was unnecessary for the DMV to lay a foundation for its admission.[3]

It follows that the DMV’s evidence established the presumption that Burge’s blood-alcohol concentration exceeded permissible limits. As Burge introduced no evidence contradicting the presumption that the tests had been properly performed, the hearing officer and the superior court had to accept that presumption as true.

(5a) Burge argues that the evidence is insufficient because, as it does not include a statement of the time of the test, it does not establish that his blood-alcohol concentration exceeded.08 percent at the time that he was driving. The argument is without merit. Officer Boyle’s statement was that Burge had been arrested on December 7, 1990, at 11:01 p.m. The intoxilyzer test record indicates that the test was given by the same officer on December 7, 1990. The record also reports that Burge was first observed at 11:01 and that he was observed for 15 minutes before the test was given. It follows that the test was given within 45 minutes of Burge’s arrest (i.e., a test given more than 1 hour after Burge was first observed would have been given on Dec. 8). Accordingly, there is evidence of the time of the test. In addition, there was evidence that Burge exhibited all the indicia of significant intoxication at the time that he was arrested. This evidence, coupled with evidence of blood-alcohol level within one hour of driving, supports the hearing officer’s 391 finding that Burge’s blood-alcohol concentration exceeded .08 percent at the time that Burge was driving.

(6a) In addition, Vehicle Code section 23152, subdivision (b) sets forth a rebuttable presumption as to “any prosecution under this subdivision” that “the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.” Burge argues that the subdivision may not be read as establishing a presumption for any proceeding other than prosecution under section 23152, i.e., that it may not be used as evidence in an administrative hearing. Such a construction would, we think, be contrary to the evident purpose of the Legislature in creating the presumption. Thus, the Legislature, recognizing in fact that breath tests taken within three hours after driving accurately reflect blood-alcohol concentration during driving, determined that independent proof of this fact need not be offered. We can see no reason why the Legislature would choose to accept the fact as presumptively established in criminal prosecutions but not in administrative proceedings. (7) “`The courts must give statutes a reasonable construction which conforms to the apparent purpose and intention of the lawmakers.’ [Citation.]” (Webster v. Superior Court (1988) 46 Cal.3d 338, 344 [250 Cal. Rptr. 268, 758 P.2d 596].) “A court may look beyond the literal words of a statute when plain meaning leads to unreasonable results inconsistent with the purposes of the legislators. [Citation.]” (Love v. Superior Court (1990) 226 Cal. App.3d 736, 745 [276 Cal. Rptr. 660].) (5b, 6b) We therefore hold that the presumption of section 23152 applies to DMV hearings and, in the present case, established the rebuttable presumption that Burge’s blood-alcohol concentration exceeded permissible levels when he was driving.

The DMV, accordingly, made a prima facie showing at the administrative hearing that Burge had been driving with a blood-alcohol concentration in excess of .08. The burden then shifted to Burge to dispute that showing, if he could. Burge submitted no evidence. The superior court therefore was without basis to find that the DMV had failed in its burden of proof.

The judgment granting the writ of mandate is reversed.

Strankman, P.J., and Dossee, J., concurred.

A petition for a rehearing was denied May 5, 1992, and respondent’s petition for review by the Supreme Court was denied June 25, 1992.

[1] The court in Imachi found “Chemical tests to determine blood-alcohol concentration at the time of arrest are performed by forensic laboratories which must comply with procedures set out in the California Code of Regulations. (Health & Saf. Code, § 436.50; Cal. Code Regs., tit. 17, §§ 1215-1220.4.) These regulations include requirements for forensic laboratories and analysts, collection and handling of samples and methods of analysis. Methods of analysis must be in accord with specified standards of performance and procedure (including the requirement that instruments used for alcohol analysis must be in good working order and be routinely checked for accuracy and precision (Cal. Code Regs., tit. 17, § 1220.2, subd. (a)(5)) as well as a quality control program adopted by the Department of Health Services. (Cal. Code Regs., tit. 17, §§ 1220.1, 1220.2, 1220.3.) The actual written report of [such a test] performed by a licensed forensic laboratory on behalf of a law enforcement agency would presumably fall within the public employee records exception to the hearsay rule: The record of the test result would be `made by and within the scope of duty of a public employee,’ `at or near the time of the act, condition, or event’ and the requisite indicia of trustworthiness would be supplied by the fact that the analyst was reporting firsthand observations as well as by the presumption of official duty regularly performed. (Evid. Code, § 664.) Accordingly, faced with a report of chemical test results, the burden would be on the licensee to demonstrate that the test was not properly performed.” (Imachi v. Department of Motor Vehicles, supra, 2 Cal. App.4th at pp. 816-817, fn. omitted.)

