DUI BLOG

It was only a couple of months ago that tens of thousands of breathalyzer results were called into question in Massachusetts, affecting countless DUI cases. It appears New Jersey is dealing with a similar issue now that the state’s highest court ruled that 20,667 breathalyzer results were faulty and therefore inadmissible in the DUI cases where the results were used to secure convictions.

The ruling stems from a case that begun more than two years ago after the attorney for a woman by the name of Eileen Cassidy was notified by the state that the breath results were possibly faulty. At the time the attorney was notified, Cassidy was two weeks into a 180-day sentence on a third-time DUI. Cassidy then filed a lawsuit which led to the appointment of a special master to determine the reliability of the breathalyzer results.

Cassidy’s lawsuit led to the charging of Sergeant Marc W. Dennis with falsely certifying that he had followed proper calibration procedures when calibrating breathalyzers used in DUI stops. The court, in its recent ruling, concluded that the results of the breathalyzers calibrated by Dennis, called Alcotests, were untrustworthy.

“Confidence in the reliability of instruments of technology used as evidence is of paramount importance,” Justice Walter Timpone wrote for the court. “Unfortunately, alleged human failings have cast doubt on the calibration process.”

In addition to determining that the results of the breathalyzers were faulty, the court also vacated Cassidy’s conviction. Unfortunately, Cassidy passed away from cancer in March, never allowing her to see her case vacated by the court.

That, however, didn’t stop her attorney, Michael R. Hobbie, from continuing to fight for her.

While the court vacated Cassidy’s conviction, the New Jersey Supreme Court failed to enunciate in its ruling who could challenge their conviction or exactly how to challenge their conviction.

“With respect to the other 20,667, their cases weren’t vacated,” said Hobbie. “They just going to get notified that the breath test in their case has been deemed inadmissible and they should seek whatever remedy is available to them.”

County prosecutors have already notified thousands of people whose cases may have been affected by the faulty breathalyzer results. The New Jersey Supreme Court, however, has now ordered state authorities to notify everyone whose faulty breath test was used in their case that the results are inadmissible.

“We’ll be issuing guidance shortly for our county prosecutors and municipal prosecutors over how to handle those cases,” said Gurbir Grewal, the New Jersey attorney general.

Although the court declaring the results of the breathalyzers inadmissible is a step in the right direction, ask yourself: How much is it going to cost those people affected by the faulty breathalyzer to legally challenge their conviction (after many, I’m sure, have already spent thousands of dollars to fight the underlying DUI charge in the first place)? As I’ve pointed out many times in previous posts and as I’m sure you’re aware, lawyers are not cheap. Should these people have to bear the burden, financial or otherwise, to remedy something that would not have occurred but for the actions of a corrupt law enforcement officer trying to secure convictions of people who may have been innocent?

Sergeant Dennis was indicted in 2016 and is currently facing criminal charges.

In nearly all misdemeanor DUI’s that result in a conviction, probation is a term of the driver’s sentence. There is, however, much confusion about what exactly misdemeanor DUI probation entails. But, before I go into what probation entails, let’s discuss what probation even is and where it comes from.

In 1841, a Boston cobbler named John Augustus persuaded a Boston Police Court to place a “drunkard” in his care to become rehabilitated prior to sentencing. 37 years later, in 1878, the mayor of Boston hired a former police officer, “Captain Savage,” to become what many recognize as the first probation officer. By this time, many federal judges were regularly suspending the sentences of people convicted of crimes. In 1916, the United States Supreme Court decided what is known as the “Killets Decision,” where it held that a federal judge by the name of Killets could not suspend a criminal sentence indefinitely. The Killets Decision led to the passing of the National Probation Act of 1925, which allowed courts to suspend the sentences of people convicted of crimes and place them on probation.

Simply put, probation is court supervision over an offender for a specified period of time rather than placing the offender in jail or prison.

In the context of a California DUI, probation is much more than merely supervision.

For a misdemeanor DUI in California, a person can be placed on summary (informal) probation for a period of three to five years depending on the circumstances surrounding the DUI. Probation can be less if a driver is able to get the DUI reduced to, for example, a “wet reckless.” Summary probation, also known as informal probation, is given in all misdemeanor DUI cases and doesn’t require supervision by a probation officer. For felony convictions, on the other hand, formal probation requires supervision and meetings with a county probation officer.

In addition to being placed on probation, the court will sentence a DUI offender to abide by certain conditions during the time of probation, some passive and some active.

The passive conditions of probation can and will include not picking up any new cases (this does not include infractions such as traffic tickets), not driving without a valid license, and not driving with any measurable amount of alcohol in their system. Normally, it is not illegal to drive with some alcohol in a person’s system as long as they’re not above a blood alcohol content of 0.08 percent or higher, or if they are “under the influence.” However, when a person is on probation, they cannot have any alcohol in their system, not even a 0.01 percent blood alcohol content.

Additionally, normally a person does not have to submit to field sobriety tests or a pre-arrest breathalyzer when stopped on suspicion of a DUI. However, if a driver is already on probation for a California DUI, they must submit to field sobriety tests and a pre-arrest breathalyzer if they are stopped on suspicion of a subsequent DUI.

