Sacramento Criminal Defense Lawyer Blog

Brandon Mullock, the Sacramento police officer arrested in January for brandishing a firearm while off-duty - and since that incident accused of filing falsified reports on DUI arrests - has resigned. Mullock had been on administrative leave since his arrest.

During its investigation of the January arrest, the Sacramento Police Department discovered irregularities in reports filed by Mullock on several DUI cases. Specifically, the details in Mullock's reports differed from the evidence provided by audio and video recordings made by equipment in Mullock's police vehicle.

The Sacramento District Attorney's Office has already dismissed charges in two of those cases, and nearly 200 more of Mullock's DUI arrests are under review. The DA's Office is not able to say at this point how many other cases will be affected.

A hearing on the reviewed cases has been scheduled for September 17 at 1:30 PM in department 9 of the Sacramento county courthouse.

Mullock had been with the department for three years and a member of the DUI task force since October 2009.

"Officer Resigns after Criminal Investigation," Sacramento Police Department new release, August 31, 2010

"Prosecutors review nearly 200 cases tied to former officer," Sacramento Bee, August 31, 2010

In recent posts we've covered separately Miranda rights and California DUI law. It's important to be aware, however, how Miranda applies to DUI, including some important limitations.

People often ask these questions: "When I was arrested for DUI, the officer did not read me my Miranda rights. Isn't that a violation of police procedure? Doesn't that somehow compromise the prosecution's case?"

The answers to those questions are usually no and no. Here's why.

Your Miranda rights are the following:

• you have the right to remain silent;
• any statements you make may be used against you in a court of law;
• you have the right to an attorney;
• if you can't afford an attorney, the court will appoint one.

This Miranda warning concerns your rights when two conditions are met: first, you are in police custody (i.e., you've been arrested and detained); second, you are being subjected to an interrogation (the police are asking you questions about the alleged crime).

If the police pull you over for suspicion of DUI, they will pose a series of questions to determine if you are impaired. These questions are considered an investigation that precedes an arrest. Keep in mind the conditions listed above that require police to advise you of your Miranda rights: arrest, detention, and interrogation. Pre-arrest investigative questions do not constitute a Miranda violation.

It's also important to understand that any comments you make during a casual conversation with the officer may be used against you. For example, let's say that you talk with the officer while being transported from the arrest scene to the jail. If the officer has not initiated a formal interrogation about the alleged crime, then Miranda does not apply.

Finally, if you are pulled over for suspicion of DUI, you are within your rights to inform the officer that you do not wish to answer any questions. If the police wish to interrogate you, a Miranda warning should be given and you should seek the advice of an attorney before answering any questions.

If you have any questions about DUI and Miranda rights, call the Law Office of Nancy King at (916) 442-1200.

The Department of Motor Vehicles has issued a memo that states that all people convicted of DUI in Sacramento County - regardless of their county of residence - will be required to install Ignition Interlock Devices on their vehicles as part of a test program created under Vehicle Code 23700. Sacramento County is one of four counties in California - including Los Angeles, Alameda, and Tulare - that were required by the passage last year of AB 91 to establish these DUI test programs for evaluation through 2016.

The memo (Occupational Licensing Industry News - OLIN 2010-08) specifically declares:

Individuals convicted of driving under the influence (DUI) under Vehicle Code (VC) §§23152, 23153, or Penal Code (PC) §191.5(b) in one of the four pilot counties must install a certified IID on any vehicle that he/she owns or operates, before a driver license can be issued, reissued, or the driving privilege reinstated. The IID requirement is determined if the conviction occurs in one of the four pilot counties; not the driver's county of residence.

If you have questions about this new law, or other California DUI laws, call the Law Office of Nancy King at (916) 442-1200.

Occupational Licensing Industry News - OLIN 2010-08

Three local police departments have announced that they will be conducting traffic checkpoints the night of Friday, July 13. The Sacramento, Folsom, and Rancho Cordova police departments are all using grants from the California Office of Traffic Safety and the National Highway Traffic Safety Administration to fund these efforts to check drivers for sobriety, as well as valid driver's licenses.

Folsom PD will run its checkpoint from 7:00 PM to 3:00 AM and Rancho Cordova PD will run its from 8:00 PM to 2:00 PM. Sacramento PD has not stated when its checkpoint will begin and end. At this point, the precise locations for each checkpoint have not been made public.

