Monthly Archives: November 2019
On July 5th of this year, Juan Francisco Moreno Herrera, 43 of Salida, California, was arrested on suspicion of murder after a collision between Herrera’s boat and a jet ski carrying a couple of teenagers. It was alleged that Herrera was operating his boat under the influence and, as a result, collided Vanessa Zamora, 14, of Watsonville, California, killing her and causing injuries to her 15-year-old cousin. Prosecutors also charged Herrera with two felony counts of driving a boat under the influence of alcohol.
Initially, according to prosecutors, Herrera caused the injuries to the girls because he was driving “his boat around in circles and did not attempt” to help either injured girl in the water following the collision.
Under California Law, a DUI resulting in death will be charged as manslaughter if the driver has not suffered any prior DUI-related convictions. If, however, the driver has suffered a prior DUI-related conviction, they will likely be charged with second degree murder under California’s “Watson Murder Rule.” Under Watson, the California Supreme allowed murder to be charged in a subsequent DUI resulting in death because the driver was made aware of the dangers of drunk driving after having been sentenced on the prior DUI. It is almost as if the court is saying, “We warned you, you did it anyways, and now look at what happened.”
Herrera had been convicted of a DUI in the past, which allowed prosecutors to charge murder. As a result, Herrera had been in jail since his arrest, unable to afford the $2 million bail bond.
Kirk McAllister, Herrera’s attorney, however, believed the allegations to be false and his law firm conducted its own investigation into the collision.
Following McAllister’s investigation, it was learned that the girls had, in fact, collided into Herrera, not the other way around. What’s more, Herrera did, in fact, jump into the water to help Vanessa’s cousin stay afloat.
McAllister’s findings directly contradicted an affidavit filed by the Sheriff’s department alleging that “two independent witnesses” said that Herrera was driving his boat in circles and did not render aid. The affidavit, however, failed to identify the witnesses, and the sheriff’s department has refused to answer questions about the accuracy of the affidavit.
“What our investigation showed was that in fact they ran into him. In boating terms, he had the right of way. They hit him on the port side, or the left side. … He did the right thing, he powered down (the boat),” said McAllister to the Modesto Bee. “He had a terrible choice to make: One girl was not moving, the other girl was flailing in the water. He chose the one who was flailing because she was showing signs of life, obviously. He kept her afloat until another boat came.”
McAllister’s findings were submitted to the Stanislaus County District Attorney, and last month, the prosecution dropped the felony DUI charges and murder charge. Michael Scheid, the prosecutor assigned to the case, filed an amended complaint against Herrera alleging only misdemeanor boating under the influence charges.
Although the result might not sit well with some readers, the law requires it.
As the District Attorney’s Office itself recognizes, “[i]t is not enough to prove that someone who drank alcohol and was piloting a boat got involved in a collision where someone died,” said John Goold, a spokesman for the District Attorney’s Office.
By law the prosecution must prove every element of a crime beyond a reasonable doubt, and one element to the crime of second degree murder via DUI (or BUI) is that Herrera “did an act or neglected any duty imposed by law…which act or neglect proximately caused the bodily injury.” Based on McAllister’s investigation, Herrera simply did not.
“In this case, ongoing investigation led us to the inescapable conclusion that we could not prove all the elements beyond a reasonable doubt, which led to the filing of the amended complaint,” said Goold rightly so.
Following the amended complaint and dropping of charges, Herrera was released from custody on his own recognizance.
“I was in hell; that’s hell in there,” Herrera said following his release, recalling his time in jail awaiting prosecution. “Just thinking about my family. What was going to become of my kids and myself? Being in there for something that I didn’t do.”
Go ahead and ask Juan Francisco Moreno Herrera whether it’s a good idea to hire a criminal defense attorney when facing California DUI charges. In his case, it was the difference between a misdemeanor DUI and a murder.
Herrera still faces those misdemeanor DUI charges and expected in court this month.
Last week, a school bus driver from Paradise, California was arrested on suspicion of driving under the influence of alcohol after several students riding on her bus, as well as parents of children on that bus, reported that she may have been drunk.
Students and their parents called 911 to report that the school bus driver, Desiree Ann Abrams, was speaking loudly, interacting inappropriately with the students, and smelled as though she had been drinking.
“When we got on the bus that day, she was kind of slurring her words. I thought she was just having a really good day but when I sat down she was stopping people and asking them questions what’s your middle name, how old are you, you’re looking pretty good today,” Dustin Jones, an eighth-grader at Paradise High School, told local news outlet KRCR.
When CHP officers arrived, they observed signs commonly associated with being intoxicated and determined that Abrams was driving under the influence.
According to law enforcement, no students were on board of the bus at the time of the DUI stop because they had already been dropped off at their regular stops.
