OC Judge Vacates DUI Sentence After Victim Seeks Harsher Sentence

Posted by Jon Ibanez on December 7th, 2017

In January of this year, a man by the name of Jorge Perez was driving under the influence of alcohol when he struck 20-year-old Cal State Fullerton student Jessica Weber as she was walking with her friends back to the dorms.

Perez drove through a red light and hit Weber with his left-side mirror. Perez then drove away before law enforcement arrived at the scene. Witnesses helped police track down Perez where he was later arrested. Meanwhile, Weber was left with broken bones in her back, hip, pelvis, and left arm.

Bonnie Masters-Weber, Jessica’s mother, had told the Orange County Deputy District Attorney who was assigned to the case that she wanted to be present for every hearing. Masters-Weber, who lives in Sacramento, was told by the prosecutor that there was no need for her to make the long trip for every hearing, but that they would inform her of when sentencing would take place.

Under the California Victim’s Bill or Rights Act of 2008, commonly known as Marcy’s Law, victims of crimes and their families have the right to be present during the criminal proceedings of the defendant and give a statement at the defendant’s sentencing.

According to the Orange County District Attorney’s Office, the prosecutor on the case “inadvertently failed to notify” Masters-Weber that Perez had accepted a two-year deal with the judge.

Unbeknownst to Masters-Weber, Perez was sentenced in October. Although the DA had been pushing for four years and four months in prison, Perez accepted an offer from the judge of two years in prison.

When the failure to notify the Weber family was discovered, prosecutors filed a motion for reconsideration of Perez’s sentence and Judge Scott Steiner ordered a hearing.

“The DA failed us,” said Masters-Weber at the hearing which took place last month. “It refused to acknowledge their violation of our constitutional rights.”

Judge Steiner agreed that the Weber and her family’s rights were violated and vacated Perez’s guilty plea.

“I am making the determination that it is proper in the interest of justice to vacate the guilty plea that was entered in this case,” ruled Judge Steiner.

Perez’s attorney disagreed with the ruling arguing that the court had considered letters of impact before it offered the two-year sentence to Perez.

With the guilty plea vacated, Perez’s initial not guilty plea effectively gets reinstated and Perez’s defense can continue to fight for a better offer or take the case to trial. Given the statements provided by Weber and her family, Judge Steiner told Perez’s defense that the new court offer would be four years and four months, the same as what the DA’s office had pushed for originally.

Susan Schroeder, the Orange County District Attorney’s chief of staff issued the following statement:

"The Orange County District Attorney’s Office (OCDA) is a leading enforcer of Marsy’s Law rights and takes its advocacy for crime victims seriously. In the case of People V. Jorge Perez, the OCDA was vigorously pursuing a sentence of 4 years and 4 months on charges of driving under the influence of alcohol causing bodily injury, driving with blood alcohol .08% or more causing bodily injury, hit and run with injury, driving on a suspended/revoked license, and a sentencing enhancement for inflicting great bodily injury."

"Early on in the case, the victim’s mother, Ms. Masters, had been working with a deputy district attorney, who is no longer with the office, who suggested she not make the long drive from northern California for each and every proceeding and that our office would notify her prior to the sentencing. A note was made in the file to contact her when the time came. The judge offered the defendant a two-year sentence, an offer that was not supported by the OCDA. The OCDA gave Ms. Masters’ prepared victim impact statement to the judge who considered it at the sentencing hearing on October 17, but inadvertently failed to notify Ms. Masters to be present."

"Once the error was discovered and prior to being contacted by the media, the OCDA initiated the process of getting the case put back on the calendar to remedy the situation so Ms. Masters may address the court personally. OCDA prosecutors strive for perfection and in this case, we fell short. We certainly understand why Ms. Masters is upset and we are working to correct our error."

In no way do I condone what Perez did and I want to be perfectly clear when say that Weber and her family should have had the opportunity to address the court. While it may be difficult for some to sympathize with, I’d be remiss if I did not point out another less-obvious inequity:

The prosecution fouls up and, as a result, gets exactly what they originally wanted; a more severe sentence.

Perez is due back in court later this month for a pretrial hearing.

 

 

Drunk Drivers Say Personal Breathalyzers Helped them Prevent Driving Drunk Again

Posted by Jon Ibanez on December 1st, 2017

This past August, the Colorado Department of Transportation gave 475 personal smartphone breathalyzers to people who had been convicted of a DUI. In addition to the obvious objective of preventing drunk driving, the Colorado Department of Transportation also wanted to see if, in fact, having the breathalyzer actually helped keep them from driving drunk again.

