Written by: Okorie Okorocha, Bachelor’s Degree in Biology and Doctorate in Law DUI - DWI Breathalyzers are based on flawed junk science. DUI Breathalyzers have little scientific validity Alcohol Breath Tests (“ABT’s”) have been in use for over 50 years without a clear understanding by the general public of the scientifically flawed theories that they are based on. At the advent of the use of breathalyzers, or ABTs, the same flawed and invalid theories are still assumed to be true, despite ample evidence to the contrary by the world’s leading authorities such has Michael P. Hlastala, Ph.D., Kurt Dubowski, Ph.D., and A.W. Jones, Ph.D., among others. DUI Breathalyzers do not measure air that produces a valid blood alcohol result. Air that is measured by the breathalyzer for purposes of testing is the same air that comes directly from the air that exchanges with the Alveolar sacs in the lungs. This never happens because it is biologically impossible, but this is the cornerstone of the junk science behind the breathalyzer obtaining an accurate BAC. If the air in the alveoli that exchanges with the blood is not measured, the air being measured has nothing to do with the blood or the amount of alcohol in the blood. The Lung Volume problem The ABTs assume that this air is always measured by the breathalyzer after an individual expels 1.5 Liters of air. This is ridiculous for several reasons. For starters, lung volume varies by age, size and gender. Women who tend to be smaller have smaller lungs. A 20 year old male in perfect health who is 6 feet and four inches tall may have a lung volume of 6 Liters. A 60 year old female who is 5 feet and 2 inches tall may have a lung volume as low as 1.5 Liters. She may have even less volume if she has lung disease or other respiratory conditions that increase in frequency with the age of the population. DUI Breathalyzer Airway Sample Contamination A second flaw in the “scientific” theory behind breathalyzers is a complete and utter disregard for the fact that the air tested has to pass through all the bronchial tubes and the airways before reaching the mouth and being expelled. The bronchial tubes and airways have a mixture of water and mucus on their walls. Therefore, when one drinks alcohol and expels alcohol through their breath, alcohol is deposited on the walls of their airways. When you blow into the breathalyzer, the Law Enforcement Officer has you take a deep breath which forces all the alcohol on the walls of your bronchial tubes and airways out with your breath sample being tested. This adds alcohol to your sample giving you a higher and inaccurate BAC result which is drastic, and can be used to convict an innocent person. The Cigar Smoker Example Furthermore, the bronchial tubes and airways have blood vessels. So, just as when a cigar smoker feels the nicotine absorbed even though he does not inhale because of the blood vessels and gas exchange therewith, a person taking a breathalyzer expels air that exchanges with the blood in the bronchial tubes and airways and can alter the blood alcohol level and create evidence of guilt in an innocent person. Partition Ratio causes inaccuracies in Breathalyzer Results The partition ratio is the distribution of equal amounts of alcohol between blood and air, and is dependent upon temperature, and is known as the BAC divided by the “blood-breath” ratio between BAC and BrAC. This ratio has been standardized with an average of 2,100. However, a variability of up to 40% demonstrated valid concern where those ABT readings are close to the legal limit and can determine whether an arrest and conviction may be valid or not. The current scientific data available displays the flaws in the Junk Science of Breathalyzers Newer data over the past 30 years indicates that the previously accepted model for alcohol exchange has inconsistencies with the idea that that BrAC is equivalent to alveolar concentration.

February 20th, 2010

Written by: Okorie Okorocha, Bachelor’s Degree in Biology and Doctorate in Law

DUI - DWI Breathalyzers are based on flawed junk science.

DUI Breathalyzers have little scientific validity

Alcohol Breath Tests (“ABT’s”) have been in use for over 50 years without a clear understanding by the general public of the scientifically flawed theories that they are based on. At the advent of the use of breathalyzers, or ABTs, the same flawed and invalid theories are still assumed to be true, despite ample evidence to the contrary by the world’s leading authorities such has Michael P. Hlastala, Ph.D., Kurt Dubowski, Ph.D., and A.W. Jones, Ph.D., among others.

DUI Breathalyzers do not measure air that produces a valid blood alcohol result.

Air that is measured by the breathalyzer for purposes of testing is the same air that comes directly from the air that exchanges with the Alveolar sacs in the lungs. This never happens because it is biologically impossible, but this is the cornerstone of the junk science behind the breathalyzer obtaining an accurate BAC. If the air in the alveoli that exchanges with the blood is not measured, the air being measured has nothing to do with the blood or the amount of alcohol in the blood.

The Lung Volume problem

The ABTs assume that this air is always measured by the breathalyzer after an individual expels 1.5 Liters of air. This is ridiculous for several reasons. For starters, lung volume varies by age, size and gender. Women who tend to be smaller have smaller lungs. A 20 year old male in perfect health who is 6 feet and four inches tall may have a lung volume of 6 Liters. A 60 year old female who is 5 feet and 2 inches tall may have a lung volume as low as 1.5 Liters. She may have even less volume if she has lung disease or other respiratory conditions that increase in frequency with the age of the population.

DUI Breathalyzer Airway Sample Contamination

A second flaw in the “scientific” theory behind breathalyzers is a complete and utter disregard for the fact that the air tested has to pass through all the bronchial tubes and the airways before reaching the mouth and being expelled. The bronchial tubes and airways have a mixture of water and mucus on their walls. Therefore, when one drinks alcohol and expels alcohol through their breath, alcohol is deposited on the walls of their airways. When you blow into the breathalyzer, the Law Enforcement Officer has you take a deep breath which forces all the alcohol on the walls of your bronchial tubes and airways out with your breath sample being tested. This adds alcohol to your sample giving you a higher and inaccurate BAC result which is drastic, and can be used to convict an innocent person.

