Terrorism, Politics and the Demise of Good Police Work

Posted on December 27, 2013 by admin

Sinh Vinh Ngo Nguyen, a 24-year-old security guard from southern California was convicted on Friday of making false statements on a passport application and attempting to provide material support to the enemy. The problem with this case is that it was manufactured by the FBI. Nguyen is incompetent and has no skills of any use to Al-Qaeda. For goodness sake, he came to the FBI’s attention because he was using his Facebook page to try to get in touch with Al-Qaeda. He probably never would have made contact with a terrorist organization or applied for a false passport if left to his own devices. So the FBI did not actually stop a terrorist who posed a real threat to our national security. Instead, it wasted time it could have used to find actual terrorists plotting to harm the United States. Nguyen probably deserves whatever punishment he will get. He obviously had the worst of intentions, and it is good that he is off the street, and that he will be incarcerated for some period of time. It is just that the FBI could have used its resources in so many ways that would have made greater inroads against terrorism.

This misallocation of resources is actually systemic, both within the FBI and within law enforcement agencies generally. Specifically, police go for the low-hanging fruit because it is easy to pick and because it looks the same when you see it on the news.  To understand why the FBI spends its time scheming with a dimwitted security guard, you have to understand more generally what is the problem with law enforcement today, and that requires understanding the forces that drove law enforcement’s development over the last three decades.  Specifically, the development of police work has been dictated by the war on drugs. Federal money is awarded to local and state police departments in direct proportion to the number of drug arrests and amount of drugs seized. So in order to continue buy equipment, pay overtime, and avoid hiring freezes, police departments need to make drug arrests. And for the purposes of getting federal money, it doesn’t matter whether the police departments anticipate and prevent criminal activity, or create crimes and arrest the participants.

Detecting most kinds of criminal activity – say, a robbery or a murder – takes work. It requires the cultivation and maintenance of confidential informants, knocking on doors to look for witnesses, and interrogating suspects. On the other hand, arresting a drug dealer is as easy as waiting in a low-income urban neighborhood and watching hand to hand crack sales. Or even better, walking up to a drug dealer with twenty dollars, buying the drugs, and making the arrest. Is it to anyone’s surprise that police officers would rather lounge around and bust crack dealers than walk the beat looking for violent criminals?

Of course, there are other reasons why law enforcement goes for the easy targets, and those reasons are primarily political. Democracy is designed so that our elected leaders have to accomplish what the people want them to do or they will not be reelected. In practice, elected leaders just have to make people believe that they are accomplishing their charge in order to get reelected. And apparently the electorate is not intelligent enough to figure out when our leaders are being effective and when our leaders are selling us a bill of goods. Again, it is harder for the FBI to find active terrorists than to find a lowlife who advertises his criminal intent on Facebook. So if the FBI looks for active terrorists, it will corral fewer show ponies for the Justice Department to parade across our TV screens, and that is why they pick the low-hanging fruit.

Under 18 USC 2339 (a),  Whoever provides material support or resources…knowing or intending that they are to be used in preparation for, or in carrying out [an offense of terrorism shall be imprisoned not more than 15 years…” The term ““material support or resources” means any property, tangible or intangible, or service, including…personnel (1 or more individuals who may be or include oneself)…” Nguyen definitely attempted to provide material support to the enemy. He intended to attack coalition forces and he intended to provide personnel (himself) to do it. So it may be unfair, in a technical sense, that Judge John Walter looked askance at U.S. Attorney Judith Heinz when she explained that Nguyen himself was the material support. Nevertheless, the question posed by the judge underscores the real point that should be taken from this prosecution: our government need to spend more time investigating and neutralizing terrorists who pose a realistic danger to our national security, and less time hunting trophies to display.

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Service of subpoenas to appear in Superior Court

Posted on December 24, 2013 by admin

An issue that occasionally arises in DUI cases is the adequacy of service. When the issue comes up, it is usually in the context of service of a subpoena to secure the attendance of a witness in San Diego Superior Court. On some occasions a subpoena duces tecum is issued. A subpoena duces tecum is a subpoena that is used to compel production of documents, or occasionally other tangible things. Typically, the district attorney will turn over the documents sought in an informal exchange of documents called “discovery.” As a result, attorneys do not frequently need to serve subpoenas duces tecum to the superior court in DUI hearings.