“I thought she was just joking around until I saw she got arrested then I believed it,” said Phenix Rye, a junior at Paradise High School.
Paradise Unified School District confirmed the incident.
“A Paradise Unified School District bus driver was arrested on 11-15-19. District Administration was present at the scene and confirmed that students were safe and secure. We are grateful for the prompt response of both the Butte County Sheriff’s Office and the California Highway Patrol as well as the courageous actions of students and families. As always, student safety remains our top priority. Resources will be made available for students that may need additional support. Thank you for your understanding and support in this ongoing process.”
Abrams is out on bond and facing DUI charges and child endangerment.
Not only is Abrams looking at the punishment under California’s DUI law, she is also looking at additional penalties because of the danger that she placed the student in.
Under California Vehicle Code section 23572, California’s child endangerment DUI enhancement law, a first time DUI conviction where a minor under the age of 14 is in the car will bring an additional 48 hours in a county jail. A second time DUI conviction will bring an additional 10 days in jail. A third time will bring an additional 30 days in jail. A fourth will bring an additional 90 days. Furthermore, these penalties are to be served consecutively, not concurrently with the underlying DUI penalties.
The prosecutor need only prove that the driver was driving under the influence and that there was a minor child under the age of 14 in the car when that person drove.
The students being transported by Abrams, however, were high school students whose ages generally range from 14 to 18. If so, how can Abrams be charged with child endangerment for a DUI if the enhancement only applies to children under the age of 14?
Often times, prosecutors will charge child endangerment as a separate and whole charge against a person under the Penal Code, not as a mere enhancement to a DUI under the Vehicle Code.
California Penal Code section 273(a) makes it illegal for an adult to 1.) cause or permit a minor to suffer unjustifiable physical pain or mental suffering, 2.) cause or permit a minor to be injured, or 3.) cause or permit a child to be placed in a dangerous situation.
The crime of child endangerment, if a misdemeanor, carries up to one year in county jail and up to a $1,000 fine. However, if the risk to the child or children included death or “great bodily injury,” a felony child endangerment conviction carries two, four, or six years in a California state prison, and a fine of up to $1,000.
It should be noted that a person arrested for a DUI with a child in the car cannot be punished under both the Vehicle Code’s enhancement law and the Penal Code’s child endangerment law. Thus, if Abrams is found guilty, she’ll be punished for the DUI, and either the child endangerment enhancement or a separate child endangerment conviction.
It is not uncommon for people arrested on suspicion of a California DUI to mistaken believe that it is in their best interest to flatly refuse the breathalyzer. Not knowing the correct thing to do in this scenario can be the difference between becoming convicted of a California DUI and not, and unfortunately, the right thing to do is a little more complicated than merely refusing the breathalyzer or not.
When people refer to a “breathalyzer” during a California DUI stop, they actually referring to two different tests. The first is the roadside breathalyzer, often called a preliminary screening alcohol test or “PAS” test, and the second is the “chemical breath test.”
According to California Vehicle Code section 23612(h), the PAS test “indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving [under the influence]…[it] is a field sobriety test and may be used by an officer as a further investigative tool.”
The PAS roadside breath test, like other field sobriety tests such as the walk-and-turn test, the horizontal gaze nystagmus test, and the one leg stand test, are optional. Although an officer might threaten to arrest someone for refusing the optional breathalyzers, a driver should stand their ground and politely refuse to complete any field sobriety tests. Despite what the officer might say, they are optional and are only meant to give the officer the evidence they need to arrest the driver.
In fact, the officer must advise the driver that the roadside breath test is optional. California Vehicle Code section 23612(i) states that “If the officer decides to use a [PAS], the officer shall advise the person that he or she is requesting that person to take a [PAS] test to assist the officer in determining if that person is under the influence. The person’s obligation to submit to a [chemical test under California’s Implied Consent Law] is not satisfied by the person submitting to a [PAS] test. The officer shall advise the person of that fact and of the person’s right to refuse to take the [PAS] test.”
As stated above, providing a breath sample to an officer during the PAS test only give the officer the evidence they need to arrest a driver. Whether a driver provides the officer that information or not, the officer will have to make the decision to arrest a driver on suspicion of a DUI or not. In order to arrest a driver on suspicion of a California DUI, the officer must have probable cause. The probable cause can consist of driving patterns indicative of intoxication, bloodshot eyes, slurred speech, smell of alcohol on a driver’s breath, admissions of drinking or intoxication, and, yes, a reading of the pass test indicating a BAC of 0.08 percent or higher.
If the officer meets the probable cause standard by obtaining and/or observing enough evidence that a driver is driving under the influence, the officer can lawfully arrest the driver on suspicion of driving under the influence. Once this happens, California’s Implied Consent law takes effect.
