DUI Law - California Says Brain Injury is Defense to Refusal

Today's DAD is an 'oldie but a goodie'. In Hughey v. Department of Motor Vehicles (1991) 235 Cal.App.3d 752, 757–758, a motorcyclist involved in an accident was arrested for driving under the influence. He was uncooperative and refused medical care. Although no head injuries were observed by the arresting officer or ambulance or fire personnel, he was “ ‘in and out,’ meaning he went from responsive to the irrational, and ‘up and down,’ meaning he would go from the calm to the belligerent.” When read the chemical test admonition, the officer was not sure the motorcyclist understood it and the motorcyclist made a comment that made no sense to the officer. After his release from jail, he was hospitalized and treated for a skull fracture; his hospital records were introduced at the license revocation hearing. A neurologist testified the motorcyclist had suffered a serious head injury during the accident, which would account for his bizarre combative behavior and would have made it difficult to have understood the officer's admonition and the significance of his refusal to submit. The neurologist also opined it was unlikely that alcohol caused the behavior.

The Hughey court noted, a “self-induced condition rendering the driver incapable of understanding and refusing to submit to a test, particularly if the condition results from alcohol consumption, does not excuse failure to take a test.” (see cases cited therein.) However, it concluded the evidence supported the finding that the motorcyclist was rendered incapable of refusing to submit to a chemical test by reason of his head injury and that alcohol was not a cause his mental state following the accident.

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DUI Appeal - California Says that Pocket Bike is a Vehicle

In People v. Varela, --- Cal.Rptr.3d ----, 2011 WL 1126036 (Cal.App. 2 Dist.), 11 Cal. Daily Op. Serv. 3771, while riding a pocket bike, defendant Martin Varela evaded a police officer who was attempting to stop him. A two-wheeled device with a motor and a seat for a driver is called a “pocket bike.” On appeal the defendant claimed that the pocket bike was not a motor vehicle because, inter alia, it was not designed for roadway travel. Analyzing the issue, the appeals court wrote:
“A ‘vehicle’ is a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.”

Section 415 defines a “ ‘motor vehicle’ [a]s a vehicle that is self-propelled.” Under the broad definition of motor vehicle it is not required that the vehicle be legally self-propelled on a highway. (citation)

Section 473 defines a “ ‘pocket bike’ [a]s a two-wheeled motorized device that has a seat or saddle for the use of the rider, and that is not designed or manufactured for highway use.”

A pocket bike comes squarely within the definition of motor vehicle. To hold otherwise would require that we ignore the plain meaning of sections 415 and 670.

Varela argues that legislative history refers to a pocket bike as a “device” and not a vehicle. (Citing Sen. Transportation & Housing Com., Analysis of Assem. Bill No. 1051 (June 7, 2005); Sen. Rules Com., Analysis of Assem. Bill No. 1051 (June 30, 2005).) But we are compelled by statute to conclude that a pocket bike is a type of device that comes within the definition of a motor vehicle. There is nothing inconsistent about referring to a motor vehicle as a device.

Nor did the trial court err in instructing the jury that a pocket bike is a motor vehicle. Because a pocket bike falls squarely within the statutory definition of a motor vehicle, it is a motor vehicle as a matter of law."


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DUI Appeal - Nitrous Oxide Tank is Proof Beyond Reasonable Doubt

In re Eddie, Not Reported in Cal.Rptr.3d, 2011 WL 1196046 (Cal.App. 4 Dist.), involved an appeal of a juvenile court finding that Eddie had committed a DUI while under the influence of nitrous oxide. Eddie appealed the courts findings that (1) he inhaled nitrous oxide gas; (2) nitrous oxide gas is a drug within the meaning of Vehicle Code sections 23153, subdivision (a) and 312; and (3) he was under the influence of a drug at the time he drove the vehicle.
The record revealed that the defendant had purchased a tank from craigslist, with labels on the tank suggesting that it was filled with Nitrous Oxide. Using balloons, Eddie, Kevin, and two other passengers, Dylan H. and C., inhaled gas from the tank. Dylan testified that they inhaled the nitrous oxide gas because they were hoping “to get a little high.” Kevin testified it was “a first-time experience” for him and that he “didn't really get a high feeling.” (Eddie later told Huntington Beach Police Officer Richard Backstrom that he had not felt the effects of the nitrous oxide gas and was disappointed in the experience.)The contents of the tank itself were never tested, but the appeals court found that it was proved that the tank was filled with nitrous oxide merely because it was labeled as such.
Additionally, Eddie contended that there was insufficient evidence to prove that he was under the influence of nitrous while driving. the appeals court made short shrift of that argument as well:

Eddie's admitted inhalation of nitrous oxide gas shortly before his erratic and high speed driving constitutes substantial evidence he was under the influence of a drug within the meaning of section 23153, subdivision (a).
* * * *
"Eddie argues he did not feel a high from the gas he inhaled. Officer Backstrom testified, however, that “[m]ost people that are under the influence, whether it be alcohol or drugs, whatever the case is, they often times still believe that they are in control of themselves and often admit that they don't have symptoms.”