The Cigar Smoker Example

Furthermore, the bronchial tubes and airways have blood vessels. So, just as when a cigar smoker feels the nicotine absorbed even though he does not inhale because of the blood vessels and gas exchange therewith, a person taking a breathalyzer expels air that exchanges with the blood in the bronchial tubes and airways and can alter the blood alcohol level and create evidence of guilt in an innocent person.

Partition Ratio causes inaccuracies in Breathalyzer Results

The partition ratio is the distribution of equal amounts of alcohol between blood and air, and is dependent upon temperature, and is known as the BAC divided by the “blood-breath” ratio between BAC and BrAC. This ratio has been standardized with an average of 2,100. However, a variability of up to 40% demonstrated valid concern where those ABT readings are close to the legal limit and can determine whether an arrest and conviction may be valid or not.

The current scientific data available displays the flaws in the Junk Science of Breathalyzers

Newer data over the past 30 years indicates that the previously accepted model for alcohol exchange has inconsistencies with the idea that that BrAC is equivalent to alveolar concentration.

DUI Breathalyzers - DUI Breathalyzer Tests are Junk Science

February 18th, 2010

DUI - DWI Breathalyzer results and how to Attack DUI - DWI Results at Trial - DUI - DWI Breathalyzer

Okorie Okorocha
Written by: Okorie Okorocha Avvo Pro
Contributor Level 9
DUI - DWI Breathalyzers are based on flawed junk science.
1
DUI Breathalyzers have little scientific validity

Alcohol Breath Tests (“ABT’s”) have been in use for over 50 years without a clear understanding by the general public of the
scientifically flawed theories that they are based on. At the advent of the use of breathalyzers, or ABTs, the same flawed and invalid theories are still assumed to be true, despite ample evidence to the contrary by the world’s leading authorities such has Michael P. Hlastala, M.D., Kurt Dubowski, Ph.D., and A.W. Jones, Ph.D., among others.
2
DUI Breathalyzers do not measure air that produces a valid blood alcohol result. Air that is measured by the breathalyzer for purposes of testing is the same air that comes directly from the air that exchanges with the Alveolar sacs in the lungs. This never happens because it is biologically impossible, but this is the cornerstone of the junk science behind the breathalyzer obtaining an accurate BAC. If the air in the alveoli that exchanges with the blood is not measured, the air
being measured has nothing to do with the blood or the amount of alcohol in the blood.
3
The Lung Volume problem

The ABTs assume that this air is always measured by the breathalyzer after an individual expels 1.5 Liters of air. This is ridiculous for several reasons. For starters, lung volume varies by age, size and gender. Women who tend to be smaller have smaller lungs. A 20 year old male in perfect health who is 6 feet and four inches tall may have a lung volume of 6 Liters. A 60 year old female who is 5 feet and 2 inches tall may have a lung volume as low as 1.5 Liters. She may have even less volume if she has lung disease or other respiratory conditions that increase in frequency with the age of the population.
4
DUI Breathalyzer Airway Sample Contamination

A second flaw in the “scientific” theory behind breathalyzers is a
complete and utter disregard for the fact that the air tested has to pass through all the bronchial tubes and the airways before reaching the mouth and being expelled. The bronchial tubes and airways have a mixture of water and mucus on their walls. Therefore, when one drinks alcohol and expels alcohol through their breath, alcohol is deposited on the walls of their airways. When you blow into the breathalyzer, the Law Enforcement Officer has you take a deep breath which forces all the alcohol on the walls of your bronchial tubes and airways out
with your breath sample being tested. This adds alcohol to your sample giving you a higher and inaccurate BAC result which is drastic, and can be used to convict an innocent person.
5
The Cigar Smoker Example

Furthermore, the bronchial tubes and airways have blood vessels. So, just as when a cigar smoker feels the nicotine absorbed even though he does not inhale because of the blood vessels and gas exchange therewith, a person taking a breathalyzer expels air that exchanges with the blood in the bronchial tubes and airways and can alter the blood alcohol level and create evidence of guilt in an innocent person.
6
Partition Ratio causes inaccuracies in Breathalyzer Results

The partition ratio is the distribution of equal amounts of alcohol
between blood and air, and is dependent upon temperature, and is known as the BAC divided by the “blood-breath” ratio between BAC and BrAC. This ratio has been standardized with an average of 2,100. However, a variability of up to 40% demonstrated valid concern where those ABT readings are close to the legal limit and can determine whether an arrest and conviction may be valid or not.
7
The current scientific data available displays the flaws in the Junk Science of Breathalyzers

Newer data over the past 30 years indicates that the previously
accepted model for alcohol exchange has inconsistencies with the idea that that BrAC is equivalent to alveolar concentration.


Kind Regards,

Okorie “Dr. DUI” Okorocha, Attorney
Nationally Board Certified Criminal Trial Lawyer
*By the only National Board recognized by the State Bar of California
Named to SuperLawyers 2010
Named Top DUI Lawyer for 2009

Please let me know if I can answer a question, provide a sample
pleading or be of assistance in any way.

toll free: 800 285 1763
toll free Fax: 888 286 1840

Must See DUI Videos

January 21st, 2010

Cross Exam 1

http://www.youtube.com/watch?v=gh-ogDFjvS8

Cross Exam 2

http://www.youtube.com/watch?v=4W0Yq18ehIU

Inhalers and the Breath Test One

http://www.youtube.com/watch?v=ngoRBgjMM9s

Inhalers and the Breath Test Two

http://www.youtube.com/watch?v=fwtugMOB7ec

Soy Sauce Tests Positive for Alcohol on the Breathalyzer!!!!!!!!!!!!!!!!

http://www.youtube.com/watch?v=fzsuccEX90c


Kind Regards,

Okorie “Dr. DUI” Okorocha, Attorney
www.DrDUI90210.com
Nationally Board Certified Criminal Trial Lawyer
*By the only National Board recognized by the State Bar of California

California Legal Team
117 E. Colorado Blvd, Suite 465
Pasadena, Ca 91105
tel: 626 792 1301
fax: 626 340 4141

California Legal Team
5020 Campus Drive
Newport Beach, CA 92660
tel: 949 719 2649

toll free: 800 285 1763
toll free Fax: 888 286 1840

Always carry your license

January 16th, 2010

I have attached a transcript of how nasty things get with the police officer in Court.  The police always botch the procedures, so they are very careful with folks who know what they are doing or they will get embarrassed.