Attorneys handling other types of cases may need to serve documents more frequently. Specifically, in a case in which a Petitioner seeks a restraining order, the petitioner must serve a petition for the restraining order on the party sought to be restrained – the respondent. That is not to say that DUI  attorneys never need to serve a subpoena duces tecum. There is a longstanding battle between a corporation called Intoximeters, that manufactures breath testing devices, and DUI defendants in San Diego who seek to compel Intoximeters to produce their source code.

Intoximeters has made a number of motions to quash service. An appearance on such a motion is generally referred to as a special appearance. In order to avoid submitting to the jurisdiction of the court, it is important for an attorney to be very clear that he is appearing specially for that purpose. For instance, in a restraining order case, if an attorney makes any argument whatsoever regarding the propriety of the court issuing the TRO (aside from arguments about service) then his client may be recognizing the court’s authority to rule on those questions and submitting to the court’s jurisdiction.

CCP 527.6(m) provides the service and notice requirements for a petition for a temporary restraining order and injunction requested under CCP 527.6(a).  CCP 527.6(m) provides as follows:  “Upon the filing of a petition for an injunction under this section, the respondent shall be personally servedwith a copy of the petition, temporary restraining order, if any, and notice of hearing of the petition. Service shall be made at least five days before the hearing.” (emphasis added). Unlike the rule in TRO cases, there is no deadline as far as timing for service of a subpoena to a San Diego DUI trial. However, the court can exercise its discretion in refusing to grant a continuance, or postponement, in the event of an absent witness, when a DUI defendant does not exercise diligence in the service of a subpoena.

There really isn’t any case law that is easily discoverable regarding what constitutes personal service specifically within the context of ccp 527.6. So it is probably wise to look at CCP 415.10, which, while it has some value in interpreting service in criminal DUI cases, actually governs service generally in connection with civil matters.

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DUI probation and the restricted license anomaly

Posted on December 22, 2013 by admin

If a person is convicted of DUI while on probation for another DUI conviction, can that person obtain a restricted license? The short answer is that the person is, as a matter of law, entitled to obtain a restricted license upon satisfying certain conditions. The long answer is that, even though such  a person may be entitled to a restricted license as a matter of law – under VC 13353(a(3) – as a matter of practice the DMV has not been compliant in issuing the restricted licenses. So a probationer who suffers a separate conviction may have to file a petition with the superior court for a writ of mandate ordering the DMV to issue a restricted license.

13353.2(a)(4)(A) tells the DMV to suspend the driving privileges of a person on DUI probation who drives with a BAC of .01% or greater, but it does not specify the length of the suspension. 13353.3(b)(2)(A) says the suspension is for one year, unless the person is eligible for a restricted license under 13352.  13352(a)(3) says that a second conviction within 10 years results in a 2 year license suspension, but that you can get a restricted license after 90 days with installation of an IID. So, if a person is on probation for DUI, they are administratively determined to have been driving with .a BAC of .01% or greater, and they get a second conviction, then they can get a restricted license after 90 days. This produces the anomalous result that if a person is administratively determined to have been driving with .01% or greater while on DUI probation, but does not suffer a court conviction then it is a one year hard suspension with no restricted license. But if the person does suffer a conviction then can obtain a restricted license after 90 days (albeit with a 2 year total suspension).

It is bizarre to think that the legislature could have intended such an anomalous result. Someone on DUI probation who loses a DMV hearing, which need be proven only by a preponderance of the evidence, will be completely unable to drive for a full year. But an identically situated person who was also convicted of DUI in court, which requires a much higher burden of proof to be met, could obtain a restricted license in 90 days.  One would think that if the Court of Appeal considered this absurd state of affairs they would find that the legislature could not have intended such a result.

