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Case Law Today Series - 2010
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Titles
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January 2010 Edition - Case Law Today |
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Penal Code § 422: Criminal Threats with William W. Bedsworth, Appellate Court Justice, State of California Penal Code §422 prohibits a threat to commit a crime, which will result in death or great bodily injury, if the threat is intended to be taken seriously and causes the person hearing it to reasonably fear for her or his safety. Justice Bedsworth discusses the elements of the crime, and explains what constitutes an attempted 422– also a felony. Case cited: People v. Jackson 09 DJDAR 15090 (October 23, 2009). (9:32)
What's a "Public Place" Under PC§ 12031? with Jeff Rubin, Deputy District Attorney, Alameda County, CA Compares the holdings in two different cases dealing with the issue of what constitutes a “public place” for purposes of the statute prohibiting carrying a loaded firearm in a public place. One case held a private driveway was a public place, while the other held a yard enclosed by a fence was not a public place. The rationale underlying each case is discussed. Cases/Statute cited: People v. Strider (2009) 177 Cal.App.4th 1393; People v. Yarbrough (2008) 169 Cal.App.4th 303; Pen. Code § 12031. (13:02)
Vehicle Searches in the New Millenium with Daniel McNerney, Superior Court Judge, Orange County, CA Police may no longer conduct a vehicle search incident to arrest an occupant of the vehicle after the arrestee has been secured in the police car. Cases cited: New York v. Belton (1981) 453 U.S. 454; Thornton v. U.S. (2004) 541 U.S. 615; U.S. V. Gonzales (2009) DAR 12599; Arizona v. Gant (2009) 129 S. Ct. 1710. (6:19).
Closed Containers: When Expectation of Privacy is Waived with Jeff Rubin, Deputy District Attorney, Alameda County, CA A suspect may waive his reasonable expectation of privacy in a closed container by making an unequivocal, contemporaneous, and voluntary disclosure that there is contraband in the container directly to a police officer. However, a suspect does not lose his reasonable expectation of privacy in a closed container just because he says things during a law enforcement- monitored jail call to another person indicating a closed container located somewhere outside the jail contains contraband. Case cited: United States v. Monghur (9th Cir. 2009) 576 F.3d 1008. (11:47)
Search Incident to Arrest: Arm's Length Rule with William W. Bedsworth, Appellate Court Justice, State of California In Arizona v. Gant, the United States Supreme Court pulled back from almost 30 years of Fourth Amendment jurisprudence and re-instated the interpretation of the law that limits a search incident to an arrest to the area a suspect can reach– that is the area “within arm’s reach”– at the time of the search. It held that police could not search a car after they had removed the suspect from it, overruling their 1981 opinion in New York v. Belton. In People v. Leal, a California Court applies this rule to search of a residence. Justice Bedsworth explains this new rule. Cases cited: Arizona v. Gant (2009) 129 S. Ct. 1710; New York v. Belton (1981) 453 U.S. 454; People v. Leal 09 Daily Journal 15507 (November 2, 1009). (6:46)
Bringing Other Agencies Along When Serving Warrants with Jeff Rubin, Deputy District Attorney, Alameda County, CA Officers from one police agency may bring along officers from another agency to help in the execution of a search warrant, even though the officers from both agencies hope and expect to find evidence of another crime for which probable cause is lacking, so long as the search is confined to what is permitted by the search warrant. Case cited: People v. Carrington (2009) 47 Cal.4th 145. (14:14)
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February 2010 Edition - Case Law Today |
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Miranda: Coerced Waivers with Daniel McNerney, Superior Court Judge, Orange County, CA Police are not required to begin questioning “immediately” after a Miranda advisement, and questioning at some period of time after the advisement will not render the interview coerced. Cases cited: Moran v. Burbine (1986) 475 U.S. 412; Missouri v. Seibert (2004) 542 U.S. 600; People v. Rios (2009) DAR 16280. (6:19)
"Protective Searches" During In-Home Arrests with Jeff Rubin, Deputy District Attorney, Alameda County, CA Under Maryland v. Bui, during the arrest of a suspect in his home, police may, without suspicion, do a limited search of the area immediately adjacent to the location of an arrest from which an attack could be launched. This type of search is distinct from the more expansive search, also authorized by Bui, that is commonly referred to as a “protective sweep.” In Lemus, officers were entitled to conduct a protective search of the arrestee’s living room where the arrestee was arrested just as he got halfway through a sliding glass door leading to the living room. Cases cited: Maryland v. Bui (1990) 494 U.S. 325; U.S. v. Lemus (9th Cir. 2009) 582 F.3d 958. (10:15)
Testimony by Dead Witnesses with William W. Bedsworth, Appellate Court Justice, State of California There are two ways a court can receive statements of dead witnesses: 1) a dying declaration (something a person says when he/she knows he/she is about to die is constituted trustworthy and allowed into evidence), and perhaps more important, 2) the “forfeiture by wrongdoing” exception to the hearsay rule, which provides that if a witness is unavailable because of wrongdoing by the defendant, his hearsay statements can be introduced. Justice Bedsworth explains how this very important rule resulted in a murder conviction in the Banos case. Case cited: (2009) 178 CA 4th 483. (7:48).