Too many people plead guilty to DUIs for no reason.  Never hire a lawyer to plead you guilty.  It is like hiring Jack Kevorkian, M.D. to kill you, just do it yourself and save your family some money. A lot of DUI lawyer are thieves, at least 90%

Here are the facts I gathered regarding our earlier discussion.

I have heard that they cannot detain you for purposes of ascertaining your ID, but I have no idea of the source.

Keep in mind, that I do not know if it is a crime, but I did check after my encounter and the DMV DOES SAY YOU MUST HAVE IT:

License in Your Possession

You must always have your driver license with you when you drive. Show it to any police officer who asks to see it. If you are in an accident, you must show it to the other driver(s) involved. (More information about accident involvement).

http://www.dmv.ca.gov/pubs/hdbk/misc_lic_info.htm#carrylicense

The police officer told me this as well.

My partner who is an expert at this stuff told me the exact same thing and said it was a $300 fine. I have no personal knowledge.


Kind Regards,

Okorie “Dr. DUI” Okorocha, Attorney
www.DrDUI90210.com
Nationally Board Certified Criminal Trial Lawyer
*By the only National Board recognized by the State Bar of California

“Don’t test me, I got luck, I work hard and God has blessed me” Dwight Myers

California Legal Team
117 E. Colorado Blvd, Suite 465
Pasadena, Ca 91105
tel: 626 792 1301
fax: 626 340 4141

California Legal Team
5020 Campus Drive
Newport Beach, CA 92660
tel: 949 719 2649

toll free: 800 285 1763
toll free Fax: 888 286 1840

Drager 7410 Plus Breath testing device used in Riverside, Santa Barbara and other Counties

January 16th, 2010

We cleared customs (meaning the machine and I).

I almost feel like I have put everything you can possibly get at a Drug store or food store in that thing and here are some ideas.

You can use the Soy Sauce packets from Jack-in-the-Box (Donald Drewery has spoken about soy sauce)

Some toothpastes, specifically Crest has scope in them and set off the machine.

The Asthma Medication HFA Pro Air inhaler contains alcohol and gives very high readings.

—–
Kind Regards,

Okorie Okorocha, Esq
Nationally Board Certified Criminal Trial Lawyer
*By the only National Criminal Trial Law Board recognized by the State Bar of California

Pasadena
Phone (626) 792-1301

Newport Beach
(949) 719-2649

Dr. DUI, Okorie Okorocha, who is Nationally Board Certified in Criminal Trial Law has also had great successes changing the law and policies in various Counties in animal rights law protecting pets in shelters.

January 9th, 2010

Dr. DUI, Okorie Okorocha, who is Nationally Board Certified in Criminal Trial Law has also had great successes changing the law and policies in various Counties in animal rights law protecting pets in shelters.

Read all about it:

www.HaydenAct.com

Or

http://en.wikipedia.org/wiki/Hayden_Act#cite_note-6

Okorie “Dr. DUI” Okorocha gets three murder counts dismissed.

January 5th, 2010

Okorie “Dr. DUI” Okorocha gets three murder counts dismissed.

The case was dismissed after Okorocha conducted the preliminary hearing.

Okorie “Dr. DUI” Okorocha gets 3 homicide counts dismissed today in Long Beach Court

January 5th, 2010

This is even though the client confessed

Santa Barbara DUI Breath Test Calibration

January 1st, 2010

<!– /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-parent:”"; margin:0in; margin-bottom:.0001pt; line-height:24.0pt; mso-pagination:widow-orphan; tab-stops:.5in; font-size:13.0pt; mso-bidi-font-size:10.0pt; font-family:”Times New Roman”; mso-fareast-font-family:”Times New Roman”;} p.MsoFootnoteText, li.MsoFootnoteText, div.MsoFootnoteText {mso-style-noshow:yes; margin:0in; margin-bottom:.0001pt; mso-pagination:widow-orphan; font-size:13.0pt; mso-bidi-font-size:10.0pt; font-family:”Times New Roman”; mso-fareast-font-family:”Times New Roman”; mso-no-proof:yes;} p.MsoFooter, li.MsoFooter, div.MsoFooter {margin:0in; margin-bottom:.0001pt; line-height:24.0pt; mso-pagination:widow-orphan; tab-stops:.5in center 3.0in right 6.0in; font-size:13.0pt; mso-bidi-font-size:10.0pt; font-family:”Times New Roman”; mso-fareast-font-family:”Times New Roman”;} span.MsoFootnoteReference {mso-style-noshow:yes; mso-ansi-font-size:10.0pt; color:windowtext; position:relative; top:-3.0pt; mso-text-raise:3.0pt; font-weight:bold; mso-bidi-font-weight:normal;} @page Section1 {size:8.5in 11.0in; margin:1.0in 1.25in 1.0in 1.25in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.Section1 {page:Section1;} –>

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CARYL JESSICA KEROLLIS,

Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.

A083415

(Marin County

Super. Ct. No. 173048)

CLIFFORD F. SCHWARBERG, JR.,

Plaintiff and Respondent,

v.

DEPARTMENT OF MOTOR VEHICLES,

Defendant and Appellant.

A084708

(Marin County

(Super. Ct. No. 174241)

SARA K. GIDDINS,

Plaintiff and Respondent, A084738

v.

DEPARTMENT OF MOTOR VEHICLES, (Marin County

(Super. Ct. No. 174338)

Defendant and Appellant.