California’s Implied Consent law, codified in California Vehicle Code section 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 alcohol content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of [California’s DUI laws].”
Simply put, if you have a license and you drive in California, you have impliedly consented to submit to the chemical test after you have lawfully been arrested for a DUI, which can either be a breath test or a blood test. If the driver opts not to give blood, then they must provide a breath test. Conversely, if a person opts against the breath test, they must submit to the blood test.
So should you pass on the breathalyzer?
Pass on the roadside “PAS” test. Submit to the chemical test required under California’s Implied Consent law (See Breath or Blood Test After a California DUI Stop).
I’ve been saying and writing about it for years; breathalyzers are inaccurate. Now, The New York Times, in a bombshell report confirmed exactly that.
According to the report, “The Times interviewed more than 100 lawyers, scientists, executives and police officers and reviewed tens of thousands of pages of court records, corporate filings, confidential emails and contracts. Together, they reveal the depth of a nationwide problem that has attracted only sporadic attention.”
With so much at stake, including jail, you’d think that there would be more than mere “sporadic attention.”
Yet, the report found numerous inconsistencies with maintenance procedures of breathalyzer machines, inconsistencies within the machines themselves, and an over reliance on inaccurate data produced by breathalyzers.
In Colorado, for example, police had continued using a chemical solution that had long been expired when prepping the machines. The expired solutions caused inaccurate results. In another example, a former manager created his own chemical solution inconsistent with the standard chemicals used in the solution. In some instances, there were no standards on how to prepare and operate the machines.
The report also found that the manufacturing process of the breathalyzer machines also create inaccuracies. For example, testing revealed that some machines produced a result even though the software programed into the machine occurred. Some tests revealed that accuracy of reading was affected by external factors such as the temperature of a person’s breath, whether they’ve consumed breath mints, or whether they’ve recently brushed their teeth, to name a few.
Despite the known inaccuracies, breathalyzer machines continue to often be the deciding factor in a DUI conviction.
In 2013, the California Supreme Court held that, although breathalyzers are generally inaccurate, scientific evidence challenging the accuracy of breathalyzers in California is not admissible as evidence in DUI trials.
The holding comes from the 2007 DUI stop of Terry Vangelder. Vangelder was stopped for speeding in San Diego. Although having admitted to consuming some alcohol, Vangelder passed field sobriety tests. Vangelder then agreed to a preliminary screening alcohol test (an optional roadside breathalyzer) which indicated that Vangelder’s blood alcohol content was 0.086 percent. Based on that, Vangelder was arrested and transported to the police station where he submitted to a chemical breath test (a required post-arrest breathalyzer). This breath test showed a blood alcohol content of 0.08 percent. Vangelder then submitted to a blood test which indicated that his blood alcohol content of 0.087 percent.
At trial, Vangelder called Dr. Michael Hlastala, a leading authority on the inaccuracies of breathalyzers.
“They are (inaccurate),” Dr. Hlastala testified before the trial judge. “And primarily because the basic assumption that all of the manufacturers have used is that the breath that [is] measured is directly related to water in the lungs, which is directly related to what’s in the blood. And in recent years, we’ve learned that, in fact, that’s not the case.”
The judge however, did not allow the testimony and Vangelder was found guilty. Vangelder appealed and the appellate court reversed the decision in 2011. San Diego City Attorney, Jan Goldsmith, then appealed the appellate court decision arguing that such testimony would undermine California’s a per se law making it illegal to drive 0.08 percent blood alcohol content or higher.
Unfortunately, the California Supreme Court sided with Goldsmith.
“[T]he 1990 amendment of the per se offense was specifically designed to obviate the need for conversion of breath results into blood results — and it rendered irrelevant and inadmissible defense expert testimony regarding partition ratio variability among different individuals or at different times for the same individual,” Chief Justice Tani Gorre Cantil-Sakauye wrote for the court. “Whether or not that part of expired breath accurately reflects the alcohol that is present only in the alveolar region of the lungs, the statutorily proscribed amount of alcohol in expired breath corresponds to the statutorily proscribed amount of alcohol in blood, as established by the per se statute.”
The Court went on to say that, “Although Dr. Hlastala may hold scientifically based reservations concerning these legislative conclusions, we must defer to and honor the legislature’s reasonable determinations made in the course of its efforts to protect the safety and welfare of the public.”
Simply put, the California Supreme Court is willfully ignoring scientific evidence simply because the legislature was well-intentioned.
Although drivers can no longer challenge the accuracy of breathalyzers in general, a driver who has been arrested for a California DUI can still challenge the accuracy of the specific breathalyzer machine used on them.