[2] The problem in Imachi was not that the test report itself was inadmissible, but that the DMV failed to introduce it. Rather, the DMV attempted to support the finding of blood-alcohol concentration with nothing more than the nonoperator police officer’s statement. “While the [officer's] statement is admissible as a public employee record to the extent it reports the officer’s firsthand observations [citations], the hearsay within the statement could not be the sole basis for suspension of appellant’s driver’s license. [Citations.]” (Imachi v. Department of Motor Vehicles, supra, 2 Cal. App.4th at p. 817.) In the present case, in contrast, not only was the report itself put into evidence, but the police officer’s statements as to blood-alcohol concentration (reported on the DL 367 form) were made from firsthand observation.

[3] Contrast Coombs v. Pierce, supra, in which the licensee introduced evidence that the laboratory which performed the intoxilyzer test was not licensed to use the apparatus at issue. This evidence rebutted the inference that the test was properly administered, requiring the DMV to introduce independent evidence of reliability. The DMV failed to do so and the appellate court concluded that the finding of blood-alcohol concentration was not supported. (Coombs v. Pierce, supra, 1 Cal. App.4th at pp. 579-581.)

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Newport Beach DUI Lawyers Networked Blog

March 13th, 2010

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Started trial number 5.

March 11th, 2010

I am in the 5th trial of the year so far (that was fast). This one is in Lancaster.

Kind Regards,

Okorie Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry
Pasadena – Newport Beach – Santa Barbara – San Diego
toll free: 800 285 1763
toll free Fax: 888 286 1840

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys –  http://www.cprslaw.com/

 Newport Beach DUI Specialists — http://www.calegalteam.com

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Newport Beach DUI Specialist Lawyer Dr. DUI: Raw will Interview on the DUI eye test

February 26th, 2010

I am in the 5th trial of the year so far (that was fast). This one is in Lancaster.

Kind Regards,

Okorie Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry
Pasadena – Newport Beach – Santa Barbara – San Diego
toll free: 800 285 1763
toll free Fax: 888 286 1840

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys –  http://www.cprslaw.com/

 Newport Beach DUI Specialists — http://www.calegalteam.com

You are pulled over for a DUI in Newport Beach eight test the officer will always give you is the HGN  also known as the eye test or the horizontal gaze nystagmus test this test is completely based on junk science if you’re ever pulled over for a DUI in Newport Beach do not take this test unless you are required to as a condition of your parole or probation the results of the cast are completely unreliable because nystagmus is caused by many other things other than the consumption of alcohol it can be caused by just about any prescription medication that you are gone by changes in pressure in your inner ear by anything other than a DUI alcohol or anything of that nature so under any circumstances you should never take the test on the test is not reliable it’s admissible in court and can only hurt you and you are not required to unless you are simply required to from her previous court order for probation or parole do not take this test it can only hurt you it is not required it’s based on junk science nystagmus actually has about 57 causes the real name is lateral gaze nystagmus is attested should only be administered by highly trained and highly specialized medical doctors such as in the Rolla just knock them all and just not highway patrolman or other law-enforcement officers with no medical training whatsoever

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Sex is more dangerous than alleged DUIs

February 23rd, 2010

I am in the 5th trial of the year so far (that was fast). This one is in Lancaster.

Kind Regards,

Okorie Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry
Pasadena – Newport Beach – Santa Barbara – San Diego
toll free: 800 285 1763
toll free Fax: 888 286 1840

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys –  http://www.cprslaw.com/

 Newport Beach DUI Specialists — http://www.calegalteam.com

Sex is more dangerous than drunk driving!!!!!!! Proof:

http://www.cprslaw.com/Dr_DUI_Facts_Dr_DUI_on_DUI_Statistics.html

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