____________________________________

In these consolidated appeals, we consider the question of whether the California State Department of Motor Vehicles (DMV) may suspend a person’s driving privilege pursuant to Vehicle Code section 13353.2 for a breath-alcohol result expressed as grams of alcohol per 210 liters of breath instead of blood-alcohol concentration. (Unless otherwise indicated, all statutory references hereafter are to the Vehicle Code.) The trial court ruled in each of these cases that section 13353.2 and section 1220.4 of title 17 of the California Code of Regulations (hereafter referred to as regulation 1220.4) require the breath-alcohol concentrations to be converted into an equivalent blood-alcohol concentration. Accordingly, it granted the petitions for writ of mandate filed by Caryl Jessica Kerollis, Clifford F. Schwarberg, Jr., and Sara K. Giddins and ordered the DMV to set aside the suspension of their driving privileges. We conclude that the trial court erred and reverse the judgments.

FACTUAL AND PROCEDURAL BACKGROUND

Kerollis

Caryl Jessica Kerollis was arrested for driving under the influence of alcohol in violation of section 23152 on July 21, 1997. She took a breath test which showed .09G/210L. Based on a violation of section 23152, the arresting police officer served Kerollis with a notice of order suspending her driving privilege as mandated by section 13353.2. The officer also issued Kerollis a citation for violation of section 23152. The notice of suspension, Kerollis’s confiscated driver’s license, the officer’s sworn report and arrest/investigation report, issued citation, and chemical test results were forwarded to DMV as mandated by section 23158.2.[1]

DMV held a formal administrative hearing upon Kerollis’s request. Kerollis objected to the introduction into evidence of the breath test result on the ground that these results, expressed as “.09 G/210L,” were not in compliance with title 17 of the California Code of Regulations. Kerollis presented expert testimony by Kenneth Mark regarding the breath test results. Mark testified that the breath test results did not comply with regulation 1220.4 because they gave only the breath-alcohol and not the blood-alcohol level. Regulation 1220.4 states at subdivision (a) that “all analytical results shall be expressed in terms of the alcohol concentration in blood, based on the number of grams of alcohol per 100 milliliters of blood.” Subdivision (f) then states: “A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood.” Marks admitted on cross-examination that if the breath tests had properly been converted to a blood-alcohol concentration, the results could be the same – i.e., .09 grams of alcohol per 210 liters of breath would be equivalent to .09 grams of alcohol per 100 milliliters of blood.

The DMV hearing officer overruled Kerollis’s objection to admission of the breath test results and sustained the suspension of her driving privilege. The hearing officer rejected the claim that the breath test result violated regulation 1220.4, ruling that subdivision (f) of regulation 1220.4 explains that the breath and blood alcohol ratios are equivalent.

Kerollis filed a petition for writ of mandamus in the superior court seeking to set aside the DMV’s suspension of her license. The gravamen of the petition was that because the breath test results had not been converted into blood-alcohol concentrations, they were not in compliance with subdivision (f) of regulation 1220.4, and the DMV was therefore precluded from relying on these results to suspend Kerollis’s driving privilege.

After hearing argument, the court granted the petition. Its written ruling stated in pertinent part: “Petitioner submitted evidence at the hearing establishing a violation of Title 17, section 1220.4, subdivision (a) in that the analytical result of petitioner’s breath test was not expressed in terms of blood alcohol concentration. . . . Certainly, while subdivision (f) could be said to define equivalence ratios for breath alcohol concentrations and blood alcohol concentrations, nothing in the language of subdivision (f) can be said to overrule the requirement clearly stated at the outset of section 1220.4, that all analytical results ‘shall be expressed in terms of [BAC].’ (Title 17, section 1220.4, subd. (a).) Vehicle Code, section 23152, subd., (b), which eliminates the conversion requirement in criminal cases, by its terms does not apply to civil administrative per se proceedings under Vehicle Code, section 13352.2 [sic]. (People v. Bransford (1994) 8 Cal.4th 885, 890; People v. Ireland (1995) 33 Cal.App.4th 680, 691.)” (Emphasis in original.)

Schwarberg

Clifford F. Schwarberg, Jr., was arrested on March 11, 1998, for driving under the influence of alcohol in violation of section 23152. He took a breath test that showed .08 G/210L. The arresting officer issued a misdemeanor citation for violating section 23152 and served Schwarberg with an administrative per se/suspension/revocation order of his driving privilege.

Upon Schwarberg’s request, the DMV held a formal administrative hearing. Shwarberg was represented by the same counsel as Kerollis and presented virtually the same evidence and argument that were made by Kerollis. The DMV hearing officer sustained the suspension of Schwarberg’s driving privilege.

Schwarberg filed a petition for writ of mandamus in the superior court seeking to set aside the DMV’s suspension of his license. Schwarberg’s case was argued together with Giddins’s case before the same judge who heard Kerollis’s case. The same arguments were presented, and the court rendered virtually the same ruling as in Kerollis’s case.

Giddins

Sara K. Giddins was arrested on December 13, 1998, for driving under the influence of alcohol in violation of section 23152. She took a breath test which showed .17 and .18 G/210L within a half-hour of her arrest. Thereafter she was served with an administrative per se suspension/revocation order, and her driver’s license was confiscated. Upon Giddins’s request, a formal administrative hearing was held by the DMV. Giddins was represented by the same counsel as Schwarberg and Kerollis, and the same arguments and evidence were presented, including expert testimony by Kenneth Mark. On advice of her attorney, Giddins refused to testify. The hearing officer sustained the suspension of Giddins’s driving privilege.

Giddins filed a petition for writ of mandamus in the superior court seeking to set aside the DMV’s suspension of her license. Argument on her case was combined with that of Schwarberg, and she was represented by the same attorney. The gravamen of Giddins’ argument was the same as that presented in the Kerollis and Schwarberg petitions. The same judge heard all three cases and rendered the same ruling in each.