As always, we advise you to take the steps necessary to keep yourself and others safe if you plan on going out drinking tomorrow night. That means, choose a designated driver, put taxi phone numbers into your cell phone, hire a limo, or take public transportation. Police and prosecutors in the Sacramento region treat DUIs severely. A few minutes spent planning or a few dollars spent on transportation can save you a lot of money and aggravation by avoiding arrest for driving while intoxicated.

If you have any questions about California's DUI laws, call the Law Office of Nancy King at (916) 442-1200.

Folsom PD press release
Sacramento PD press release
Rancho Cordova press release

Effective July 1, 2010, Vehicle Code Section 13352 was amended to incorporate the provisions of SB 598 and SB 895, laws enacted by the legislature and governor providing for shorter license suspension periods for 2nd and 3rd DUIs in exchange for installation of Ignition Interlock Devices. It is important to remember that this is a statewide law and is distinct from the Ignition Interlock Device test program that is being run in Sacramento, Los Angeles, Tulare, and Alameda counties. Click here for details on that program, detailed in VC 23700.

VC 13352(a)(3) states that drivers convicted of a second DUI within a ten year period may get a restricted license after 90 days if they install Ignition Interlock Devices (IID) on their vehicles. (A restricted license allows driving to and from work and in the course of employment, and to and from DUI related education classes.) If IIDs are not installed, the term of license suspension is two years.

VC 13352(a)(5) states that drivers convicted of a third DUI within a ten year period may get a restricted license after six months if they install IIDs on their vehicles. If IIDs are not installed, the term of suspension is three years.

Driving under the influence offenses that involve reckless driving, drugs, injuries, or factors can result in enhanced penalties.

The following requirements must be met to qualify for a restricted license under VC 13352:

• Proof of enrollment in, and continuing satisfactory participation in, an 18 month or 30 month DUI education program;
• Proof of installation of an Ignition Interlock Device;
• Proof of insurance;
• Payment of all related fees and of all administrative costs associated with the new law's provisions.

As mentioned in previous blog posts, we are still waiting for a statement from DMV about to whom precisely the law will apply. We will post that information as soon as it becomes available.

If you have questions about this new Ignition Interlock Device law, contact the Law Office of Nancy King at (916) 442-1200.

The Department of Motor Vehicles has posted on its website a memo that outlines how it will handle the Ignition Interlock Device test programs that will take effect on July 1 in Sacramento, Tulare, Alameda, and Los Angeles counties. [Click here to read a summary of the new law's provisions.]

The memo states that "The new law - passed by the Legislature and signed by Governor Schwarzenegger in 2009 -- prohibits an offender from being issued or reissued a driver license by DMV following a suspension or revocation for any DUI violation in a pilot county that occurs on or after July 1, 2010, until an offender provides proof of IID installation and pays a $45 administrative service fee, in addition to meeting all other reinstatement requirements."

Note that DMV is taking the position that the test program applies only to violations that take place on or after the law takes effect on July 1.

We will monitor this issue and let you know if this changes. Also, we will watch for DMV's policy regarding the other ignition interlock device (IID) law that takes effect throughout the state on July 1 as well. That new law provides repeat DMV offenders the option to get a restricted license sooner than has been allowed under existing law if IIDs are installed on all vehicles driven by the convicted person.

"Ignition Interlock Law Takes Effect July 1 - Five-year pilot would study effectiveness in selected counties," Department of Motor Vehicles

SB 895 - legislation intended to clarify the law pertaining to obtaining a restricted license after conviction of a DUI - was signed by Governor Schwarzenegger on Tuesday. As of July 1, people convicted of a 2nd DUI within a 10 year period will be eligible for a restricted license after 90 days, and people convicted of a 3rd DUI within a 10 year period will be eligible after 6 months. These requirements must be met:

• Proof of enrollment in a driving-under-the-influence education program;
• Installation of ignition interlock devices on vehicles used by the convicted person, who is responsible for all installation costs;
• Proof of insurance;
• Payment of all pertinent fines and fees;
• Payment of administrative costs to the DMV for oversight of the installation.

Click here for more information on these new rules regarding DUI.

Click here for the text of SB 895.

Contact the Law Office of Nancy King if you have questions about this topic or others covered in our blog.

Last year the California legislature and Governor Schwarzenegger passed a law (SB 598) that would give people convicted of 2nd and 3rd DUIs the option to obtain a restricted driving license sooner than under existing law if they agreed to install ignition interlock devices (IIDs) on their vehicles. (Ignition interlock devices require the driver to blow into a device that tests for alcohol on the breath. If any alcohol is present, the vehicle will not start.) Because of ambiguity in the law's text, however, "clean up" legislation has been introduced to clarify the law's intent.