The active conditions of probation include the driver doing whatever the court orders them to do during the probationary period. This can include paying their fines and fees, completing a court-approved DUI course, completing a MADD Victim Impact Panel, completing a Hospital and Morgue program, completing AA meetings, completing community service, and completing community labor (which in most Southern California courts means picking up trash on the side of the freeway with CalTrans). Although the purpose of probation is to avoid jail, sometimes going to jail for a shorter period of time is a condition of probation.

If the probationary period expires and the person has completed all of their passive and active conditions of probation, probation will terminate, the case is completed, and the driver should discuss a 1203.4 dismissal (commonly referred to as an “expungement”) with their attorney.

On the other hand, if a person violates any condition of probation, the court can revoke probation and sentence the driver up to the maximum of what the original DUI allowed. For a first time DUI, this is a $1,000 fine and six months in county jail. For a second or third time DUI, this is a $1,000 fine and a year in county jail.

Although not pleasant, probation is, most of the time, a preferred alternative to potentially spending months in jail for a California DUI.

For some who have been arrested on suspicion of a DUI, jail isn’t as much of a worry as what the DUI will cost them financially. Rightfully concerned, it’s no trivial amount. Let’s break down the costs of a first-time DUI in California, because knowing the costs of a DUI can be just as much of a deterrent as the threat of jail.

First off, should you hire an attorney to help represent you, that would be your first cost. Not all people can afford attorneys because we are admittedly expensive. Almost all DUI attorneys charge on a flat fee basis and most charge for “pre-trial” and trial separately.

Pre-trial is the phase of the court proceedings where the attorney obtains the evidence, makes motions (if applicable), and negotiates a plea deal with the prosecutor. For this stage, attorneys can range between $1,000 and $7,500 depending on the complexity of the case, the experience of the attorney, and the size of their office. There’s no right or wrong number. Pay what you can afford and, generally, with quality comes price. Having said that, do your homework. Make sure that you actually consult with the attorney first and that you’re comfortable with them. Make sure that they specialize in DUI defense. Often, the lower-cost attorneys are the ones who don’t have much experience defending DUI cases.

During pre-trial, it may be recommended that a blood re-test be conducted. You, not the attorney, bears the responsibility of paying for this expense and it’ll run about $200, depending on what the blood is being tested for. You attorney may also recommend hiring an expert to consult regarding the blood re-test results. This too can cost several hundred dollars.

Although the vast majority of DUI cases do not make it to trial, some do. For those who wish to push their case to a trial, they can expect anywhere from $5,000 to $15,000 to conduct the trial. Since most DUI’s don’t ever make it to trial, I won’t say anything more about trial costs.

If someone is convicted of a DUI, whether through a plea deal or following a guilty verdict after a trial, they face additional costs as part of their sentence.

The fine for a DUI is a minimum of $390 up to a maximum of $1,000. Having practiced DUI defense now for close to 10 years, I can say that the fine for most DUI’s ends up being $390 to $500. This number, however, does not include the “penalties and assessments.” Think of these as “court taxes.” They vary from courthouse to courthouse and, I kid you not, many judges don’t even know where the penalties and assessments go. As a rule of thumb, I tell people to expect about $2,000 give or take a couple hundred of dollars.

The sentence for a first-time DUI will almost inevitable result in the driver having to take a DUI class, if not for the court, quite possibly to get their license back from the DMV. For a first-time DUI, a person is looking at either a three, six, or nine-month DUI course. Although the costs vary depending on the length of the course and the program that you take the course from, people should expect to pay between $600 and $1,800 for the DUI course.

Sometimes, a driver will have to pay the arresting agency a booking fee. This ranges between $200 and $400.

When the driver is eligible to have their license reinstated, the reinstatement fee to the DMV is $125. (You can read previous posts about the license suspension following a DUI)

Lastly, a person must consider the ancillary costs of the increase in car insurance. Most people forget to include this figure in their estimations of total DUI costs because it’s not directly related to the courts. The estimate cost of car insurance over 10 years is approximately $10,000.

I went to law school so that I wouldn’t have to do math, but it doesn’t take a mathematician to know that the total costs are exorbitantly high when added up. Don’t drink and drive so that you can avoid having to sell a kidney on the black market just to afford the costs associated with a California DUI.

People very often ask whether it’s possible to get a wet reckless in their DUI case without even knowing what a wet reckless is or what it entails. They do, however, know that it’s something better than a DUI conviction. While they are correct in that it is better than a DUI charge, there are some very important distinctions between a DUI and a wet reckless.

First, it’s important to explain exactly what a wet reckless is.

A prosecutor cannot charge a wet reckless from the outset. It can only be reduced from a DUI charge. If it is offered and the driver accepts, the driver will be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to section 23103.5 which reads, ““A person who drives a vehicle upon a highway in willful or wanton disregard for the safety of persons or property is guilty of reckless driving…If the prosecution agrees to a plea of guilty or nolo contendere to a charge of [reckless driving] in satisfaction of, or as a substitute for, an original charge of a violation of [DUI], the prosecution shall state for the record a factual basis for the satisfaction or substitution, including whether or not there had been consumption of an alcoholic beverage or ingestion or administration of a drug, or both, by the defendant in connection with the offense. The statement shall set forth the facts that show whether or not there was a consumption of an alcohol beverage or the ingestion or administration of a drug by the defendant in connection with the offense.”