ARGUMENT

Appellant DMV contends that the trial court’s ruling was erroneous. DMV argues that a person’s driving privilege may be suspended pursuant to section 13353.2 for a breath-alcohol result expressed as grams of alcohol per 210 liters of breath and that the regulations are invalid to the extent they say otherwise. Resolution of this issue raises the question of statutory interpretation.

We begin by reviewing basic principles of statutory interpretation. The fundamental goal of statutory interpretation is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. “In determining such intent, we first look to the words of the statute themselves, giving the language its usual, ordinary import. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. Where uncertainty exists, consideration should be given to the consequences that will flow from a particular interpretation. Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent.” (San Francisco Internat. Yachting etc. Group v. City and County of San Francisco (1992) 9 Cal.App.4th 672, 680.)

DMV argues that section 13353.2 must be construed in light of section 23152 since both statutes use the same language and refer generally to the same subject. Both provisions refer to driving a motor vehicle with “0.08 percent or more, by weight, of alcohol in his or her blood.” Accordingly, DMV maintains, it is appropriate to refer to section 23152 in interpreting section 13353.2.

Section 13353.2 provides in pertinent part:

“(a) The department shall immediately suspend the privilege of any person to operate a motor vehicle for any one of the following reasons:

(1) The person was driving a motor vehicle when the person had a 0.08 percent or more, by weight, of alcohol in his or her blood.”

DMV asserts that the provisions of section 13353.2 must be read in conjunction with section 23152, subdivision (b), which provides:

“It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

“For purposes of this article and Section 34501.16 [pertaining to commercial drivers], percent, by weight, of alcohol in a person’s blood is based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

“In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.”

Section 13353.2 was added to the statutes on July 1, 1990, and originally referred to a blood-alcohol concentration of .10 percent. (Stats. 1989, ch. 1460, §§ 7, 22, pp. 6507, 6520.) In 1990, however, the Legislature amended section 13353.2 to reduce the blood-alcohol concentration from 0.10 percent to 0.08 percent. This legislation was enacted as an urgency measure and became effective on July 26, 1990. (Stats. 1990, ch. 431, §§ 4, 23, pp. 1838, 1851.) The stated purpose was to conform to the changes that had been made in 1989 to section 23152, which had reduced the blood-alcohol concentration from 0.10 percent to 0.08 percent. (Legis. Counsel, Summary Digest of Statutes Enacted in 1990 (1989-1990 Reg. Sess.) ch. 431, p. 156; Stats. 1989, ch. 479, § 3, p. 1691.)

Section 23152 was amended in 1990 to add the reference to measuring alcohol in a person’s blood by grams of alcohol per 210 liters of breath. (Stats. 1990, ch. 708, § 1, 3289.) The breath-alcohol provision was added to set forth an alternative definition of unlawful driving and to eliminate the need for conversion of a breath quantity to a blood concentration of alcohol. (People v. Bransford (1994) 8 Cal.4th 885, 891.) Thus, a person who drives with 0.08 grams or more of alcohol per 210 liters of breath or with a blood-alcohol concentration of 0.08 percent of more may be arrested for and convicted of violating section 23152.

The criminal provisions of section 23152 are intertwined with the suspension of driving privilege provisions of section 13353.2. It is the violation of section 23152 that triggers the obligation of the DMV under section 13353.2 to suspend a person’s driving privilege. (§§ 13557, 13558, 23158.5; Pacheco, Admin Per Se for the Practitioner (1993) 24 Pacific L.J. 461, 465.) The relationship between the two statutes thus dictates that they be harmonized so as to promote their common purpose of combating drunk driving.

Our colleagues in Division Three considered the relationship between section 13353.2 and 23152 in Bell v. Department of Motor Vehicles (1992) 11 Cal.App.4th 304 (Bell) in determining whether the rebuttable presumption set forth in section 23152, subdivision (b) was applicable in administrative proceedings pursuant to section 13353.2. The trial court had reversed the DMV’s suspension order on the ground that there was insufficient evidence of Bell’s blood-alcohol concentration at the time of driving. The trial court had refused to apply the rebuttable presumption set forth in section 23152, subdivision (b), which provides in pertinent part: “ . . . In any prosecution under this subdivision, it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent of more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after the driving.” The trial court found that the phrase “in any prosecution under this subdivision” made the presumption, by its own terms, inapplicable to a DMV administrative hearing.

The Court of Appeal disagreed. It concluded that refusal to apply the presumption in administrative hearings would be contrary to the Legislature’s purpose and intent and thereby contravene the most fundamental principle of statutory construction. It has long been the rule in California, the court observed, that the literal language of enactments may be disregarded to avoid absurd results and to fulfil the intent of the Legislature. (Bell, supra, 11 Cal.App.4th at p. 311.) The administrative per se statutes were enacted to establish an expedited driver’s license suspension system that would provide a more effective deterrent than the criminal provisions which sometimes resulted in no action being taken against the driving privileges of drivers with high chemical results as a result of plea-bargaining and pretrial diversion programs. (Id. at p. 312.)

The Bell court concluded: “Nothing in this legislative history indicates that the Legislature, in enacting the administrative per se law, intended to impose different, more onerous, proof requirements for establishing a driver’s BAC [blood-alcohol concentration] in administrative hearings. On the contrary, we find that the express legislative intention to provide a swifter and more effective deterrent indicates just the opposite. Given the legislative history surrounding enactment of the presumption, the Legislature must have known that failure to apply the presumption to administrative hearings would create the same proof problem that it sought to eliminate in enacting a presumption, therefore making the administrative remedy less effective. Thus, notwithstanding the literal words of section 23152, subdivision (b), application of the presumption in administrative hearings is necessary to effectuate the Legislature’s express intent in enacting the administrative per se statutes.” (Bell, supra, 11 Cal.App.4th at p. 312, fn. omitted.)

