October 11, 2014
Breath testing in Kern County for DUI goes back nearly a century. Some of the first breath tests required the suspect to blow into a balloon and the sample was tested back in the lab for BAC. The evolution of dui breath testing has a rich history from the drunk o meter machine to the so called breathalyzer apparatus to the modern day sophisticated machines that have the ability to print on the spot and do their own accuracy checks without the assistance of a human.
Within the last 5 years kern county implemented a machine called the Draeger device , specifically the Alcotest 7110. This machine is used roadside by the officer so their is no need to transport the arrested person back to the police station or jail. The breath machine has printing capabilities and also can be used as a preliminary alcohol screening test or PAS that is utilized for under 21 DUI and as a field sobriety test prior to arrest.
The breath machine are some of the latest technology but do have the usual failings such as difficulty distinguishing between alveolar air and mouth alcohol which can be a huge issue in a criminal prosecution.
The breath machines in Kern County are checked periodically by the Regional Crime Lab and have to undergo periodic checks by lab personnel that ensure the devices are in good working order. There are however problems that can arise that will affect the accuracy of the sample. If you have been arrested for DWI or drunk driving in Bakersfield or anywhere else in Kern County you should speak with a local attorney to examine the records and ascertain whether the sample in your case is reliable.
October 5, 2014
California allows the DA to charges murder or manslaughter against a river who kills someone while drunk, Kern County often elects to file murder charges rather then the lesser crime of manslaughter. In this recent appellate court case the justices found that the evidence supported a conviction for both but reversed the case due to instructional error. Here are the details of the opinion, courtesy of CCAP:
In 2006, the defendant drove to a bar with his friend and they drank nearly two pitchers of beer before leaving. On the drive home, the defendant had a blood alcohol level between 0.13 and 0.24 percent. He took a turn at 57 m.p.h. when the posted speed limit was 40 m.p.h. and crashed. His friend died. At his first trial, the prosecutor charged him with gross vehicular manslaughter and second degree murder. The jury convicted him of gross vehicular manslaughter but hung, 8-4, on the second degree murder charge. At his second trial for the second degree murder charge, the court refused to instruct the jury on gross vehicular manslaughter. It also refused to inform the jury that it was not facing an all-or-nothing situation because the defendant had already been convicted of gross vehicular manslaughter at his first trial. The second jury convicted the defendant of second degree murder. the defendant appealed from the two convictions.
On appeal the second degree murder conviction reversed because although the trial court properly refused to instruct the second jury on gross vehicular manslaughter because the first jury already decided his guilt on that offense, the trial court improperly refused to inform the second jury that the first jury convicted the defendant of gross vehicular manslaughter. This left the second jury with the false impression that the defendant would be left entirely unpunished for his actions if the jury did not convict him of murder. His request to inform the jury of his conviction in his first trial did not interfere with the prosecution’s broad discretion to decide what offenses to charge. The error was prejudicial because the case was close, as the first jury hung 8-4.
The Court Found There Was sufficient evidence of gross vehicular manslaughter. The elements of gross vehicular manslaughter are (1) driving a vehicle while intoxicated, (2) committing an unlawful act with gross negligence or committing an ordinarily lawful act which might produce death with gross negligence, and (3) as a proximate result of the unlawful or negligent act, another person was killed. The evidence supported a finding that the defendant drove drunk and that the accident caused his friend’s death. There was also sufficient evidence that the defendant committed Vehicle Code offenses with gross negligence. the defendant had a prior conviction for driving under the influence in 2003 and had attended a first-time offender program that addressed the dangers of drunk driving. A reasonable person in his position would have been aware of the risk involved with driving under the influence. According to Bruce Blythe, Bakersfield DUI Lawyer , most defendants who suffer a conviction for DUI in Kern County are warned of the dangers of drunk driving as part of the plea process.
The Court Also found there was sufficient evidence of implied malice (second degree) murder. The factors relevant for upholding a murder conviction based on drunk driving are (1) a blood alcohol level above .08, (2) a the defendant intent to drive after drinking, (3) knowledge of the hazards of driving while intoxicated, and (4) highly dangerous driving. Here, there was sufficient evidence admitted to prove each of those factors. the defendant BAC was between .13 and .24. His plan was to go have a few pitchers of beer with his friend and drive home as evidenced by his actions. He knew about the hazards of drunk driving because he attended a DUI first offender program. And, his driving was highly dangerous because he was speeding when he attempted to make a sharp turn. However, his second degree murder conviction was reversed on other grounds, as discussed above.
October 3, 2014
Getting arrested and convicted for a misdemeanor crime in California can have devastating effects on a person’s future ability to get a job, get financial aid, qualify for a loan and nowadays may even get in the way of meeting your soul mate. That may soon change with the signing of a new statute that allows misdemeanants the ability to get diversion on first time offenses and keep the conviction off their record.
The new law proposes that provides that a judge in the superior court of a county that has established a misdemeanor diversion program may at his or her discretion and over the objection of a prosecuting attorney, offer misdemeanor diversion to a defendant according to the misdemeanor diversion program. Under current law the DA gets to decide exclusively whether a defendant gets the benefit of a dismissal of a first time crime.
According to Bruce Blythe, a Bakersfield Criminal Defense Attorney with 20 years experience, the current state of the law prevents most deserving people the opportunity to keep a criminal conviction from becoming part of their permanent record. The new law would give the ultimate decision whether to grant clemency to an offender to the Judge, not the District Attorney charged with prosecuting the offender in the first place.
This new statute would balance out the power to see that a good person who made a mistake can regain his or her dignity by showing sincerity through community service or other suitable punishment and in the end get their case dismissed.