After recently surveying those people who were given breathalyzers, the Colorado Department of Transportation’s results showed that having a personal breathalyzer helped those people avoid driving drunk. In fact, a whopping 90 percent said that having a breathalyzer helped them avoid driving drunk and 94 percent said that they would recommend a personal breathalyzer to others who regularly drink alcohol.

The Colorado Department of Transportation teamed up with BACtrack, who created the smartphone breathalyzer, during the informal study. The breathalyzer is linked to a smartphone app through Bluetooth. If the user determines that they cannot legally drive, the smartphone app can order them a taxi or Uber.

I’ve written a few times on the benefits of purchasing a personal breathalyzer.

Like those handed out by the Colorado Department of Transportation, people can buy breathalyzers that can either be attached directly to a smartphone or connect to smartphone through Bluetooth and will run buyers between $100 and $150.  

Other, less expensive, breathalyzers can come on keychains and can cost buyers as low as $15. Like many things, quality comes with price and the results of these novelty breathalyzers are questionable at best and decrease in accuracy after time.  

Some breathalyzers are handheld and resemble those commonly associated with the breathalyzers used by law enforcement. Those breathalyzers range widely in terms of price and quality. Some come as low as $50 and some can go as high as a few hundred dollars. Obviously, the less expensive handheld breathalyzers have lower quality, but those more expensive handheld breathalyzers are the ones used by law enforcement because of their accuracy and may even be approved by the Food and Drug Administration (FDA). Law enforcement grade breathalyzers have an accuracy range of plus or minus 0.002 percent which means that if a person is a 0.08 percent, the breathalyzer results can range between 0.078 percent and 0.082 percent.

I purchased my own personal handheld breathalyzer to experience first-hand what I’ve been writing about. I didn’t break the bank, but I did spend $60 on the lower end of the legitimate handheld breathalyzers. After having a few drinks, I gave it a go. While I don’t know what my actual blood alcohol content was because different readings were provided, I can say that the multiple readings ranged by about 0.03 percent. In other words, using that range, a person could register between a 0.095 percent and 0.65 percent, or between a 0.18 percent and 0.12 percent, or between 0.26 and 0.23 percent. After a few months of use, the breathalyzer stopped working and I need to send it to the manufacturer.

While on the face of it, it might seem as though this range is too large to help drivers know whether they are okay to drive because if a person is actually at a 0.08 percent, the breathalyzer reading can show results as high as 0.095 percent and as low as 0.065 percent. Having said that, if a person knows that a breathalyzer is less than accurate and shows a blood alcohol content of 0.065 percent, they may know that they might actually be at a 0.08 percent and abstain from driving. And bear in mind that this is one of the less accurate handheld breathalyzers.

At a minimum, having a personal breathalyzer might help people bridge the gap between how a person perceives what their intoxication level is and what their blood alcohol content is. And while many breathalyzers might not provide an accurate reading, it might still prevent people from driving merely knowing that they are close to the limit. And knowing a range is certainly better than knowing nothing and making a stupid guess.

 

Do Crime Labs Hide Breathalyzer Test Evidence?

Posted by Lawrence Taylor on December 1st, 2017

I’ve written in the past about the inaccuracy of breath test results generally.  See, for example, Breathalyzers and Breath Test Accuracy and How Breathalyzers Work – and Why They Don’t.  And I’ve commented upon the many instances of supposedly "impartial" crime labs faulty testing procedures and lab "experts" testifying to facilitate convictions rather than justice.  See Crime Lab Breath Tests "Unreliable", More False Blood-Alcohol Results and Crime Labs Paid for Convictions – But Not for Acquittals?

This recurring and very disturbing picture of government crime labs willing to hide or even falsify evidence to assist government prosecutors appears to be endemic.  Consider, for example, this recent news article from The Boston Globe:


Report Finds State Lab Withheld Breathalyzer Test Results

Boston, Ma.  Oct. 17 – The head of a state crime lab office was fired Monday after investigators found that staff withheld exculpatory evidence from defense lawyers in thousands of drunken-driving cases since 2011, a disclosure that could threaten many convictions.

In a report released Monday, state public safety officials concluded that the Office of Alcohol Testing routinely withheld documents from defense lawyers in a lawsuit challenging the reliability of breathalyzer test results due to an “unwritten policy not to turn these documents over to any requester.”

