Another One Bites the Dust!!

Today we were set to hear a motion in Tulare County, California regarding my client's detention and subsequent DUI arrest, after playing his stereo too loud.  My motion was based upon the contention that the officer could not have possibly heard my client's stereo from the distance he was claiming and the distance the officer stated he heard my client's stereo from, was not ascertainable based upon any sort of actual measurement.  Well, the District Attorney was unable to get the officer to the hearing because he was on administrative leave.  They claimed that his status on administrative leave gave them good cause for a continuance (see Penal Code section 1050), I argued that it was not good cause for a continuance and the District Attorney had been derelict in subpoening the officer. The court agreed, but asked how could I proceed with the motion without my client being present.  I referred the court to Penal Code section 977 that allows an attorney to appear on a misdemeanor case without the client present at all stages of the proceeding (see Penal Code section 977(a)(1)).  The court then asked me how I could proceed without presenting any evidence, since it was my motion.  I referred the court to the court file and asked the court to take judicial notice of the fact that there was no search warrant filed in the case.  Without a search warrant the burden shifts to the prosecution under People v. Williams to establish that the detention was justified based upon an exception to the warrant requirement.  Without the arresting officer there, the prosecution could not meet this requirement and the court dismissed the case.

-Mike Mitchell

Posted October 15, 2008

DUI at the Motorcycle Rally Dismissed!!

This last thursday, I was with my client in court when we had the pleasure of watching the District Attorney dismiss his DUI case.  My client had the misfortune of coming to Fresno during a motorcycle rally and was arrested for a DUI, despite the fact that there were more than 30 witnesses!!, who were willing to testify that he was not driving.  We investigated and obtained declarations from 13 of the 30 witnesses that my client had not been driving.  One of the witnesses was an off-duty police officer from Long Beach, California.  We also had pictures of the motorcycle rally, which showed my client had been parked in the same location for the entire afternoon.  Luckily, we were able to help put this nightmare and miscarriage of justice to rest.  After presenting the evidence to the Deputy District Attorney and explaining that we were ready to present our case at trial, she agreed to dismiss.

-Mike Mitchell

Posted October 12, 2008

Amazing Victory!!

A couple of months ago I mentioned an awesome win we had at DMV for a client of ours who was a servicemen and living on the Lemoore Naval base.  Today, our motion to suppress the evidence obtained in his case, based on our contention that he was illegally detained, was heard in the Superior Court in Hanford, California. Here's what happened, our client was arrested on suspicion of a DUI after allegedly driving to a friends house on base and "crashing" on his friends couch.  He woke up to the Naval police banging on the door.  Shortly thereafter, he was arrested for suspicion of DUI.  The CHP were called out to investigate and conducted field sobriety tests and a breathalyzer showing our client's Blood Alcohol level was a .18.  Here's the incredible part, after that the CHP officer put our client in handcuffs, he our client over to another friend's house.  This other friend, who we'll refer to as Mr. Smith, was instructed by the CHP officer to place our client under a citizen's arrest, because allegedly Mr. Smith had observed our client driving under the influence and had called 911.  However, upon cross examination in court, Mr. Smith admitted that he did not actually observe our client driving under the influence prior to calling 911. Needless to say, after our motion was heard, the court found that there was insufficient evidence to establish that Mr. Smith had sufficient probable cause to perform a citizen's arrest.  After that, the court granted our motion to suppress the evidence in the case, namely our client's blood test result and the District Attorney was forced to dismiss the case.  Absolutely amazing!!

-Mike Mitchell

Posted August 28, 2008.

 Successful DMV Decision for Under 21 Client 

This last Thursday I attended a DMV hearing on behalf of an under-21 client cited for DUI.  Really the issue was pretty straightforward.  My client had a .021 BAC, which is not much of a big deal if you are over 21.  However, if you happen to be under 21 it can cost you your driving privilege for up to a year.  Fortunately for my client, we obtained the calibration records from the Breathalyzer which showed the machine had not been properly calibrated as required by the California Code of Regulations.  The regulations require the machine to be calibrated evey 10 days or 150 tests, whichever comes first.  The records showed that this device had not been calibrated within the specified number of days or the specified number of tests. The DMV hearing officer, seeing the fact that the breathalyzer was "out of whack" should be given a hand for following the law.  After seeing the records the hearing officer found in favor of my client and lifted the suspension of her driver's license as a result of this stop.

-Mike Mitchell

Posted August 23, 2008.

Motion to Suppress Granted, Case Dismissed!!