The confusion stems from the fact that in California people convicted of DUI face two separate processes that can result in suspension of driving privileges. The first takes place in the courts, which upon conviction of Vehicle Code 23152 (a) or (b) can suspend a driver's license. The second takes place through the Department of Motor Vehicles, which through an Administrative Per Se hearing can also suspend a driver's license for driving with a blood alcohol content of 0.08% or higher.

The language of SB 598 focuses on court proceedings and omits mention of the DMV process. SB 895 has therefore been introduced to fix this oversight. Passage of the legislation appears imminent.

What this means is that people convicted of a second DUI within a 10 year period will have the option of getting a restricted license 90 days into their license suspension period if they agree to install ignition interlock devices on their vehicles. People convicted of a third DUI with a 10 year period will have the option of getting a restricted license 6 months into their license suspension period if they install IIDs. A restricted license allows driving related to employment and to and from alcohol education classes.

Our understanding at this time is that the new law will apply only to arrests made on or after July 1, 2010. [Note: This issue remains unsettled as of 6/15/10. We will update the blog as information becomes available.]

If you have questions about this topic, or others covered in our blog, contact the Law Office of Nancy King at (916) 442-1200.

A bill that would have substantially increased penalties for DUI convictions was watered down before being passed out of the Assembly Appropriations Committee.

The proposed law, authored by Jerry Hill (D-San Mateo), would have given judges the authority to impose a lifetime ban on driving after three DUI convictions. Instead, the bill gives judges the ability to revoke a license for 10 years. Current state law suspends driving privileges for three years after a third DUI conviction. Also removed by the committee was language that allowed consideration of a driver's lifetime record for DUI conviction. Current law limits consideration to the previous 10 years.

Hill claimed that budget limitations were the primary reason the bill was amended. It was estimated that the bill would have cost $10 million a year to house the additional people who would have been sent to prison due to conviction for felony DUI, which comes after a fourth DUI conviction. Felony DUI convictions would have increased if the bill's provision to allow consideration of a driver's lifetime record had been retained.

The California DUI Lawyers Association argues that a better solution is installation of Ignition Interlock Devices, which require drivers to blow into an alcohol detection device before starting their cars. If any alcohol is present, the ignition will not operate.

If you have questions about DUI laws in California, call the Law Office of Nancy King at (916) 442-1200 for a free and confidential consultation.

San Mateo County Times, May 28, 2010

Last year the California legislature and the governor enacted a new law that establishes test programs in Sacramento, Tulare, Alameda, and Los Angeles counties requiring the installation of Ignition Interlock Devices on vehicles used by people convicted of DUI. (Click here for a summary of the bill's provisions.) That bill (AB 91) has been codified as Vehicle Code section 23700 and has been funded through a grant from the Office of Traffic Safety.

As of this date, the new law will apply only to DUI violations that occur on or after July 1, 2010. What that means is that citations for DUI that occur on or before June 30 will not be subject to the new law even if the conviction occurs after the law takes effect. It also means that people who receive DUI citations in the next month should not feel compelled to resolve their cases before the new law takes effect to avoid the IID requirement.

If you have any questions about the new law or other DUI codes, call the Law Office of Nancy King at (916) 442-1200.

The police departments of Davis, Woodland, and West Sacramento - in cooperation with CHP - will have increased DUI patrols on May 5th. Advertisement of these patrols is meant to discourage people from driving after drinking at Cinco de Mayo celebrations, as well as provide the resources to identify and arrest those people who do drink and drive.

No specific checkpoint locations have been identified. Rather, officers will be in patrol cars roving throughout their communities.

As always, we provide this information as a reminder of the dangers of DUI and an encouragement to plan ahead to keep yourself and others safe. If you're going to take part in Cinco de Mayo celebrations, we encourage you to identify your designated driver in advance and have the phone numbers of cab companies programmed into your mobile device. Also, be sure to look after your friends and family and ensure that they don't get behind the wheel after drinking.

If you have questions about DUI laws, contact the Law Office of Nancy King at (916) 442-1200.

The Folsom Police Department announced that it will conduct a DUI checkpoint beginning at 7:00 PM on Friday, April 9, and ending at 3:00 AM on Saturday, April 10. The location was not disclosed in the department's press release.

Funding for the checkpoint comes from the National Highway Traffic Safety Administration and the California Office of Traffic Safety. The checkpoint will be staffed by Folsom Police Department officers, with assistance from Citizens Assisting Public Safety volunteers and a Community Service Officer.