But one would be wrong.  In LaChance v. Valverde (2012) 207 Cal.App.4th 779, the court of appeal considered a petition for writ of mandate by a driver whose license was suspended, and who was denied a restricted license by DMV. The driver had suffered a DUI arrest in 2007 that led to the imposition of a license suspension. After the 2007 arrest, the driver lost her APS hearing, leading to the imposition of a license suspension, but she was not convicted in a criminal case. The driver was again arrested in 2010. After an APS hearing, the DMV imposed a one year license suspension.  The driver was convicted of DUI in the criminal case arising from the 2010 arrest. As a result of the criminal conviction, the DMV imposed a one year license suspension. The driver then sought to obtain a restricted license.

Now here is where it gets interesting. There is no question that, if the driver had suffered a second criminal conviction, she would have been able to obtain a restricted license after 90 days. But since it was her first criminal conviction, the DMV denied her application for a restricted license. Why did they do so? Because they read the language of the statute strictly and literally, and according to the literal language of the statute, she was not entitled to a restricted license.

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Refusal to take field sobriety tests and resisting arrest.

Posted on September 30, 2013 by admin
I think it is so fundamentally obvious that you can’t be compelled to take FSTs that the issue has not made it’s way to courts of appeal.

1. A PAS test is a field sobriety test. (There are many cases you could cite to, but you could start with People v. Bury).

2. Submission to a PAS test is not mandatory. There are a number of ways to get to this premise. One of them is to look at VC 23612, the implied consent law which says that, by driving, you give consent to take a CHEMICAL (not a PAS) test (but even VC 23612 is not constitutional given a recent SCOTUS decision).
3. Ergo, submission to field sobriety tests is not mandatory.
Prosecuting agencies frequently proceed on baseless resisting arrest (california penal code section 148) cases because if they dismiss a case then the defendant can sue for an unlawful arrest, but a criminal conviction is a bar or hurdle in a civil case for an unlawful arrest. The problem is that the same office often represents the a single governmental entity (i.e., a city or a county) in civil AND criminal cases and they take into consideration the civil ramifications of a criminal case.
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The impact on a DMV hearing of a delay in analyzing a blood sample.

Posted on September 29, 2013 by admin

What is the significance of a 2 month delay between a blood draw and analysis of the blood sample?

I would not retest the blood. Title 17 does not prescribe a maximum time from blood draw to analysis. So you will have trouble getting the blood result excluded at the APS hearing based on that delay without putting on an expert. I would have an expert testify. You can have him testify by phone, which will save a lot of money over an in-person hearing.

This may be a good case for trial – depending on the driving and the FSTs. There is an excellent study by Blume and Lukatua showing that yeasts cause sugar in the blood to ferment into alcohol.
Glatman v. Valverde is not useful to you because it is about the fallibility of memory, not the integrity of the blood sample. It excludes blood results for excessive time between analysis and recording, not for excessive time between draw and analysis.
Vehicle Code Section 23612(g) (1) says that “[t]he peace officer shall immediately forward a copy of the completed notice of suspension or revocation form and any driver’s license taken into possession under subdivision (f), with the report required by Section 13380, to the department. If the person submitted to a blood or urine test, the peace officer shall forward the results immediately to the appropriate forensic laboratory. The forensic laboratory shall forward the results of the chemical tests to the department within 15 calendar days of the date of the arrest.
So although Title 17 does not provide a mandatory time within which blood must be analyzed, the Vehicle Code does. The problem is that the Vehicle Code does not specify any consequence for failure to timely analyze a blood sample.  If DMV hearing officers were fair and unbiased, they would likely set aside a license suspension on the basis that an time delay exceeding 15 days negates the Evidence Code Section 664 presumption, making the results of the blood analysis inadmissible. But because hearing officers have a mandate to affirm as many license suspensions as possible, a writ to the Superior Court may be the only way to prevail based on the time delay.
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What to do when the prosecutor “files” an amended complaint.