Back in March I mentioned in the "Dui Discussion" that I had filed a motion to suppress based on the fact that my client was stopped due to an anonymous tip that my client had impersonated an officer inside a local drinking establishment.  Of course, the officer was not looking to stop him for driving under the influence. After the stop, however, my client found himself charged with DUI. The tip did not furnish specific details regarding how my client had "impersonated" an officer in violation of the law.  Based on the U.S. Supreme Court Decision in Florida v. J.L. and the California Supreme Court decision in People v. Wells, I moved to suppress the evidence obtained due to my client's illegal seizure.  This evidence, consisted of the breathalyzer results obtained by the Fresno Police Department officers, the results of the field sobriety tests he performed, the visual observations of the officers, as well as statements he made regarding how much he had to drink.  Last week, after cross-examining both the dispatch operator and the officer who conducted the stop, my client's motion to suppress was granted by the court.  Today, the prosecution moved to dismiss the DUI case against my client due to the decision of the court leaving the prosecution with a lack of evidence.  When you get an astounding outcome like this it makes it all worth while.

-Mike Mitchell

Posted June 6, 2008

Boating Under the Influence Section Added to Website!

Last weekend, Chicago Bears running back Cedric Benson made headlines when he was arrested for boating under the influence (BUI) on Lake Travis near Austin, Texas.  According to the arrest report, Mr. Benson refused to follow the officer’s orders and was subsequently pepper sprayed.  After reading about Mr. Benson’s situation, it occurred to me that summer time is almost upon us.  With thoughts of water-time activities running through my head, I decided to write a little bit about the charge of boating under the influence.  Locally, here in California’s Central Valley, we are surrounded by several local lakes; Bass Lake, Shaver Lake, Millerton Lake, Hensley Lake and Pine Flat- just to name a few.  Typically, those cited for boating under the influence are prosecuted under the Harbor and Navigation Code.  The Harbor and Navigation Code contains several sections which parallel the California Vehicle Code in its treatment of DUI drivers.  In the sprit of summer time fun, we’ve added a new section to our website to inform those charged with Drunk Boating or those who are merely interested in the subject. Find more information on boating under the influence (BUI) on our new web page (more)…

New DUI Case out of the Fourth District Court of Appeal

In a recent opinion entitled People v. Smith and published on March 28, 2008, the Fourth District Court of Appeal in California decided that an acquittal in one trial for driving with a blood alcohol level of .08 or more (Vehicle Code section 23152(b)), bars consideration of that issue in a subsequent trial for a violation of Vehicle Code section 23152(a).  In Smith, appellant Craig Smith was acquitted of a violation of Vehicle Code section 23152 (b), sometimes referred to as "per se" DUI by submitting evidence of a "rising blood alcohol defense," by drinking immediately after an accident.  The jury was unable to reach a unanimous decision on the other count of driving while under the influence, sometimes referred to as "generic dui."  Due to the jury indecision sometimes called a hung jury, Mr. Smith was retried on the charge of Vehicle Code section 23152(a).  Smith was convicted on retrial.  On appeal, he argued that the trial court erred when it instructed the jury that a .08 or more blood alcohol level creates a permissive presumption of driving under the influence. The appellate court agreed and reversed. Based on collateral estoppel principles, the appellate court found that the jury improperly considered whether Smith drove with a .08 or above blood alcohol level. The first jury's finding that the prosecution did not prove that Smith drove with a blood alcohol level of .08 or above was binding on the prosecution in the second trial and could not be relitigated. Further, the jury should have been instructed to presume his blood alcohol level was less than .08 while driving since the first jury decided that Mr. Smith had not been driving with a .08 or more in the first trial.  Based on these errors the judgment was reversed.

Posted April 22, 2008

VICTORY AT THE DMV ON A .18 BAC

Posted March 19, 2008

I just received notice this afternoon that the DMV is reinstating my client's license following our success at the DMV hearing on March 17, 2008.  Client's license was reinstated despite a blood test showing a .18 percent (%) blood alcohol concentration (BAC).  The issue was the officer allegedly received a call from an out of court witness that my client was "intoxicated" and driving a vehicle.  The officer never observed my client driving a vehicle and the alleged citizen who observed my client driving was as drunk as my client!  He didn't have anything on his person that would enable him to tell what time he saw my client driving the vehicle.  In addition, he could only approximate the time that he saw my client driving.  DMV requires that the driving occur within 3 hours of the chemical test.  In my client's case, the time of driving could not be established with any accuracy.  Accordingly, the DMV found that my client was not lawfully arrested and there was no evidence to establish that he was actually driving a vehicle with a .08% blood alcohol concentration of alcohol (BAC) in his system.  The DMV, therefore, returned my client's license and terminated his suspension. 