The Bell court’s reasoning is equally applicable to the present situation. When the Legislature amended subdivision (b) of section 23152 in 1990 to insert the breath-alcohol provision, it did so with the intent of speeding up the criminal process of prosecuting drunk drivers. Criminal defendants who tested on breathalyzers had lengthened their criminal trials by presenting detailed, expert testimony regarding the many variables that could affect the actual ratio of an individual’s breath-alcohol concentration to blood-alcohol concentration. Under the predecessor statute, courts had allowed defendants to attack breath-test results on the basis of this variability. (People v. Bransford, supra, 8 Cal.4th at p. 889.) Bransford held that the amendments to section 23152, subdivision (b) eliminated the need for conversion of a breath quantity to a blood concentration of alcohol. (Id. at p. 891.) The court noted that this interpretation of the statute was consistent with the history of its enactment as well as with the overall legislative purpose of reducing the danger to the public caused by those who drink and drive by obviating the need for the prosecution to prove actual impairment. (Ibid.)

Like the court in Bell, supra, we find nothing in the legislative history that indicates “the Legislature, in enacting the administrative per se law, intended to impose different, more onerous proof, requirements for establishing a driver’s BAC [blood-alcohol concentration] in administrative hearings. On the contrary, we find that the express legislative intention to provide a swifter and more effective deterrent indicates just the opposite.” (11 Cal.App.4th at p. 312.) The Legislature must have known that the failure to apply the amended definition of driving under the influence in administrative hearings would create the same proof problem that it sought to eliminate by amending the statute, thereby making the administrative remedy more onerous and less effective. Thus, we conclude that notwithstanding the literal words of section 23152, subdivision (b) (“. . . For purposes of this article . . .”), the amended definition which permits expression of breath-alcohol results in terms of either grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath applies to administrative hearings.

Our interpretation of section 23152, subdivision (b) as applying to administrative per se proceedings nullifies the argument advanced by respondents that the DMV failed to carry its burden of proof in the administrative hearings. Their argument is premised on the claim that official standards were violated in the administration of their breath tests and that the burden of proof therefore shifted to the DMV, which could no longer rely on the presumption of reliability of the chemical tests. The official standards violated in this case, according to respondents, were the failure to convert the breath-alcohol results to a blood-alcohol concentration as required by regulation 1220.4. Their claim must fail, as it is based on a regulation which conflicts with the statutes we have just interpreted. When there is a conflict between a regulation and a statute or decisional law, it is well-settled that the law controls the regulation. (In re Johnny S. (1995) 40 Cal.App.4th 969, 978; Agricultural Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 419-420.)

DISPOSITION

The judgments are reversed, and the cases are remanded to the trial court with directions to deny the petitions and to reinstate the DMV’s suspension orders. The DMV shall recover its costs on appeal.


[1] Section 23158.2, subdivision (a) provides in pertinent part: “If a peace officer serves a notice of suspension pursuant to Section 23137, or arrests any person for a violation of Section . . . 23152, . . . the peace officer shall immediately forward to the department [DMV] a sworn report of all information relevant to the enforcement action, including information which adequately identifies the person, a statement of the officer’s grounds for belief that the person violated Section . . . 23152 . . ., a report of the results of any chemical tests which were conducted on the person . . ., a copy of any notice to appear under which the person was released from custody . . . .”

New Criminal Laws for California 2010

December 31st, 2009

New Laws for 2010

For criminal law practitioners. California Criminal–law Statutes, Rules of Court, and Official Forms

Compiled and edited, with comments, by

Garrick Byers Statute Decoder

Senior Defense Attorney, Fresno County Public Defenders Office Member, Legislative Committee Calif. Public Defenders Assoc. gbyers@co.fresno.ca.us

December 31, 2009

Table of Contents

HIGHLIGHTS AND LOWLIGHTS……………………………………………… 8

INCREASED VALUE–THRESHOLDS BEFORE CERTAIN THEFTS, OR RELATED OFFENSES, CAN BE CHARGED AS FELONIES … 10

Chart: Increase in Dollar Amounts to Be a Felony …………………………………… 11

SENTENCE REDUCTION CREDITS [TIME CREDITS] ……………… 13

County Jail……………………………………………………………………………………………… 13

State Prison…………………………………………………………………………………………….. 14

PAROLE: ……………………………………………………………………………. 15

Restriction on Return to Prison for Violations …………………………………………. 15

The New “Parole Reentry Accountability Program”………………………………… 17

2 New Laws for 2010

PROBATION……………………………………………………………………….. 19

Transfer of Supervision and the Case to County of Residence: Previously Optional, Now Often Mandatory……………………………………………………………… 19

The New California Community Corrections Performance Incentives ……… 20

DEFERRED ENTRY OF JUDGMENT REENTRY PROGRAM…….. 21

CRIMINAL PROCEDURE ……………………………………………………… 24

Release on Citation No Longer Permitted for Certain Misdemeanors; Booking At the Scene………………………………………………………………………………. 24

Search Warrants: Firearms…………………………………………………………………….. 25

General Time Waiver Revocation Can Now Only Be Done “in Open Court.” ……………………………………………………………………………………………………………….. 26

When the Defendant Places Mental State in Issue, a Prosecution Exam Can Now be Ordered ……………………………………………………………………………………… 27

Conditional Exams Now Permitted in Certain Domestic Violence Cases When There is Witness Dissuasion…………………………………………………………………….. 28

3 New Laws for 2010

LOCAL FEES IN CRIMINAL CASES……………………………………….. 28

CRIMES AND PUNISHMENTS………………………………………………. 30

Boating and Vessels: Clarified, and Some Increased, Penalties (Not Alcohol or Drug Related) …………………………………………………………………………………………. 30

