Investigation of DUI Cases: Give Examples of Non-Standardized FST¡¦s by Darren Kavinoky Investigation of DUI Cases: Give Examples of Non-Standardized FST¡¦s: How to be given, what clues, what they mean. Law enforcement agencies employ a number of different field sobriety tests to determine enough probable cause to make an arrest for drunk driving. The National Highway Traffic and Safety Administration (NHTSA) has conducted studies which have determined that some tests are accurate indicators, to a degree, of a blood alcohol content (BAC) above .10%. However, law enforcement ... Investigation of DUI Cases: OLS by Darren Kavinoky Investigation of DUI Cases: OLS The One-Leg Stand (OLS) is a test that is performed in a stationary position. If administered properly, the OLS has a 65% accuracy rate in determining a blood alcohol content (BAC) above .10%. Proper administration of the OLS requires a reasonably dry, hard, level and non-slippery surface. If the subject is wearing heels above 2 inches, they should be allowed the opportunity to take them off. Stage 1: Instructions and Standing Position The officer ... Investigation of DUI Cases: What Physical Symptoms? by Darren Kavinoky Investigation of DUI Cases: What Physical Symptoms? Why are they Significant? Officers will observe the physical appearance of the alleged intoxicated driver very closely. This is done to determine symptoms of intoxication in order to form the basis of arrest (probable cause). The symptoms will be included in the arrest report for the use by the prosecuting attorney in the prosecution of the driver for DUI. The type of alcohol that is safe for human consumption is called ethanol. Et ... Investigation of DUI Cases: Walk and Turn (WAT) by Darren Kavinoky Investigation of DUI Cases: Walk and Turn (WAT) The Walk and Turn (WAT) is a walking test. If administered properly, the WAT is 68% accurate in determining blood alcohol content (BAC) above .10%. In order to be administered properly, the test must be conducted on a reasonably dry, hard, level, and non-slippery surface. There should be a designated straight line. However, courts have allowed the introduction of the results of this test into evidence where there has not been a designated ... Investigation of DUI Cases: What are the SFST’s? by Darren Kavinoky Investigation of DUI Cases: What are the SFST’s? How do CA courts deal with FST’s that are not performed in accordance with NHTSA? The National Highway Traffic and Safety Administration (NHTSA) has done extensive studies of field sobriety testing (FST’s) in order to determine the probability of intoxication. Law enforcement agencies have utilized FST’s for many years to develop probable cause for arrest and as evidence to be used in the prosecution for drunk driving. However, not all FST ... Jury Instructions by Darren Kavinoky Jury Instructions Jury instructions are the judge's directions to the jury before it begins deliberations regarding the factual questions it must answer and the legal rules that it must apply. Although the court has discretion to give instructions at the beginning of trial, it is customary to give the instructions after closing argument. Jury instructions tell the jury what the laws are that govern a particular case. Jury instructions include defining the elements of the charge offense ... Plea Bargaining: When is a DUI a felony? by Darren Kavinoky Plea Bargaining: When is a DUI a felony? How many theories are there to make a DUI a felony, what are requirements? What are the potential sentences for each? What is a wobbler, and how does it relate to felony DUI cases based on accidents? Prior Convictions? A felony is a crime punishable by imprisonment in the state prison, for over one year. The length of punishment is determined by a low, mid, and high term, usually 16 months, 2 years, and 4 years, respectively. A DUI can be a misd ... Plea Bargaining: How do the following differ from a DUI: by Darren Kavinoky Plea Bargaining: How do the following differ from a DUI: Wet Reckless, Dry Reckless, Exhibition of Speed The prosecutor and defense counsel can agree to a lower charged offense, as a result of what is known as “plea bargaining.” Plea bargaining usually results in a lower-charged offense and/or a lighter sentence in exchange for a guilty or nolo contendere plea by the defendant. However, the judge in the case must approve the plea bargain in order for it to be effective. There are many ... Arson by Darren Kavinoky Arson Arson is considered a general intent crime. This means that the defendant need not have intended the