The documents included evidence that breath testing devices had failed to properly calibrate during the office’s certification process, the report found.

“We conclude that OAT leadership made serious errors of judgment in its responses to court-ordered discovery, errors which were enabled by a longstanding and insular institutional culture that was reflexively guarded . . . and which was inattentive to the legal obligations borne by those whose work facilitates criminal prosecutions,” the report found.


This was followed a few days later with an insightful OpEd piece appearing in The Washington Post:


Another Week, Another Crime Lab Scandal

Wash., DC.  Oct 20 — ….At some point, we need to start asking pointed questions. Among them: Why would crime-lab analysts feel pressure to fake incriminating test results and to hide exculpatory results? Are they feeling pressure from police or prosecutors? We already know that, incredibly, some crime labs only get funding when their analysts produce results that help win convictions. Is that what’s happening here? There are numerous public and private grants and awards tied to driving-under-the-influence enforcement, both for police departments as a whole and for individual officers. Was that a factor here?

Crime-lab analysts should be neutral. Their job performance should be evaluated based on their accuracy. Clearly, something is making at least some of these analysts think there’s a “right” and a “wrong” answer when conducting these tests. Perhaps it’s right there in the name: the Massachusetts State Police Crime Laboratory. A forensic analyst shouldn’t be considered on the same side or team as the police. Hosting these labs under the auspices of police or district attorney’s offices is a big part of the problem.


Yet it continues…..
 

Utah Council Recommends No Changes to New 0.05 BAC DUI Law

Posted by Jon Ibanez on November 22nd, 2017

In March of this last year, I wrote about Utah’s efforts to lower their state’s blood alcohol content limit to 0.05 percent rather than the current nationally consistent limit of 0.08 percent.

In 2013, the National Transportation Safety Board (NTSB) voted to recommend that states lower their blood alcohol limits to 0.05 percent and cited studies that have shown that impairment can occur with a blood alcohol content of 0.05 percent. As of earlier this year, it seemed as though Utah would be the first to implement the lower BAC limit into its state law.

After some backlash from the hospitality industry, Utah Governor Gary Herbert indicated his desire to soften DUI penalties under the new lower BAC law. However, the state’s Substance Use and Mental Health Advisory Council recently voted to keep the lower BAC change in the law without softening any penalties.

SALT LAKE CITY (Associated Press) — A state council studying Utah’s new law setting the country’s strictest DUI threshold is backing away from recommending any changes, despite Gov. Gary Herbert’s wish to soften some penalties following a backlash from the state’s hospitality and ski industry.

The state Substance Use and Mental Health Advisory Council voted unanimously to support the new 0.05 percent blood alcohol limit scheduled to take effect next year after learning that law enforcement officials and Gov. Gary Herbert’s office disagree on how the state could soften penalties for those convicted of a DUI under the lower limit.

The stalemate makes it tougher for legislators and Herbert, who had hoped to make changes to the law in the wake of the backlash and concerns that the lower limit could target responsible drinkers after one alcoholic beverage.

The law lowering Utah’s DUI blood alcohol limit to 0.05 percent from 0.08 percent created a political problem for leaders who worry the strict new limit exacerbates Utah’s reputation as a Mormon-dominated state that’s unfriendly to those who drink alcohol.

Herbert, a Republican, signed the law this spring but said he would call lawmakers into a special session to address unintended consequences. The governor said in September that he’d like to see a tiered punishment system, with lighter penalties for a DUI between 0.05 percent and 0.08 percent.

At Herbert’s request, a committee of prosecutors, law enforcement and officials and others has been working since spring to draft possible changes to the law, which were presented Tuesday to the substance use council.

Paul Boyden, an attorney in the Salt Lake County District Attorney’s Office, said the DUI study committee that he helped lead suggested changing the law so that drivers with a 0.05 to 0.07 blood alcohol limit faced some lighter penalties — such as no mandatory jail time — than a full-fledged DUI.

But the penalties would be harsher than Utah’s lesser crime of impaired driving — an offense that Boyden said most drivers arrested for DUI are convicted of because they strike plea deals with prosecutors.

Drivers convicted of having a 0.05 blood alcohol limit would still face fines of at least $1,330, lose their driver’s license for at least 90 days, and be required to have an ignition interlock device for a year.

Ron Gordon, a member of Herbert’s staff and the executive director of the state Commission on Criminal and Juvenile Justice, said the governor felt the plan didn’t lighten the penalties enough.