The Inevitable Discovery Doctrine and Inventory Searches with Jeff Rubin, Deputy District Attorney, Alameda County, CA In Arizona v. Gant, the Supreme Court held a search of the passenger compartment incident to an arrest of a recent occupant (i.e., a “Belton” search), is limited to situations where 1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or 2) it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle. However, evidence found during a search of a vehicle held improper under Gant may still be admissible if it can be shown the vehicle was going to be lawfully impounded and that the evidence would inevitably have been discovered during an inventory search. Cases cited: Arizona v. Gant (2009) 129 S.Ct. 1710; United States v. Ruckes (9th Cir. 2009) 586 F.3d 713. (9:14)
Search and Seizure: "Objective" Exigent Circumstances with Daniel McNerney, Superior Court Judge, Orange County, CA Police will have justification to enter a residence without a warrant if they have an “objectively” reasonable basis for believing that a person inside is in need of immediate aid. Case cited: Michigan v. Fisher (2009) 558 U.S. (5:58)
Carrying a Switchblade Unlawful Even at Home with Jeff Rubin, Deputy District Attorney, Alameda County, CA A person violates Penal Code section 653, which prohibits, among other things, the carrying of a switchblade on the person, even if the switchblade is not carried in a public place or place open to the public. Case/Statute cited: In re S.C. 2009 WL 4023737; Pen. Code §653k. (3:57)
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March 2010 Edition - Case Law Today |
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Interrogating Juvenile Suspects with William W. Bedsworth, Appellate Court Justice, State of California Police in Everett, WA interviewed a four-year-old girl, who said she had been molested by a 14-year-old boy when she was three. A detective went to the boy’s school and interviewed him for two hours, during which he repeatedly denied the crime. Eventually the boy confessed. The state court found the confession was coerced and that there was no probable cause for holding the boy for two hours of interrogation. It further found the girl to be incompetent to testify and dismissed the case. The boy and his parents sued. Justice Bedsworth explains the very sensitive area of interviewing child suspects and victims. Case cited: Stoot v. City of Everett (2009) DJDAR 13848. (7:33)
"John Doe" DNA Profile Arrest Warrants with Jeff Rubin, Deputy District Attorney, Alameda County, CA A “John Doe” arrest warrant that identifies the target of the warrant only by reference to a DNA profile meets the constitutional and statutory requirement that an arrest warrant be sufficiently particular in its description to identify the person to be arrested. The issuance of such a warrant will stop the statute of limitations on a crime from continuing to run. Case cited: People v. Robinson 2010 DJDAR 1214. (11:04)
Search and Seizure: Special Needs Detentions with Daniel McNerney, Superior Court Judge, Orange County, CA In order for a “Special Needs” detention to be lawful, the primary purpose cannot be for general criminal investigation. Cases cited: Indianapolis v. Edmond (2000) 531 U.S. 32; People v. Maikhio (2010) 180 CA4 1178. (5:49)