specific results, namely the burning of a structure, forest land, or property. What matters are the actions that the defendant undertook that caused such a result. Generally, a person cannot commit ¡§arson¡¨ against his own property, unless there is intent to defraud or where there is injury to someone else¡¦s body or property. Arson is considered a dangerous felony, which requires ... Hit and Run: Property Damage by Darren Kavinoky Hit and Run: Property Damage Hit and run is generally defined as a criminal act. Where the collision is with property only, such as another vehicle with no occupants, the driver must leave information attached to the damaged property, as well as make a report to the police. These duties do not implicate the driver in terms of being responsible for the accident. Whether the driver caused the accident or whether it was caused by another person’s negligence, the duty to stop and report the ... Intro to Property Destruction by Darren Kavinoky Intro Property damage is punishable under the law by fines, imprisonment, and community service. Property damage means many things, from scrawling graffiti on a park bench, hitting something with your car, to causing a fire which damages property. Property damage can be minor to very great. The level of damage will increase the fines and the amount of imprisonment. Convictions for property damage may be misdemeanors, felonies, or ¡§wobblers.¡¨ A misdemeanor is a crime punishable by i ... Recklessly Causing Fire by Darren Kavinoky Recklessly Causing Fire Recklessly causing a fire is defined by California Penal Code Section 452 which states, “A person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned, any structure, forest land or property.” Recklessness occurs when a person knows that one's actions have an unjustifiable risk of leading to a certain result, but did not care about that risk and acted anyway. The classification of this crime is a misdemeanor or a fel ... Vandalism by Darren Kavinoky Vandalism California law makes it a crime to deface, damage, or destroy the real or personal property belonging to another person. The crime is termed ¡§vandalism,¡¨ which is a misdemeanor, unless the monetary damage is great, and then it is a felony. A misdemeanor is a crime punishable by a term in the county jail for no more than a year. A felony, on the other hand, is punished by a term in the state prison. Some vandalism crimes are referred to as ¡§wobblers.¡¨ Wobblers are punishable ... Refusals by Darren Kavinoky Refusals When a person has been lawfully arrested for a DUI, they are mandated to take a chemical test. If a person refuses, his or her license will immediately be confiscated by the law enforcement officer pursuant to their authority to do so in order to send the license to the Department of Motor Vehicles (DMV) for an Administrative Per Se (APS) hearing. The refusal will be utilized in a criminal case, as a ¡§consciousness of guilt.¡¨ Additionally, evidence of the refusal can be used as ... Legal Requirements of Roadblocks: The Ingersoll/Palmer factors by Darren Kavinoky Legal Requirements of Roadblocks: The Ingersoll/Palmer factors The Supreme Court of California rendered a decision on the premiere California roadblock case, Ingersoll v. Palmer, in 1987. This decision set the standard for how law enforcement agencies must conduct roadblocks, otherwise known as sobriety checkpoints. The Supreme Court identified a number of factors for minimizing the intrusiveness on the individual while balancing the needs of society in keeping drunk drivers off the road: ... Roadblocks: What types of Roadblocks allowed? by Darren Kavinoky Roadblocks: What types of Roadblocks allowed? Roadblocks have been established to be “seizures” under the Fourth Amendment. The Fourth Amendment states that a person should be free from unreasonable searches and seizures of their person and their belongings, absent individualized suspicion of wrongdoing. The touchstone for all issues under the Fourth Amendment is reasonableness. Federal constitutional principles require a showing of either the officer’s reasonable suspicion that a crime ... Roadblocks: How are they justified in light of the Fourth Amendment? by Darren Kavinoky Roadblocks: How are they justified in light of the Fourth Amendment? Aren’t these warrantless searches and seizures, and therefore unreasonable? A roadblock, also known as a sobriety checkpoint, is a temporary stop-point operated on a public road, which must be governed by established guidelines, set out by the California Supreme Court in the