Herbert, who is traveling in Israel this week, could not be reached for comment, Kirsten Rappleye, a spokeswoman for his office, said the governor’s position hasn’t changed from when he signed the legislation and he would like to see changes made before the bill takes effect.

Proponents of the 0.05 limit, including the National Transportation Safety Board, say people start to become impaired with a first drink and shouldn’t be driving and the lower limit will discourage people from thinking they can drink up to a point and drive safely.

"If we pass 0.05, people will live that would otherwise die if we do nothing," said Art Brown, president of the Utah chapter of Mothers Against Drunk Driving. "If you walk away from it the way it’s written, you can see it will diminish the effectiveness up and down about getting the impaired driver off the road."

At a blood-alcohol content of 0.05 percent, a driver may have trouble steering and have a harder time coordinating, tracking moving objects and responding to emergencies, according to the National Highway Traffic Safety Administration.

The new law means a 160-pound man could be over the 0.05 limit after two drinks, while a 120-pound woman could exceed it after a single drink, according to data from the California Department of Motor Vehicles.

However, a number of factors, including how much a person has had to eat and how fast they’re drinking, can affect their blood alcohol levels.

If Utah passes the lower limit BAC law, let’s hope that it doesn’t become a trendsetter for the rest of the states. For many people, a 0.05 percent blood alcohol content limit will mean that they’ll be subject to a DUI after only a glass of wine with dinner and who are clearly not under the influence nor a danger to the streets.

The purpose of DUI laws is to keep the streets safe, not to punish people who are not impaired with an arbitrary and subjective standard.

Wet Reckless vs. California DUI: What are the Differences?

Posted by Jon Ibanez on November 17th, 2017

People who have been charged with a California DUI always ask whether it’s possible to get the case reduced to a wet reckless. They often ask this question without even knowing what the difference is between a DUI and a wet reckless, except that it’s a reduced charge. While it’s true that it is a reduction to a DUI charge, there are a number of other differences.

The wet reckless if the first of several reductions that are sometimes offered in lieu of a DUI. The wet reckless is usually offered when the flaws in the prosecution’s case are relatively small. For example, the wet reckless is often offered when the chemical breath or blood test shows that the driver’s blood alcohol content is at a 0.08 percent or close. Further reductions may be offered when there is no chemical test and/or there is little evidence that the driver was “under the influence. Rather than risk losing at a trial, the prosecutor may offer a wet reckless or another reduction merely to secure a conviction.

If, however, the problems in the prosecution’s case are more than minor, the prosecutor may offer to reduce the DUI charge to a “dry reckless” or an “exhibition of speed.” Discussions on these, I’ll save for another day.

Unlike these other charges, the wet reckless can only be offered as a reduction. In other words, a prosecutor cannot file a criminal complaint with a wet reckless listed as a charge.

If the wet reckless is offered as a reduction and a DUI defendant accepts the reduction, they’ll  be pleading guilty or no contest to California Vehicle Code section 23103 pursuant to 23105.5 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.”

Simply put, a defendant who is convicted of a wet reckless is deemed to be guilty of reckless driving involving alcohol.

Now that we’ve clarified exactly what a wet reckless is, let’s talk about the benefits of it.

Well, first off, it’s not a DUI. There is an obvious stigma attached to a DUI conviction and a wet reckless simply isn’t a DUI.

Another benefit to a wet reckless reduction is that there are no mandatory sentencing enhancements. In other words, if a person is convicted for a second-time DUI within 10 years, they face a minimum of 96 hours in jail. If a person is convicted for a third DUI within 10 years, they face a minimum of 120 days in jail. However, when a person is convicted of a wet reckless when they’ve suffered prior DUI convictions within a 10 year period, there is no mandatory minimum jail sentence. If however a person suffers a DUI conviction within 10 years of a wet reckless conviction, the wet reckless will be used to increase the sentencing enhancements of the current DUI and subsequent DUI convictions.

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.

The last advantage to a wet reckless conviction is that it does not trigger a 6 month driver’s license suspension with the DMV. It should be noted, however, that a license may still be suspended through the DMV’s admin per se suspension which occurs if a person does not request a DMV hearing within 10 days of their DUI arrest or they lose their DMV hearing. Therefore, the only way to completely avoid any license suspension following a DUI arrest is to request the DMV hearing within 10 days of the arrest, win the DMV hearing, then get the DUI charge reduced to a wet reckless.