Posted on September 28, 2013 by admin

Before demurring to the amended complaint, I would file an opposition to the DA’s motion for leave to file an amended complaint on the basis that amending the complaint constitutes vindictive prosecution. Prosecutors routinely “file” amended complaints without making a written motion, which gives the impression that they can file an amended complaint as a matter of right. But they actually need leave of court   If the judge grants leave for the DA to file an amended complaint, then you would demur. I recently went to trial on a first offense DUI Case where the City Attorney threatened to amend the complaint to allege a speeding enhancement, which carries a mandatory 60 days custody, if the defendant went to trial. The City Attorney “filed” an amended complaint on the day of trial. I filed an opposition to their motion for leave to amend. And the judge DENIED their motion for leave to amend the complaint. It sounds like you are pretty solid on the other grounds, but it can’t hurt to oppose their motion. I have attached the law from the Points and Authorities I filed.

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Filing a motion to terminate probation in the San Diego Superior Court.

Posted on September 27, 2013 by admin

From one courthouse to another, there are different procedures for filing and arguing a motion to terminate probation.  I just wait until half of the probation period is over (sometimes even less) to file the motion. Judges frequently grant the motions, and sometimes I have literally not even had to argue. Sometimes I  ask what his tentative ruling is and if the judge says the tentative is to grant the motion then I just submit on the papers. Often times, good written work obviates the need for oral argument.

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Musings on Implied consent and DUI blood tests: recent developments in the law

Posted on July 6, 2013 by admin

Recently, attorneys have had some success in arguing that implied consent does not equal fourth amendment consent. In other words, people have a right to be free from unreasonable searches and seizures, as guaranteed in the fourth amendment. Prosecutors argue that the implied consent law, whereby a person agrees to submit to a breath or blood test as a condition of receiving a drivers license, operates to prevent the driver from challenging the lawfulness of a blood test that is incident to a constitutionally valid arrest in a motion to suppress evidence.

The implied consent law is laid out in vehicle code section 23612, which provides as follows: “23612.  (a) (1) (A) A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcoholic content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153. If a blood or breath test, or both, are unavailable, then paragraph (2) of subdivision (d) applies.”

But if the implied consent law really did away with fourth amendment rights with respect to blood tests, then the prosecution would never have to prove that an arrest was lawful-they could just rely on implied consent. But we know that the prosecution does in fact have to prove that the arrest was lawful. In fact, vehicle code section 23612 .  (a) (1) (B) provides that “A person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood ( )1 for the purpose of determining the drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153.” So, obviously, the arrest has to be lawful. But what else must be shown by the prosecution to justify a warrantless blood draw? That is a matter that is at the cutting edge of DUI defense right now, and is being litigated throughout the state of California prominently, in San Diego, as well as elsewhere.


The event that triggered the recent increase in challenges to blood tests is the issuance of an opinion by the Supreme Court in the matter of Missouri v. McNeely. The Supreme Court only occasionally issues a decision that is of great import specifically to attorneys practicing DUI defense. This could lead one to believe that the law is cut and dried, and that there is little creative work that needs to be done in order to mount an effective defense. However, that could not be further from the truth. To the contrary, it is innovative thinking and creative strategizing that caused attorneys in the McNeely case to challenge what had long been assumed by attorneys to be indisputable: that the implied consent law was invulnerable to constitutional attack.

In McNeely, a defendant was forced to submit to a blood test. The facts of McNeely are of course very different from ordinary DUI cases. That is not to say that it is rare to see a force blood draw. That is not the case. However, in the vast majority of cases the defendant driver “consents” to a blood test, and is not forced to do it. So what about cases in which the defendant is not physically forced to do a blood test? In other words, cases where a defendant is coereced in the sense that he’s told that he is required to give her a breath or a blood test, but does not actually refuse and is not subject to force.