Specific Limits on Medical Marijuana Invalidated with Jeff Rubin, Deputy District Attorney, Alameda County, CA Under the Compassionate Use Act (Proposition 215), a person who has a doctor’s recommendation or approval to possess medical marijuana is limited to possessing an amount reasonably related to that person’s current medical needs. The limitation still applies. Subsequently passed legislation on medical marijuana is invalid, but only to the extent it limits the amount of marijuana that can be possessed to six mature or twelve immature plants and eight ounces of dried marijuana regardless of the person’s current medical needs. Case cited: People v. Kelly (2010) 47 Cal.4th 1008. (8:37)
Courtroom Decorum: Commemorative Buttons with William W. Bedsworth, Appellate Court Justice, State of California When Gregory Zielesch was tried for the cold-blooded murder of a highway patrolman, many spectators showed up the first day wearing buttons that depicted the slain patrolman, Andrew Stevens. Defense objected that the buttons could influence the jury. The court overruled the objection and Zielesch raised it again on appeal. Justice Bedsworth discusses what may and may not be worn in a courtroom and why Zielesch’s conviction was affirmed. People v. Zielesch (2009) DJDAR 16503 (11/23/09). (9:36)
School Campus Interviews with Molestation Victims with Jeff Rubin, Deputy District Attorney, Alameda County, CA The Ninth Circuit has held removal of a child from a school classroom and subsequent interview by a caseworker and/or police officer will be deemed a violation of the Fourth Amendment in the absence of parental consent, exigent circumstances, or a warrant or court order where such removal and interview is deemed a seizure. This video also discusses how officers may best respond to the court’s holding. Cases/Statutes cited: Greene v. Camreta (9th Cir. 2009) 588 F.3d 1011; Pen. Code § 11174.3; Welf. & Inst. Code §§ 300, 305. (17:49)
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April 2010 Edition - Case Law Today |
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Mobile Tracking Devices with William W. Bedsworth, Appellate Court Justice, State of California In this case, federal agents used a tracking device to keep tabs on a suspected marijuana grower. When they finally busted him, he complained that the use of such devices was illegal and that even if they were legal, attachment of such a device, while it was parked in his driveway, was illegal. Justice Bedsworth explains why both arguments failed and what the status of California law is with regard to such devices. Case cited: United States v. Pineda-Moreno (2010) DJDAR 474. (7:54)
Ambiguous and Conditional Invocations of Miranda Rights with Jeff Rubin, Deputy District Attorney, Alameda County, CA The rule that police may continue interrogating a suspect who ambiguously invokes his right to counsel applies equally to a suspect who ambiguously invokes his right to silence. Also, an invocation of the right to counsel will be deemed ambiguous if it contingent upon an event that has not occurred. Case cited: People v. Martinez (2010) 47 Cal.4th 911. (12:51)
Search and Seizure: In-Person Anonymous Tips with Daniel McNerney, Superior Court Judge, Orange County, CA Tips regarding possible criminal activity are generally more reliable if they are given in-person to law enforcement. Cases cited: Adams v. Williams (1972) 407 U.S. 143; Florida v. J.L. (2000) 529 U.S. 266; U.S. v. Marquez (2010) DAR 884. (6:42).