“Composite Knuckles” Replaces Plastic Knuckles……………………………………. 30

Cow Tail Docking……………………………………………………………………………………. 31

Controlled Substances: Nitrous Oxide Sale………………………………………………. 31

Driving Under the Influence of Alcohol or Drugs: Ignition Interlock Devices, and Driver’s License Consequences…………………………………………………………. 32

Electronic and Digital–Age Crimes………………………………………………………….. 33 Prohibition of Publication of Certain Information About Persons in the Witness Protection Program. ………………………………………………………………………………. 33 Prohibition of Publication of Certain Personal Information of Public Officials. ……………………………………………………………………………………………………………. 34 Computer Hacking: Financial Institutions………… ……………………………………… 35

Gangs: Registrants Loitering On or Near School Grounds……………………….. 35

Hate Crimes: Nooses……………………………………………………………………………….. 36

4 New Laws for 2010

Human Trafficking: Abduction or Fraudulent Inducement For Prostitution; Minors ……………………………………………………………………………………………………. 36

Mortgage Fraud ……………………………………………………………………………………… 37

Sports Betting Pools: Partial Reduction in Penalty…………………………………… 37

Weapons on School Grounds : Added Prohibited Items……………………………. 38

FORFEITURE AND PROPERTY DISPOSITION……………………….. 38

Dog Fighting …………………………………………………………………………………………… 38

Counterfeit Goods: Donating to Charity………………………………………………….. 39

RESTITUTION …………………………………………………………………….. 39

Enhanced Collection from Prisoners ……………………………………………………….. 39

Tax Refund Withholding To Collect Restitution Fines……………………………… 40

Vandalism ………………………………………………………………………………………………. 40

COLLATERAL CONSEQUENCES: BACKGROUND CHECKS…… 41

5 New Laws for 2010

JUVENILE DELINQUENCY …………………………………………………… 41

Re–entry Services For Those “Aged–out” or Timed–out from DJJ…………… 41

A New Interstate Compact for juveniles…………………………………………………… 42

EVIDENCE CODE: ONLY TECHNICAL, OR VERY MINOR, CHANGES. …………………………………………………………………………. 43

Technical, Nonsubstantive, or Minor Changes to Sections 795, 1010, 1118, and 1294. ………………………………………………………………………………………………… 43

Lawyer–Client Privilege: These Changes Only Effect Decedent’s Estates…. 43

RULES OF COURT………………………………………………………………. 44

Juvenile Appellate Rules. ………………………………………………………………………… 44

Online Membership Account, Including Email, With State Bar: Required.. 45

JUDICIAL COUNCIL FORMS ………………………………………………… 46

6 New Laws for 2010

SUPREME COURT FILING RESTRICTIONS…………………………… 46

LOCAL ORDINANCES ON DRUG ABATEMENT PERMITTED…… 47

DAMAGE CLAIMS FOR ERRONEOUS CONVICTION………………. 47

7 New Laws for 2010

Highlights and Lowlights

For the first time in at least a decade, the new laws that one might consider detrimental to defendants are outweighed by those that one might consider beneficial. This is largely due to three major sets of amendments enacted at the 2009 Third Extraordinary Session of the Legislature, all in SBx3 18 (Ducheney), Stats. 2009, 3rd Ex. Sess., Ch. 28. These three new laws are effective Jan. 25, 2010. 1. The dollar amount or value for determining if certain thefts, or certain other property crimes, are, or can be, punishable as felonies or not (or if the person is liable for other increased punishment) is increased. For example, receiving stolen property formerly could be charged as a felony if the property’s value was over $400; now the value must be over $950. See “Increased Value–Thresholds Before Certain Thefts, or Related Offenses, Can Be Charged As Felonies” 2. Sentence reduction credits (“time credits”) are increased for most inmates of prisons and of county jails! See “Sentence Reduction Credits” 3. Low risk, less serious offenders can no longer be sent back to prison for parole violations. See “Parole” NOTE: These changes are not shown in the newly issued West’s California Penal and Evid ence Codes 2010 Desktop Edition. (I hope that West will issue a Supplementary Pamphlet.) These changes are shown on Westlaw, and in the newly issued Lexis–Nexis Standard California Codes Penal Code 2010 Edition.

A new Deferred Entry of Judgment Reentry Program (see the entry in that name) for “first time nonviolent drug offenders” can be establishment by the local court, but state funds cannot be sought. The legislature continued to enact few new crimes and punishments, because of the expense. Misdemeanor penalties for Internet publication of protected witness information expands Internet crime past crimes against children and theft–related offenses. Public officials’ contact information can also be protected. See “Electronic and Digital–Age Crimes.” 8 New Laws for 2010

The Legislature continues to increase the types of jobs for which criminal background checks are required. This time it’s custodians of records of agencies that receive DOJ criminal background checks. See: Collateral Consequences: Background Checks Search Warrants can now be issued for firearms of persons arrested for domestic violence involving threats or assaults, of persons detained for mental examinations, and of persons subject to certain restraining or protective orders. See: Search Warrants.

Avoid Late Filing: • Pre–trial motions must now be filed 10 court days. Response–time is also increased to 5 court days. Amended Calif. Rule of Court 4.111. See “Rules of Court.” • Supreme Court filings can no longer be done at any Court of Appeal.. The Los Angeles Clerk’s Office of the Supreme Court of California is closed.. All “petitions for review, writs, and legal briefs” must be filed the court’s San Francisco Office. See “Supreme Court Filing Restrictions”

Online Membership Account, Including Email, With State Bar: Required. New Rule of Court 9.7 is effective Feb. 1, 2010. See “Rules of Court.”