Couldn’t the prosecution just argue that the implied consent law is not actually a requirement for a blood test? Couldn’t they say that the implied consent law specifically says that a person must submit to a breath or a blood test? So prosecutors could argue that, while the implied consent law may  be unconstitutional as applied to a person who is forced to do a blood test, it is not unconstitutional as to a person who does a blood test by choice. San Diego DUI defense attorneys would argue that it is not really by choice, or voluntary, when a defendant is told of the implied consent law because the defendant’s consent is eviscerated by the threat of force. But the prosecution could retort that officers are not threatening to force a defendant to subject himself to a blood test. They are forcing him to make a choice between a breath and a blood test. We have not heard San Diego DUI attorneys argue that a requirement to take a breath test is unconstitutional. So really what officers are doing is telling drivers that have been arrested that they have a choice between performing act number one, which does not violate a defendant’s rights, and act number two, which does violate a defendant’s rights. It could be argued that such a statement is the same as telling a defendant that they have to take a breath test, and, by the way, they also have the choice of taking a blood test if they prefer. So would requiring a defendant to submit to a breath test be a violation of fourth amendment rights? If the answer is no, then how could it be a violation of fourth amendment rights to tell a person that they are required to submit to a breath test, but that they have an additional option, which is to submit to a blood test?

Couldn’t the prosecution argue that a lawful DUI arrest creates some exigency, at least enough exigency to require a breath test, if not a blood test? In balancing the interest in privacy against the exigency of obtaining an accurate measurement of blood alcohol concentration, doesn’t the interest in obtaining an accurate measurement of blood alcohol concentration outweigh the drivers privacy interests in his breath sample, acquired during a test which is minimally intrusive?

It remains to be seen whether prosecutors will argue that implied consent is not a requirement for a blood test. Prosecutors may argue that implied consent is actually a requirement for a breath test, with an option of a blood test. If they argue this though, then they treat the danger that case law may say that implied consent really does not require a blood test. Then defense attorneys could claim that law enforcement officers are misrepresenting options to defendants, and thereby coercing them into giving blood by fraud. In other words, a defendant, if the Supreme Court were to decide a case in the manner suggested immediately above, would be obligated to give a breath test, but there were be no way to enforce that obligation if there really is not a requirement to take a blood test.

In any case, this is a very an emerging area of law that promises to provide much excitement to the criminal defense community in the law library as well as the courtroom.

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How Weather Effects DUI’s

Posted on January 26, 2011 by admin

Storms have been ravaging the entire United States this winter.  Many storms begin in the South and head north along the East coast. These storms create dangerous layers of slippery ice, which, as San Diego DUI attorneys know, make the roads even more hazardous for drivers.  Fortunately, San Diego is not a place which gets icy roads (at least not in San Diego city).  However, that does not mean that the winter makes no difference as far as driving safety.

The presence of rain and hail, which is known to occur in San Diego, makes it much more dangerous to drive.  It is beyond debate, and is known to virtually all San Diego DUI lawyers, that the consumption of alcohol, especially in excess, increases a driver’s reaction time.  When driving in rainy conditions, it can often take longer to slow down or stop a car than when driving at the same speed in clear conditions.  Because a driver’s reaction time is slower when impaired by alcohol and it takes longer to stop in the rain, driving under the influence of alcohol is particularly dangerous in stormy conditions.

As it happens, summer is the time of year when people tend to go out to bars and parties because the weather is warmer and because it stays light later.  That’s why there are more San Diego DUI drivers on the road during the summer months.  Another reason for the greater number of DUI drivers during summer months is that people go out with the expectation that other people will be out at bars.  In point of fact, if each person, during the winter, thought that each other person would be out at the bars, then a lot more people would probably be out at the bars. It is not merely the better weather that makes people go out to bars more frequently, but it is people’s expectation that others feel the same way that leads them to go out so much.

This is illustrative of a more general point relating to human behavior.  People’s actions are often determined in whole or in part by their expectations about the behavior of other individuals.  In fact, it is a hallmark of the San Diego DUI defense lawyers, and other members of the human race, that we make decisions based on predictions about the behavior of others.  As an example, many people decide to stay off the road between one o’clock and 3:00 a.m. because they know that there will be DUI drivers on the road at that hour in San Diego.  Taking all this into consideration, a reasonable inference can be drawn that in the wee hours of the morning on a stormy night, especially if it is an out of season summer storm, the roads are a dangerous place to be.

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