Temporary Deactivation of Lights/Siren During 2800.2 Pursuit with Jeff Rubin, Deputy District Attorney, Alameda County, CA Neither Vehicle Code section 2800.1 or 2800.2 requires the pursuing officer to keep his emergency lights and siren continuously activated during the entire course of the pursuit. A temporary deactivation during a brief period when the officer loses sight of the offender is permissible. Cases/Statutes cited: People v. Copass (2009) 180 Cal.App.4th 37; Veh. Code §§ 2800.1, 2800.2. (6:28)
Pitchess Motions: A "Plausible Scenario" with William W. Bedsworth, Appellate Court Justice, State of California In order to force a court to review an officer’s personnel file for possibly discoverable material (Pitchess motion) the defendant must provide a “plausible scenario” of the charged offense that would make the materials relevant. Describes Sanderson and explains why the court did not agree to review the officer’s personnel file. Officers should know their personnel files are not examined every time a defendant accuses them of lying. Case cited: People v. Sanderson (2010) DAR 2272 (February 11, 2010). (7:05)
Edwards Rule Subject to "Break in Custody" Exception with Jeff Rubin, Deputy District Attorney, Alameda County, CA The Edwards rule prohibits any law enforcement officer from attempting to interview a suspect about any crime outside the presence of counsel after the suspect has invoked his right to counsel during a custodial interrogation unless the suspect initiates the contact. It does not bar re-contacting the suspect for purpose of interrogation after the suspect has been released from custody for 14 days. Moreover, a suspect who is incarcerated as a result of having been convicted of a crime is not “in custody” for purposes of the Edwards rule. Cases cited: Maryland v. Shatzer 2010 DJDAR 2731; Edwards v. Arizona (1981) 451 U.S. 477; Arizona v. Roberson (1988) 486 U.S. 675; Minnick v. Mississippi (1990) 498 U.S. 146. (21:19)
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May 2010 Edition - Case Law Today |
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Traffic Stops: More on Temporary Tags with Daniel McNerney, Superior Court Judge, Orange County, CA Unless an officer sees an object on the rear window consistent with a temporary operating permit, he/she may initiate a traffic stop of a vehicle without plates. Cases cited: In re Raymond C.- (2008) 45 C4 303; People v. Saunders (2006) 38 C4 1129; People v. Hernandez (2008) 45 C4 295; People v. Dotson (2009) 179 CA4 1045. (8:27)
Unauthorized Police Agreements with Informants with Jeff Rubin, Deputy District Attorney, Alameda County, CA A “cooperation agreement” between the police and an informant under which the informant provides information in exchange for a promise from the police that charges will be dismissed is generally unenforceable where charges have already been filed. Case cited: People v. C.S.A (2010) 181 Cal.App.4th 773. (7:55)
Accident Photos of Victim with William W. Bedsworth, Appellate Court Justice, State of California In this case, the California Court of Appeal held that police officers can be civilly liable for what they do with accident photos. Justice Bedsworth discusses the ramifications of this very important case. Case cited: Catsouras v. California Highway Patrol (2010) 181 Cal App 4th 856. (8:11)
"Public Place" Under PC§ 594.1 Includes Public Schools with Jeff Rubin, Deputy District Attorney, Alameda County, CA A public school is a “public place” for purposes of the statute prohibiting possession of etching cream or aerosol spray paint containers, while in a public place, with the intent to deface public property. Case/Statute cited: In re Miguel H. (2010) 180 Cal.App.4th 1429; Pen. Code § 594.1(e)(1). (4:36)
Exigent Circumstances: Illegal Aliens with Daniel McNerney, Superior Court Judge, Orange County, CA Reliable information that a large number of illegal aliens are being held in a safe house provides exigent circumstances for a warrantless entry. Case cited: U.S. v. Bosque (2010) DAR 3045. (7:26)
Specific Language of Miranda Admonition Not Set in Stone with Jeff Rubin, Deputy District Attorney, Alameda County, CA No specific language is required when advising a suspect of the Miranda rights, but the language used must reasonably convey each of the rights, including that the suspect has a right to consult with a lawyer before being interrogated and to have a lawyer present during interrogation. Cases cited: Florida v. Powell (2010) 130 S.Ct. 1195; Miranda v. Arizona (1966) 384 U.S. 441. (4:36)
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June 2010 Edition - Case Law Today |