Abbreviations:

SB = Senate Bill, 2009 – 2010 regular session SBx3 = Senate Bill, 2009 3rd extraordinary session AB = Assembly Bill, 2009 – 2010 regular session Stats. 2009 = Statutes and Amendments to the Codes, 2009 Stats. 2009 3x = Stats. 2009, 3rd Extraordinary Session Ch = Chapter number (assigned by the Sec. of State)

All Statutes, Rules, and Forms are effective January 1, 2010, unless noted. The laws enacted or amended by SBx3 18 are operative January 25, 2010. Many of the criminal law bills that could not be included here are found in the Assembly Committee on Public Safety’s” 2009 Bill Summary.” 9 New Laws for 2010

Increased Value–Thresholds Before Certain Thefts, or Related Offenses, Can Be Charged As Felonies Enacted by SBx3 18 (Ducheney); Stats. 2009, 3x Ch. 28. Statutes affected: listed in the chart, below. Operative January 25, 2010. This value increase may be found by the courts to be retroactive for clients whose conviction is not yet final on appeal. See, e.g., People v. Nasalga (1996) 12 Cal.4th 784 (applying an increase in the loss–amount required for an enhancement retroactively to those whose convictions were not final when the increase became effective). See the note in Highlights and Lowlights, above. These changes are not shown in West’s Penal and Evidence Codes 2010 Desktop Edition. The Legislative Counsel’s Digest summarized this portion of the Bill as follows:

“Existing law establishes certain values for determining if theft or certain other property crimes are punishable as felonies or not. Existing law provides that for many of these crimes, the threshold is $400, while the thresholds for certain other crimes are $100, $200, and $1,000, as specified. “This bill would increase certain of those thresholds, for example, by increasing certain $400 thresholds to $950.”

There is no increase for most thefts, under Pen. C. § 487, subd. (a), such as theft of currency or jewelry. But for receiving stolen property (Pen. C. §496, increased from $400 to $950), non–sufficient funds checks (Pen. C. §476a, increased from $200 to 400), and for over 30 other types of theft and property crimes, the amounts are increased.

10 New Laws for 201 0

Chart: Increase in Dollar Amounts to Be a Felony See the NOTE in Highlights and Lowlights, above. These changes are not shown in West’s Penal and Evidence Codes 2010 Desktop Edition.

Code and Section Old $ Amount New $ Amount

Other Codes Bus.& Prof § 14491 Bus & Prof. § 17550.19 (amt for all persons) Bus & Prof. § 17550.19 (amt for any person) Bus & Prof § 21653 Financial § 5305 Military and Veterans § 421 Public Resources § 14591, subd. (b)

400 1,000 400 400 100 400 ..400

Pub. Res. § 41955 (misd; if below, can be infrc.) 400

Vehicle § 10851.5 Welf. & Inst. § 10980 Welf. & Inst § 15656 400 400 400

950 2,350 950 950 250 950 950 950 950 950 950

Penal Code § 154 § 155 § 337.4 (amount to also violate Sec. 487) 11

100 100 400 250 250 950

New Laws for 2010

§ 368, subds. (d) and (e) § 422.7 (amount needed for violation) § 476a § 484b § 484g § 484h 400 $400 200 1,000 400 400

§ 487, subd. (a) [general, e.g., theft of currency] 400 [unchanged]

§ 487, subds. (b)(1) & (b)(2) § 487, subd. (b)(3) § 487b § 487c § 487e and § 487f § 487h (SB 607; Stats. ’09 Ch. 24; Eff. 1/1/10) § 496 § 498 § 500 § 502, subd. (c)(3), generally, subd. (d) § 502, subd. (c)(3), by employee, subd. (h)(2) § 537 § 537e § 550 100 400 100 100 400 400 400 400 400 400 100 400 400 400

950 950 450 2,350 950 950 400 250 950 250 250 950 950 950 950 950 950 250 950 950 950

12 New Laws for 2010

§ 551 § 565 § 566 § 592 § 594.4 (value determines max. amt of fine) § 641.3 (amount. needed for Sec. to apply) § 4600 400 400 400 400 400 100 400 950 950 950 950 950 250 950

Sentence Reduction Credits [Time Credits]

See the NOTE in Highlights and Lowlights, above. These changes are not shown in West’s Penal and Evidence Codes 2010 Desktop Edition.

County Jail Enacted by SBx3 18; Stats. 2009, 3 Ex, Ch. 28 Statute effected: Pen. C. § 4019. Operative January 25, 2010. These reduction–increases may be found by the courts to be retroactive. See In re Kapperman (1974) 11 Cal.3d 542 (holding newly enacted Pen. C. § 2900.5, awarding presentence custody credits, retroactive to those incarcerated or on parole regardless of date of commitment). See the NOTE in Highlights and Lowlights, above. These changes are not shown in West’s Penal and Evidence Codes 2010 Desktop Edition. The time credits for most, but certainly not all, county jail inmates are increased. 13 New Laws for 2010

Formerly, for every four days served in county jail, most inmates were deemed to have served six. Now, for every two days served, most inmates are deemed to have served four. This is an increase, for every 4 days served, from 6 days deemed, up to 8 days. Excepted from this increase in reduction–credits are (1) those convict

Santa Barbara Holiday DUI Crackdown

December 31st, 2009

Holiday DUI Crackdown

Enforcement to Continue Through the Weekend, Authorities Say
Wednesday, December 30, 2009

Local authorities are sending out a holiday message that should be
loud and clear: If you drink, don’t drive.

Since authorities began cracking down on DUI arrests on December 18,
officers have arrested 118 people for allegedly driving under the
influence in Santa Barbara County, and officials warn that they will
be swarming the roads to keep people safe this New Year’s weekend.

http://www.independent.com/news/2009/dec/30/holiday-dui-crackdown/

http://www.cprslaw.com/Dr_DUI_Facts_Dr_DUI_on_DUI_Statistics.aspx


Kind Regards,

Okorie Okorocha, Attorney
Nationally Board Certified Criminal Trial Lawyer
*By the only National Board recognized by the State Bar of California

toll free: 800 285 1763
toll free Fax: 888 286 1840