NOTE: This case falls well below the type of evidence that would generally be required in order to prove that a particular compound is "X". the argument that the label proves BEYOND A REASONABLE DOUBT that the tank contained what was purported to be on the label is fraught with danger, rendering this decision unreasonable from a scientific point of view.
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Sloppy lab work leads to Toxicology Chief resigning in Indiana

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Two weeks ago we discussed how lab errors in California, Colorado and Pennsylvania resulted in challenges to DUI convictions and the dismissal of a multitude of DUI cases. It looks like Indiana is joining the club. According to this article from IndyStar.com, the director of the Indiana State Department of Toxicology, Michael A. Wagner, has resigned amidst charges of inexcusable lab errors. Allegations include sloppy lab work, excessively long delays in processing specimens, and the failure to perform inspections as required by state law. In the article, Indianapolis defense attorney John L. Tompkins explained the basis for the allegations:

Tompkins, who teaches blood-testing issues to lawyers for their continuing education requirements, said sloppy work is not unusual from the state Department of Toxicology.

Within the past few months, he said, blood-testing reports have come back showing clotted blood being used -- a mistake -- and incomplete documentation of the testing machine's calibration.

Tompkins also contends that the department ignores a state law enacted in 2007...(which) requires the Department of Toxicology to conduct examinations of the people performing blood-alcohol detection tests and inspections of the equipment they use.

If the allegations are true, the resignation of Wagner is only the first step toward achieving justice for those who have been wrongfully convicted of DUI in Indiana. Simply put, the accusations of sloppy lab work are inexcusable. Where the life and liberty of a person accused of a crime is at stake, it is imperative that lab test results be performed carefully, accurately and in a timely manner. Visit Americas Top DUI and DWI Attorneys at www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

Inexcusable lab errors in DUI cases

Image by Horia Varlan via Flickr

Tests for blood alcohol content are not infallible and can be tainted by any number of factors, including human error and faulty equipment. It is for that reason that good DUI defense attorneys never assume that tests results are accurate. Case in point--in recent months, across the country, lab errors have resulted in the dismissal of DUI charges. For example, as reported at denverpost.com, 7 DUI cases were dismissed due to lab errors:

Colorado Springs authorities in December announced the discovery of errors and a review of results at the lab where the alcohol content in blood samples was higher than the true result...In all, the lab retested 7,892 blood alcohol cases dating back to 2006 and found a total of 206 errors. Of the nine affected cases, five defendants had served jail time.

In San Francisco, human error and tampering is alleged to have affected thousands of criminal cases. The lab test problems, which were initially thought to have affected only drug cases, may affect DUI cases as well, as explained in this ABC article:

The public defender's office says the shortcomings which the scandal exposed in the drug unit, may also pertain to DUI testing. They include sloppy work, lack of protocols and inadequate staffing..."One of the most critical pieces of evidence in a driving under the influence case is whether or not the person had alcohol in his system and how much," former San Francisco crime lab director Jim Norris said.

Elsewhere, in Pennsylvania, one county is taking matters into its own hands in order to save money. In Cumberland County, officials have decided to hire a phlebotomist rather than outsource blood alcohol testing. As noted at the Philadelphia DUI Blog, this new arrangement concerns local DUI attorneys:

"I worry about the chain of custody," said a Harrisburg Pa DUI lawyer, referring to the problems in administering the county's part-time blood lab. Indeed, many Pennsylvania lawyers feel that such blood tests, if done at the hands of the county, could pose problems relating to conflicts of interest and impartiality.

Blood alcohol testing is a critical area of concern and plays a key role in the evidentiary burden of the prosecutors. But if the evidence were left in the hands of the county prosecutors, isn't it natural that Pa DUI lawyers would have objection?

Prosecutors and law enforcement officers rely on lab test results to convict people of crimes, such as DUI, which can wrongfully deprive innocent citizens of their liberty if performed incorrectly. For that reason, accurate lab test results are of paramount concern.

The lab testing scandals in Colorado and California and the potential conflicts of interest raised by the newly proposed lab testing scheme in Pennsylvania are clear indications that we still have a long way to go. Innocent people continue to be wrongfully convicted of DUI every day, something that is inexcusable--and entirely preventable.

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