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Arson vs. Unlawfully Causing a Fire with William W. Bedsworth, Appellate Court Justice, State of California In this case, a juvenile court judge found a minor guilty of arson because be lit a cherry bomb, which went off and set a hillside on fire. The Court of Appeal revised, holding the minor was guilty only of a violation of Penal Code §452. Case cited: In re J.H. (2009) DJDAR 16977. (5:01)
When Use of Taser is Excessive Force with Jeff Rubin, Deputy District Attorney, Alameda County, CA Discusses some of the principles governing when use of a taser will be deemed to violate the Fourth Amendment’s prohibition on excessive force. Describes circumstances in which the court found use of a taser on a bizarrely acting nonviolent misdemeanant (who was standing 20-25 feet away from the officer at the time he was tased) was excessive where the misdemeanant was not standing still and had not physically nor verbally threatened the officer or any member of the public. Case cited: Bryan v. McPherson (9th Cir. 2009) 590 F.3d 767. (20:53)
Search and Seizure: More Anonymous Tips with Daniel McNerney, Superior Court Judge, Orange County, CA Reviews a series of cases discussing when officers may act upon an anonymous tip. Cases cited: People v. Jordan (2004) 121 CA4 544; People v. Dolly (2007) 40 C4 458; People v. Carter (2005) 36 C4 1114; U.S. v. Marquez (2009) 591 F3d 1272; Lowry v. Guiterrez (2005) 129 CA4 926; People v. Rogers (2005) 131 CA4 1560; U.S. v. Jennen (2010) DAR 2771. (7:48)
When Use of Taser is NOT Excessive Force with Jeff Rubin, Deputy District Attorney, Alameda County, CA Covers a case finding the officer’s use of a taser on a female was reasonable, where the officer was attempting to arrest her husband (a large and belligerent male suspected of having engaged in domestic violence) in close quarters, the female was standing in between the officer and her husband, and the female was interfering with the arrest (albeit unintentionally). Case cited: Mattos v. Agarano (9th Cir. 2010) 590 F.3d 1082. (19:00)
Use of Tasers with William W. Bedsworth, Appellate Court Justice, State of California In Brooks, police issued a speeding ticket to a pregnant woman. When she refused to sign the citation, they tried to arrest her, but she resisted. Eventually they tasered her– three times. After six years of litigation, the 9th Circuit Court of Appeals threw out the lawsuit brought against the police for using excessive force. Justice Bedsworth discusses why the court ruled in favor of the police, why it took six years, and what it means with regard to taser use. Case cited: Brooks v. City of Seattle (2010) DJDAR 4601 (March 29, 2010). (7:25)
Standardized Criteria Not Prerequisite to Decision to Tow with Jeff Rubin, Deputy District Attorney, Alameda County, CA Inventory searches may be found unconstitutional when the officer’s discretion as to how to conduct the inventory is not subject to standardized criteria. However, so long as the decision to impound or remove a vehicle is justified by a community caretaking function and is reasonable under the circumstances, it is not necessary that the decision to impound be subject to standardized criteria – albeit, the decision to impound is more likely to satisfy the Fourth Amendment if made pursuant to standardized criteria than if not so made. Case cited: People v. Shafrir 2010 WL 1189584. (10:25)
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July 2010 Edition - Case Law Today |
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Parole/Probation Searches: Motel Residence? with Daniel McNerney, Superior Court Judge, Orange County, CA Law enforcement must have probable cause that a parolee or probationer currently resides at a particular location in order to conduct a warrantless parole/probation search. Cases cited: Motley v. Parks (2005) 432 F3d 1072; U.S. v. Franklin (2010) DAR 6363. (7:02)
Officer Telling Jury of Suppressed Confession = Reversal with Jeff Rubin, Deputy District Attorney, Alameda County, CA Discusses a case where a detective, upset with having the suspect’s confession suppressed, intentionally brought out the fact the suspect had given a confession. The appellate court found that while an inadvertent slip of the tongue that reveals evidence of a suppressed confession might be cured by a judge’s instruction to disregard the testimony, the detective’s conduct in the instant case was incurably prejudicial and required reversal. Case cited: People v. Navarrete (2010) (2010) 181 Cal.App.4th 828. (7:15)
Firing Into Vehicle with William W. Bedsworth, Appellate Court Justice, State of California Here’s a typical gang violence scenario: defendants see a car they identify (wrongly as it turns out) as that of a rival gang member. The windows of the car are heavily tinted, so they can’t see in, but they drive by and fire off a volley of shots. When they are prosecuted for assault with a deadly weapon on all the car’s occupants, they complain that they should only face one charge– that because of the tinting they did not know anybody but the driver was in the car. Justice Bedsworth explains why they lose. Case cited: People v. Trujillo (2010) DJDAR 2265 (2/11/10). (5:05)