As we always advise when providing information about sobriety checkpoints, take the steps necessary to keep yourself and others safe if you plan on consuming alcohol. Choose a designated driver before leaving your house or apartment, put taxi phone numbers into the address book of your mobile phone, or even hire a driver for the evening.

Finally, keep in mind that arrest for DUID (driving under the influence of drugs) is possible after use of legal medications if those substances impair your ability to safely operate a vehicle. Be aware of the effects that medications have on you and ask a family member or friend to drive for you if necessary.

If you have questions about this topic, or any other topic in our blog, call the Law Office of Nancy King at (916) 442-1200.

On St. Patrick's Day, Wednesday, March 17, the Sacramento Police Department DUI enforcement team will partner with the CHP and other law enforcement agencies to substantially increase patrols throughout the city. Anyone considering drinking alcohol on St. Patrick's Day should take these preventive measures:

• Pick your designated driver before you begin celebrating
• Put the local taxi company's number in your cell phone
• If you have an iPhone, load one of the many apps that will help you find a cab
• Hire a limo for the evening
• Go to a restaurant or bar within walking distance of your home
• Associate only with people who will look out for you

Do what it takes to keep yourself and others safe.

Our last post covered the similarities and differences between a DUI involving alcohol and a DUI involving drugs. Today's post explains the role of the Drug Recognition Expert (DRE) in DUID.

Typically, a DUID evaluation begins after a driver has been pulled over for erratic driving and the officer, after administering a breath alcohol test, determines that the driver has not ingested alcohol.

In DUID cases, law enforcement relies on two things: 1) blood or urine tests to determine if drugs are present in the person's system, and 2) observations of the person's physical condition and behavior. Because of the technical nature of this type of investigation and evidence, police and the CHP rely on Drug Recognition Experts, or DREs, officers who receive special training in recognition of the influence of drugs.

The DRE follows a 12-step protocol to assess the situation:

1. Breath alcohol test
2. Interview of the arresting officer
3. Preliminary examination and first pulse reading
4. Eye examination
5. Divided attention psychophysical tests similar to field sobriety tests
6. Vital signs and second pulse reading
7. Examination of eye pupils
8. Examination of muscle tone
9. Check for injection sites and third pulse reading
10. Subject's statements and other observations
11. Analysis and opinions of the evaluator
12. Toxicological examination from urine, blood, or saliva

If the officer making the traffic stop is trained as a DRE, he simply follows the 12-step protocol. If he isn't a DRE, he calls for one to come to the scene to conduct the investigation. The DRE's evaluation is then used by the district attorney's office in its attempt to gain a conviction.

If no DRE is available, the arresting officer takes detailed notes of what he observed. If the case goes to trial in that instance, the district attorney can have a DRE testify as an expert witness and give his or her interpretation of the arresting officer's notes. But without direct evaluation by a DRE, conviction of DUID becomes much more difficult.

All of the issues highlighted in the previous post regarding defense against DUID charges are pertinent to the DRE's evaluation. The rate at which drugs leave the system, impairment through use of medications, the role of fatigue and emotional distress, and inconsistencies in the application of the 12-step protocol by the DRE should all be evaluated by your attorney in devising a defense strategy.

Call Nancy King at 916-442-1200 if you have questions about DREs, DUID, or other topics discussed in this blog.

The section of the California Vehicle Code that governs driving under the influence of alcohol also sets the rules for driving under the influence of drugs, or DUID. But DUID cases differ from alcohol related cases in several important respects, each of which influences the defense that can be mounted against the charges.

When someone is cited for driving under the influence of alcohol, two criminal charges are filed: 23152 (a) and 23152 (b). Section (a) declares that, "It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage or drug, to drive a vehicle." Section (b) makes it illegal to drive with a blood alcohol level of 0.08 or greater.

Driving under the influence of drugs lacks the specific measure of intoxication laid out in section (b). Therefore, conviction of DUID rests solely on law enforcement's ability to demonstrate that a person's capacity to operate a vehicle safely was impaired by the presence of drugs in his or her system. In other words, all DUID cases rely solely on section (a) and its prohibition of driving under the influence of a drug.

It is important to note that DUID can arise from impairment by both legal and illegal drugs. Use of marijuana or methamphetamines can lead to arrest for DUID, but so can use of prescription and non-prescription painkillers, anti-depressants, allergy medications, antibiotics, or any other drug. Any chemical that diminishes a person's ability to safely operate a vehicle can be used as the basis for arrest and conviction for DUID.

Continue reading "Driving Under the Influence of Drugs (DUID)" »