Monthly Archives: June 2010

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Lawmakers aim to plug holes in DUI law during next session

Chris Klein facing jail time for DUI case
Chris Klein is facing a mandatory sentence of four days in jail if he’s convicted of his second DUI offense, the Los Angeles City Attorney’s office announced Monday.

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DUI Arrest Update
Impaired drivers are a very real danger to themselves and, of course, any motorist who is sharing the road at the same time. With this in mind, the Lee County Sheriff’s Office launched a multi-faceted campaign of education, awareness and enforcement to battle this threat to our community.

Read more on North Fort Myers Neighbor

Lawmakers aim to plug holes in DUI law during next session
Lawmakers, state officials and DUI activists plan to use the weaknesses in the state’s handling of drunken-driving cases unveiled by a Reno Gazette-Journal 10-month investigation to argue at the 2011 Legislative session for tougher laws and harsher punishments.

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Virginia DUI DWI Implied Consent Ceritificate Analysis Fairfax Richmond Beach Loudoun Prince William

Roseborough v. Commonwealth, 55 Va. App. 653 (Va. Ct. App. 2010)

Appellant smelled of alcohol, he swayed as he walked, his eyes were bloodshot and watery, and he spoke very loudly. He refused to perform any field sobriety tests at the scene. The officer arrested him for DWI based on appellant’s admissions and the officer’s observations at the scene. In a search pursuant to that arrest, Officer Weinstein discovered a remote key for the truck in appellant’s pocket. The ignition key was still in the ignition of the truck. Appellant objected to introduction of the certificate. He argued that, because the officer did not have statutory authority for his arrest under Code § 19.2-81 (both because the DWI, a misdemeanor offense in this case, did not occur in the officer’s presence and because the accident did not occur on a public highway), the implied consent statute did not apply to say that appellant was “deemed as a condition of such operation [of his car] to have consented to a blood test or breath test.” Therefore, he contended, the certificate was not admissible.

The Court reasoned that analysis of the case begins with the uncontested fact that Officer Weinstein never read the implied consent law to appellant and did not obtain appellant’s consent to blow into the Intoxilyzer by informing him of the implied consent law. Instead, appellant volunteered to take the test before Officer Weinstein had even decided if he could use the implied consent law to obtain a breath sample from appellant — and after Officer Weinstein had informed appellant of his Miranda rights. Appellant actually initiated the taking of the test and explicitly volunteered to take it before he could be informed of the implied consent statute. 7 In short, Officer Weinstein had not even attempted to obtain appellant’s consent before appellant voluntarily and expressly consented to take the test — in fact, he asked to take it. Where a driver asks to have a breath test taken, as occurred here, the implied consent statute on its face has no relevance.

The Court distinguished the case from Thomas v. Town of Marion, 226 Va. 251, 254, 308 S.E.2d 120, 122 (1983), and Durant v. City of Suffolk, 4 Va. App. 445, 448, 358 S.E.2d 732, 734, 4 Va. Law Rep. 121 (1987). Thomas and Durant hold that a suspect cannot legitimately consent to a breath test if (1) he is unlawfully or untimely arrested and if (2) the officer informs the suspect of the provisions of the implied consent law, and if (3) the suspect then consents to provide a breath sample under the mistaken belief that he could be penalized under the implied consent law for refusing to cooperate. Unlike the defendants in Durant and Thomas, appellant initiated the discussion here and, without being informed that he was presumed “to have consented to have samples” of his breath taken under Code § 18.2-268.2, appellant told the officer that he “wanted to blow” into the Intoxilyzer. Unlike the officers in Durant and Thomas, Officer Weinstein did not use the implied consent statute to prod appellant into taking the breath test. Therefore, the provisions of Code § 18.2-268.2 do not operate to exclude the certificate here.

In addition, appellant never made any objections based on Code § 18.2-268.9 requiring the Commonwealth to prove that the certificate of analysis met the requirements of that statute. Moreover, the wording of appellant’s question presented in this Court continues to frame the issue here in the same way it was treated by the parties and the trial court at the trial level. For all of these reasons, the provisions of Code § 18.2-268.9 do not affect our analysis here. Code § 18.2-269 allows a trial court to apply a rebuttable presumption that an accused was under the influence when a breath sample is obtained “in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12″ and when the breath test indicates that the accused had a BAC of .08 or more. Virginia Code § 18.2-269 also allows a presumption that the accused is not under the influence of intoxicants if the results indicate a BAC level of .05 or less. But Virginia Code § 18.2-269(A)(2) also acknowledges that, if a presumption does not apply, “such facts may be considered  with other competent evidence in determining the guilt or innocence of the accused.” Clearly, therefore, Code § 18.2-269 does not exclude a certificate of analysis simply because the rebuttable presumption does not apply at trial. The certificate here was not “irrelevant,” even if the presumption in Code § 18.2-269 did not apply, because it still presented information relevant to the factual question of whether appellant was intoxicated while driving (DWI).

These summaries are provided by the SRIS Law Group.  They represent the firm’s unofficial views of the Justices’ opinions.  The original opinions should be consulted for their authoritative content.

The SRIS Law Group Virginia DWI lawyers defend clients charged DWI driving ticket in Virginia.  The SRIS Law Group has offices in Fairfax, Richmond, Virginia Beach, Lynchburg, Loudoun County & Prince William County.

Lindsay Lohan Ordered to Speak About Drug Use

Bail increased for woman accused of battery
Despite a tearful plea to be released to care for her children, Dawn Oxley remained in Douglas County Jail on Friday charged with battering her mother and teenage daughter.

Read more on The Record-Courier

Sarasota and Manatee Judges Have Rulings Upheld On Breath Test Inadmissibility In DUI Cases Handled By Finebloom And …
A recent ruling by Florida’s Second District Court of Appeals concerning the Intoxilyzer 8000 breath test machine has upheld previous rulings in Sarasota and Manatee Counties that the results from these machines cannot be used as evidence until the manufacturer turns over the machine’s source code.

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Lindsay Lohan Ordered to Speak About Drug Use
Judge ordered Lohan to answer questions in a two-hour deposition Lauren Keating After claiming she is currently clean and sober, actress Lindsay Lohan will have some answering to do about her extreme partying in court.

Read more on TheCelebrityCafe.com

Actor Chris Klein Charged With 2 Counts Of DUI

Police aim to boost DUI arrests by 10 percent
Elk Grove police plan to boost their arrest rate of intoxicated drivers by 10 percent or arrest more than 400 suspects by next year. That goal is outlined in the $27 million police budget that the Elk Grove City Council approved earlier this month.

Read more on Elk Grove Citizen

Police Release Dashboard Video of Lions President’s DUI Arrest
Last Friday, Roscommon County police arrested Detroit Lions president Tom Lewand on suspicion of a DUI. Lewand has since apologized for the mistake and the team has already officially stated that it supports Lewand and that he will retain his current role with the Lions. Nevertheless, it’s yet another embarrassing episode by personnel for a franchise that’s trying to break the common association …

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Actor Chris Klein Charged With 2 Counts Of DUI
Actor Chris Klein was charged with two misdemeanor DUI counts stemming from an arrest this month in Sherman Oaks, authorities said. The “American Pie” star was arrested at 3:15 a.m., June 16, after his vehicle was seen swerving on the Ventura (101) Freeway, according to the California Highway Patrol.

Read more on CBS 2 Los Angeles

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