Unreasonably Prolonged "Seizure" of House is Unconstitutional with Jeff Rubin, Deputy District Attorney, Alameda County, CA The Fourth Amendment may be violated if the police “seize” a residence for too long while awaiting a warrant. Discusses the circumstances where a 26.5- hour delay between the initial seizure of the house and issuance of the search warrant was held to be unreasonable and a violation of the Fourth Amendment requiring suppression of evidence found inside the residence. Case cited: United States v. Cha (9th Cir. 2010) 597 F.3d 995. (12:09)
School Searches: With a Little Help from My Friends... the Police with Daniel McNerney, Superior Court Judge, Orange County, CA School officials may conduct a school search based on information provided by police, and with the presence and participation of police. Cases cited: New Jersey v. TLO (1985) 469 U.S. 325; In re K.S. (2010) 183 CA4 72. (7:00)
Maintaining Place for Drug Use Requires Use by Others with Jeff Rubin, Deputy District Attorney, Alameda County, CA Health and Safety Code section 11366 prohibits maintaining or opening a place for the purpose of continuously or repeatedly selling, giving away, or using any controlled substance. However, in order to convict the owner of a location under the theory that the place is being maintained for the continuous or repeated use of a controlled substance, persons other than the owner must be using the controlled substance. Case/statute cited: People v. Franco (2009) 180 Cal.App.4th 713; Health & Saf. Code § 11366. (2:08)
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August 2010 Edition - Case Law Today |
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Inventory/Impound Searches: Standardized Criteria with Daniel McNerney, Superior Court Judge, Orange County, CA Inventory/impound searches cannot be used as a pretext for criminal investigation and must be conducted pursuant to a “standardized criteria.” Cases cited: Colorado v. Bertine (1987) 479 U.S. 367; People v. Henry (2010) DAR 7683. (8:07)
Chatroom Talk Not Confidential Under PC§ 632 with Jeff Rubin, Deputy District Attorney, Alameda County, CA Online instant messaging and other communications conducted in Yahoo! chat rooms are not “confidential communications” for purposes of P.C. Section 632, which prohibits the intentional recording or eavesdropping upon a “confidential communication” without the consent of both parties – at least where users are warned such communications may not be private. Case/Statutes cited: People v. Nakai (2010) 183 Cal.App.4th 499; Pen. Code §§ 632 & 633.5. (10:41)
Search and Seizure: Government Workplace Privacy with Daniel McNerney, Superior Court Judge, Orange County, CA Although government employees (including peace officers) enjoy the same 4 th Amendment protection in the workplace as employees in the private sector, the “workplace realities” of government work will affect whether the expectation of privacy is reasonable. Cases cited: O’Connor v. Ortega (1987) 480 U.S. 709; Ontario v. Quon (2010) DAR 7565. (9:23)
When is Concealing Firearm in Trailer Unlawful? with Jeff Rubin, Deputy District Attorney, Alameda County, CA A trailer attached to a van was not a suspect’s “place of residence,” for purposes of the statutory exemption from the offenses of carrying a concealed firearm in a vehicle or a loaded firearm in a public place, even if the trailer was the suspect’s exclusive dwelling place, where the trailer and van were parked in a public park and were not being used, at that time, for purposes of habitation. Case/Statutes cited: Garber v.Superior Court (2010) 184 Cal.App.4th 724; Pen. Code §§ 12025, 12026, 12031. (10:14)
DUI: Methamphetamine with Daniel McNerney, Superior Court Judge, Orange County, CA Although a driver may be under the influence of methamphetamine, the people must also prove that such influence impairs his/her ability to drive safely. Cases cited: People v. Torres (2009) 173 CA4 977; People v. Benner (2010) DAR 8942. (7:28)
DUI Arrestee's Initial Refusal Governs Despite Later Consent with Jeff Rubin, Deputy District Attorney, Alameda County, CA A DUI suspect will be treated as having refused to take either a breath or blood test if he initially refuses to take a breath test and then submits but fails to complete the breath test, even if the suspect shortly thereafter submits to the taking of a blood test. Case/statutes cited: Garcia v. Superior Court (2010) 185 Cal.App.4th 73; Veh. Code §§ 13353, 13557. (11:24)
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