Hematocrit Defense in DUI Cases

 Hematocrit represents the fraction of whole blood composed of red blood cells and is correlated with the aqueous content of the blood.  The higher the hematocrit, the lower the concentration of water in the blood and vice versa, according to California DUI Attorney Matthew Ruff.  How does this issue play into a DUI case you may ask?  Put simply, the higher a hematocrit level, the higher a person's blood alcohol concentration.  With breath tests, the normal variation in the hematocrits of test subjects "can produce errors in ...results in the 10-14% range", according to some scientific studies.  When facing a DUI charge, it may be useful to have a test done to determine if this may be an issue. The hematocrit issue can vary the amount of alcohol present in the blood and not all humans are the same.  The breath machines do not factor in this variability.

What is the penalty for a refusal in California?

There are a number of penalties or consequences for DUI charges in California.  Perhaps the most severe of all penalties is that for a refusal to take a chemical test, breath or blood.  In addition to the Court consequences, the DMV will impose harsh sanctions if the driver is found to have refused a breath or blood test after having been arrested for drunk driving

The following are the administrative penalties for a DUI refusal

1. A First refusal within 10 years carries a one year drivers license suspension
2. A second refusal after a DUI conviction, wet reckless or admin per se suspension within 10 years is a 2 year license revocation.
3. A third refusal within 10 years is a 3 year revocation of your driving privilege.

In light of the very severe refusal penalties in California, it is advisable to seek legal representation for any refusal case.

The Dream Act, Reward for iIlegal Conduct?

The government lawmakers this week shot down the "dream act"  effectively denying young children of illegal immigrants the opportunity to become citizens and finally be a part of the United States as legal citizens.  Many believe this act was a reward to those that entered the US illegally, others say it rewards those who had no say in where they grew up and did the right thing by going to school and staying out of criminal trouble.  Time will tell which side eventually prevails.

Ticket Myths

There are few things that evoke more fear or loathing than getting stopped and ticketed by a law enforcement officer.  The legal process that follows can be quite daunting from the standpoint of mounting a defense or dealing with the problem.  One Lamont Speeding Ticket Attorney has assembled a list of common myths and half truths related to traffic tickets, it's worth taking a look at.

DUI While Parked

Penal Laws in the state of California define DUI as driving at a time when your mental or physical faculties are impaired to such a degree that you cannot operate a motor vehicle with the caution characteristic of a sober person. The interrogatory is frequently asked if a person can be arrested and charged with a DUI while they are parked in their driveway. The answer to this question depends on whether the police can establish actual driving. Obviously,  the law does not require that the police officer actually see the person driving, this element can be proven using circumstantial evidence. So, if the governmental officer sees the person pull into his own driveway and he is under the influence, game over. Further, if another witness sees the driving, same conclusion. Also, if evidence can be obtained to infer recent driving, IE. warm engine, admissions to recent drinking at the bar prior to arriving home, slumped over wheel while engine running, etc, all can be used to come to a rational conclusion that the person was driving. If other evidence, FST's breath tests and other evidence established that the person was impaired at the time of driving, a DUI case can be established.

DUI Law in the New Millennium

It is indeed axiomatic that as civilizations evolve there is a corresponding increase in new laws and regulations designed to conform the society to a given paradigm.  Criminal laws are no different.  In our current civil structure we have experienced this upward pressure particularly in the category of rules governing the use of motor vehicles, aka automobiles.  It is evident that the legislative bodies have concluded we are unable to think for ourselves and conform our behavior to basic common sense.  A good example of this is the criminalization of the use of cellular phones while driving and the use of active restraints such as seat belts.  DUI laws are also on the agenda and we will see an increase in legislative interaction into how we govern those that use alcohol and drive.

Another Good Reason Not to Take a PAS Test

We know that California law allows motorists over 21 and not on probation to refuse a roadside breath test known as a PAS.  The test however is usually a bad idea inasmuch as it provides additional evidence of intoxication relating to DUI that can be used against you in Court.  A recent case reiterates another good reason to refuse taking the test.

Defendant Thomas was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it. Defendant was let go after passing all tests, but instead of discarding the mouthpiece of the PAS device, the police preserved it for DNA testing. The DNA profile derived from the mouthpiece linked defendant to two burglaries. A DNA sample obtained after defendant’s arrest matched genetic material recovered from five of the burglaries. Additional evidence implicating defendant in the burglaries was found when police searched his home pursuant to a warrant after his arrest.

Defendant appealed his convictions of the crimes arguing that testing the mouthpiece of the PAS device for DNA was a search that could not be conducted without a warrant under the Fourth Amendment to the United States Constitution. The appellate court however disagreed holding that the DNA test was not a search because defendant abandoned any privacy right he had in the saliva he deposited on the police device.  The Court ruled that the Fourth Amendment protects against unreasonable governmental searches and seizures. A search occurs only when a government activity intrudes on an individual’s reasonable expectation of privacy, measured by the individual’s subjective expectation of privacy in the item searched and society’s objective recognition of the reasonableness of the individual’s subjective expectation of privacy.  People of California vs. Thomas.