-Mike Mitchell

MONEY PAID TO VICTIM IN DUI/GREAT BODILY INJURY CASE

Posted March 14, 2008

New DUI case, fresh off the press!!  In a case decided March 4, 2008 by the Third District Court of Appeal entitled People v. Short, the court of appeal decided that money paid to the victim for restitution as a result of a DUI involving great bodily injury must be offset by any money paid to that victim as a result of a personal injury settlement.  In this case, the Defendant, Short, was convicted of causing great bodily injury while driving under the influence. The crime occurred while Short was driving his employer's vehicle. The victim filed a personal injury civil action against Short and his employer. To settle that lawsuit, the employer's insurer paid the policy limits of two insurance policies totaling $3 million dollars, and the victim entered into a settlement with Short and his employer.  The third district court of appeal found that any money that the criminal court ordered Short to pay for restitution to the victim as a result of the DUI with great bodily injury had to be reduced by the amount of thes ettlment.  The terms of the insurance policy covered Short while he drove his employer's vehicle, and the insurance settlement listed Short as being released from any claims as a result of the accident. The insurance settlement was viewed by the Court of Appeal as coming directly from the defendant. 

-Mike Mitchell

TWISTING ANONYMOUS TIPSTER CASE TO OUR ADVANTAGE

Posted March 3, 2008

In, People v. Wells, a recent case decided by the California Supreme, the high court once again stretched the boundaries of the fourth amendment to allow a CHP officer to conduct a DUI traffic stop based on an anonymous tip despite the lack of verification of any bad driving to support the tip prior to conducting the stop.  The California high court based its decision in large part due to the "grave and immediate" danger to the public of an intoxicated driver who is reported swerving all of the road.  The court did not think it was of any consequence that the CHP officer did not observe any erratic driving by the motorist prior to the stop since driver's will supposedly be on their best behavior when they see a police car.  It is an absurd notion that a driver is so drunk or intoxicated that one minute they are all over the road and the next minute they can sober up to recognize a police car following them and exercise "increased caution."  Also, the court found the unverified stop was justified based on the fact that the CHP officer immediately conducted the traffic stop once he spotted the suspected driver.  Isn't that circular reason, because the CHP officer spotted the driver within minutes of the anonymous tip, wouldn't he then be in a position to observe the same alleged swerving and other bad driving that the tipster saw?

Although this case clearly is based on some questionable logic, I recently filed a motion to suppress the evidence in a DUI case I have pending in Fresno Superior Court using this case as support for my motion.  You might ask, how is it you can use a case like this to help a suspected DUI driver?  The answer is that in my client's case, the anonymous tip concerned an incident at a local bar where he allegedly "impersonated an officer" and was stopped almost an hour after the bar closed at 3:00 am.  My client was stopped a few miles away from the bar.  Even If the tip was true, that my client impersonated an officer at the bar and left, clearly, there was no imminent or grave public danger at that point.  Under the holding of People v. Wells, the officer was not justified in conducting a traffic stop at that point.  There was no "grave and immediate" danger to the public that warranted an traffic detention based on an uncorroborated tip.  I guess we'll know at the end of this month what the outcome will be.  If successful, the motion to suppress will result in any and all evidence of field sobriety tests and breathalyzer testing, as well as observations of the officers being "suppressed," or effectively eliminated and cannot be used against my client.  If the motion is granted by the court, this may result in the case being dismissed since the district attorney will have insufficient evidence to proceed to trial.

- Mike Mitchell

The Law Office of Michael E. Mitchell defends clients charged with Criminal and DUI / DWI and traffic offenses in California's Central Valley and San Joaquin Valley, including Fresno County, Tulare County, Merced County, Madera County, County of Kings, Mariposa County, Fresno, Tulare, Merced, Madera, Kings County, Mariposa, Visalia, Hanford, Dinuba, Los Banos, Selma, Kingsburg, Clovis, Sanger, Reedley, Kerman, Parlier, Coalinga, Firebaugh, Fowler, Mendota, Visalia, Avenal, Corcoran, Lemoore and Lemoore Naval Air Station (NAS), Porterville, Bass Lake, Shaver Lake, Yosemite National Park, Sequoia National Park.  We also defend motorists pulled over for traffic violations along San Joaquins roads and highways including interstate 5 and highways, 49, 41, 99, 168, 192, 180.