In other words, a driver who takes a wet reckless is pleading guilty (or no contest) to reckless driving involving alcohol.

A wet reckless is one of several reductions to a DUI charge that a prosecutor might offer as incentive to get the driver to take a plea deal. Typically, the wet reckless is only offered if there are issues with the prosecutor’s case that might make it difficult for them to win at trial. For example, a wet reckless might be offered when it is determined that the driver’ blood alcohol content is close to the legal limit of 0.08 percent.

In addition to looking better on paper than a DUI conviction, there are a number of other benefits to the wet reckless.

If a person is convicted of a second-time DUI within 10 years, they face a mandatory minimum of 96 hours in jail. If a person is convicted of a third-time DUI within 10 years, they face a mandatory minimum of 120 days in jail. However, if a person is convicted of only a wet reckless when they’ve suffered prior DUI convictions within a 10-year period, there is no mandatory minimum jail sentence. For example, if a person is convicted of a DUI in 2010 and then a wet reckless conviction in 2018, there is no mandatory minimum jail for the wet reckless.

On the other hand, if a person is convicted of a wet reckless and then suffers a DUI within 10 years of the wet reckless conviction, the wet reckless will be treated as though it was a DUI prior. For example, a person is convicted of a wet reckless in 2010 and then suffers a DUI conviction in 2018, they are facing are facing a mandatory minimum of 96 hours in jail.

Other possible advantages of the wet reckless include a shorter probationary period, lower fines and fees, and a shorter DUI program. I say possible because it depends on what the prosecutor offers as a sentence to the wet reckless reduction.

Lastly, a wet reckless conviction does not trigger the 6-month suspension with the DMV. The license will still be suspended, however, if the driver loses the DMV’s administrative per se action.

What good is the Constitution if we don’t use it?

I find myself asking this more often than I’d like to admit. But unfortunately, courts throughout the country continue to issue decisions that erode the protections guaranteed to all of us by the Constitution. Such was the case earlier this month when the Arizona Court of Appeals ruled that, even though officers illegally coerced a DUI suspect into giving consent to be breathalyzed, the results would stand.

In August of 2015, Arizona officers stopped Angel Soza on suspicion of driving under the influence. The officers told Soza that Arizona law “required” him to submit to and successfully complete tests of breath, blood or other bodily substance to determine alcohol concentration or drug content.

Like California, under Arizona law, drivers are impliedly deemed to have given their consent to a chemical test. However, if a driver refuses to provide breath or blood, officers may obtain a warrant to determine the driver’s blood alcohol content. Without a warrant, the driver must voluntarily agree to the testing. In fact, Arizona Revised Statutes section 28-1321, which is Arizona’s implied consent law, states that “[i]f a person under arrest refuses to submit to the test…[t]he test shall not be given.” The judges in Soza’s case admitted as much.

“The mere fact that the defendant does not resist the test is insufficient under the statute; consent must be express, said Judge Sean Earl Brearcliffe, who wrote for the majority.

Based on the officer’s admonition that he was “required” to submit to a test, Soza consented.

This was admittedly a violation of Arizona’s implied consent statute. In fact, Judge Brearcliffe said, “Here, the officer who arrested Soza read him a coercive admonition telling him he was ‘require[d]’ to submit to testing” and “[B]ecause there was no consent and no warrant, the breath test violated [the implied consent law].”

But, apparently, coercion doesn’t matter.

Notwithstanding its own determination that Soza’s consent was coercively obtained by police, the court went on to justify why the results could still be used against Soza.

“As a general rule, because the legislature is charged with providing remedies for the violations of the laws it enacts, unless a law states that exclusion of evidence is a remedy for its violation, the exclusionary rule is not imposed by the courts,” Judge Brearcliffe wrote. “Because the legislature nowhere in Section 28-1321 prescribed suppression of evidence as the remedy for its violation, were we to do so of our own accord, we would be engrafting on the law a remedy neither provided for by the legislature nor required by the Constitution.”

The exclusionary rule is a canon or American criminal justice where evidence obtained in violation of the Constitution cannot be used against a criminal defendant. In other words, for example, when a confession is illegally coerced by police, the confession cannot be used at trial against the defendant.

Therefore, the court ruled that even though the officers illegally coerced Soza’s consent, the results can stand because the implied consent law specifically does not refer to the exclusionary eule as a remedy.

Chief Judge Peter J. Eckerstrom, who dissented, believed that Soza’s breath results should have been thrown out, and I agree.

“In short, the Arizona Supreme Court has twice sanctioned violations of the implied-consent law by applying the exclusionary rule,” Judge Eckerstrom said. “As a subordinate court, I believe we are compelled to follow those cases and apply the rule to the similar violation here.”