premiere roadblock case, Ingersoll v Palmer. A sobriety checkpoint roadblock must have advance notice to the public, set up by policymaking officials ... Roadblocks: What is the means to challenge a roadblock we believe to be illegal? by Darren Kavinoky Roadblocks: What is the means to challenge a roadblock we believe to be illegal? It is well-established law that searches and seizures are unreasonable under the Fourth Amendment, absent individualized suspicion of wrongdoing. There are very few exceptions to this general rule. In order to be constitutional, DUI sobriety checkpoint roadblocks must follow specific guidelines set forth by the U.S. Supreme Court and the California Supreme Court. The first step in fighting a roadblock cas ... Sentencing Alternatives: Alcohol and Drug Rehabs by Darren Kavinoky Sentencing Alternatives: Alcohol and Drug Rehabs Incarceration in the county jail offers no rehabilitative benefit for the DUI offender. Unfortunately, some people have addiction problems to alcohol that are simply not addressed with being punished by incarceration. A large number of people get into serious trouble because of their drinking. Currently, nearly 14 million Americans—1 in every 13 adults—abuse alcohol or are alcoholic. Several million more adults engage in risky drinking that ... Sentencing Alternatives: Caltrans Freeway Cleanup by Darren Kavinoky Sentencing Alternatives: Caltrans Freeway Cleanup Instead of sitting in the county jail as the result of a DUI conviction, DUI offenders can be sentenced to work on a Caltrans Freeway Cleanup crew as a term of their probation. The number of hours required to work with Caltrans is equal to the number of hours that would have otherwise been spent being incarcerated. This is known as good time/work time custody credits. Every hour spent working for Caltrans counts against the hours that woul ... Alternative Sentencing: Community Service by Darren Kavinoky Alternative Sentencing: Community Service Where the court has the ability to sentence the DUI offender to a term of incarceration in the county jail, the court may choose to allow the defendant to serve the hours that would have been spent in county jail instead on community service. Community service is a special condition the court imposes that requires an individual to work–without pay–for a civic or nonprofit organization. Performing community service has many benefits. The tax payers ... Sentencing Alternatives: Electronic Monitoring by Darren Kavinoky Sentencing Alternatives: Electronic Monitoring Electronic monitoring, also known as “house arrest” allows the convicted DUI offender to stay at home instead of being incarcerated in the county jail. There are many types of electronic monitoring devices. Some attach to the wrist, others to the ankle. Either the device will send a signal to a computer at the probation office or the manufacturer’s business. Another type of monitoring device involves equipment which is strapped to the DU ... Sentencing Alternatives: Ignition Interlock Devices by Darren Kavinoky Sentencing Alternatives: Ignition Interlock Devices When someone is convicted of a DUI, the court may require that a person convicted of a first offense violation of Section 23152 or 23153 to install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. The court shall give heightened consideration to applying thi ... Sentencing Alternatives: SCRAM by Darren Kavinoky Sentencing Alternatives: SCRAM SCRAM is an alcohol monitoring program that is intended for the multiple DUI offender who would otherwise be facing mandatory incarceration. Instead of incarceration, some courts will allow the DUI offender to participate in an alternative sentencing program utilizing a monitoring device called SCRAM. SCRAM (Secure Continuous Remote Alcohol Monitor) is a device which is attached to the ankle and monitors blood alcohol levels by measuring ethanol vapor as it ... Sentencing Alternatives: What kind of sentencing alternatives are available in DUI cases? by Darren Kavinoky Sentencing Alternatives: What kind of sentencing alternatives are available in DUI cases? The penalties for conviction of a DUI are harsh and include large fines, jail time, and mandatory alcohol education classes. Conviction for multiple DUIs only increases the amount of punishment. Because of the harsh nature of DUI sentencing laws, courts have developed alternative sentencing options. Sentencing alternatives increase the options available for punishment, allowing for greater plea barga ... | ||||||
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