Posts Tagged ‘what you need to know about breathalyzers’

Lawsuit filed against Judge Bernie LaForteza by Dr. DUI

Wednesday, April 21st, 2010

Okorie OKOROCHA, Esq., SBN 226658

California Legal Team

117 E. Colorado Blvd., Suite 465

Pasadena, CA 91105

(626) 792-1301

Attorney for Plaintiff The Defendant

and Prospective Class Members

THE UNITED STATES DISRTICT COURT

CENTRAL DISTRICT OF CALIFORNIA

1.  Comes plaintiff The Defendant individually, and as class representative for those persons similarly situated as arrested and prosecuted for crimes under California law (“Defendant”), who files this civil rights complaint pursuant to Title 42 U.S.C. §1983 for violation of the excessive bail clause of U.S.Const.Amend. VIII,   and for imposing a more severe penalty for exercising the right to a jury, a due process violation under U.S. Const.Amend. XIV and the right to a jury trial under U.S. Const.Amend. VI.

2.  Defendant sues Defendant Bernie Laforteza (“Laforteza”) in his individual capacity only for declaratory relief only. Laforteza is an agent of California, and is sued vicariously under the doctrines of respondeat superior and ratification for prospective injunctive relief only.  This declaratory relief action is cognizant under Title 42 U.S.C.  §1983 pursuant to Wilkinson v. Dotson, 544 U.S. 74 (2005).

3.  This court has proper jurisdiction pursuant to Title 28 U.S.C. §1367(a), and proper venue pursuant to Title 28 U.S.C. §1391(a)(2); both as Laforteza was the presiding judge on Defendant’s case in its Superior Court In And For The County Of Los Angeles.

GENERAL ALLEGATIONS

4.  The instant case was a standard Driving Under the Influence case pursuant to Cal.Veh.Code §§ 23152 (a) and (b) (“DUI”). Defendant had no bad driving record, and was a completely cooperative suspect who was pulled over initially for not having a registration sticker.

5.  At the Antelope Valley/Lancaster Court, the standard punishment on a first time DUI offense for those who plead guilty is 3 days of County Jail.  The Defendant is given credit for time served and is not forced to go to jail but making up the days of jail by doing Community Labor through the California Transportation Department for up to three (3) days depending on credit.

6.  In the instant case, Defendant had used her inhaler which contains alcohol prior to administering the test.  Defendant testified that she did use the inhaler but that she could not recall exactly when she used the inhaler in relation to the breath tests that she took.  Defendant took both preliminary alcohol screening tests and had readings of 0.20 and 0.19 and evidentiary breath tests one hour later with readings of 0.13 and 0.12.  There were no blood tests.

7.  The Criminalist for California, Ed Barley (“Barley”) attempted to lie by stating that the inhaler could only increase Defendant’s blood alcohol reading by 0.01 based on a particular article.  Barley was later impeached with the same article he was lying based on and shown that the article indicated alcohol based inhalers cause an increase of 0.20 in the blood alcohol reading on breath machines.   Barley also could not explain the drastic difference in readings and testified that such a drop is only seen in alcohol detoxification.

8.  Prior to the trial, Defendant was offered a plea bargain of 3 days Caltrans labor, standard fines, alcohol and MADD classes  However, throughout the trial, Counsel for Defendant was consistently worried that the Laforteza would severely punish her for exercising her right to counsel and a trial as he was passively supportive of the Deputy District Attorney Donna Rappaport when she indicated that the People would seek the maximum if Defendant attempted to exercise her jury trial rights.   Counsel was so concerned that prior to the jury’s return, multiple briefs were filed on the subject of bail pending appeal and increased punishment for going to trial

9.  Defendant was convicted at a jury trial on March 18, 2010.  Despite Laforteza being informed of the law, he sentenced the Defendant to sixty (60) days in jail and gave no reason on the record.  When asked for bail, he set the “reasonable” bail at $150,000.  The bail schedule for the offense is $5,000 and Defendant was a young nursing student with close community ties.

10.  There is no doubt that the sentence was in retaliation for exercising the right to go to trial. Furthermore, counsel for Defendant filed these brief’s because the Antelope Valley/Lancaster Court consistently violates the U.S. and California Constitution in this manner and uses other unconstitutional methods such as remanding Defendants upon conviction and making them serve five (5) days before sentencing, the maximum allowed under the law, to make sure the Defendant gets jail time.

11.  Defendant sues as class representative for those similarly situation as persons arrested and prosecuted for crimes in Los Angeles County.  The actions brought by the case at bar are best resolved by class action status because they are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.  Further, there are predominant common questions of law or fact between all plaintiff’s; Defendant as class representative has claims or defenses typical of the class; and class counsel will adequately s represent the entire class equally as no monetary damages are sought.  Thus, all of the requirements of Fed.R.Civ.P. 23 are met for numerosity, commonality, typicality and adequacy of representation of the entire class.

CAUSES OF ACTION

1.

IMPOSING EXCESSIVE BAIL THAT SHOCKS THE CONSCIOUS

IN VIOLATION OF U.S.CONST.AMEND. VIII. EXCESSIVE BAIL CLAUSE (DECLARATORY RELIEF ONLY)

12.  Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-11, inclusive, as if alleged and incorporated herein.

13.  Defendant and others similarly situated have a constitution right under U.S.Const.Amend. VIII to not have an excessive bail amount imposed on her that shocks the conscious.

14.  The standard and customary bail schedule for the offense is $5,000. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a bail of $150,000 for a first time DUI conviction for violating Cal.Veh.Code §§ 23152 (a) and (b), both misdemeanors. This imposition of excessive bail worthy of a violent felony was such that it shocks the conscious and in violation of U.S.Const.Amend. VIII.

15.  Laforteza has a policy, pattern and practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing such excessive bail amount on those criminal defendants that come before them prosecuted in violation of U.S.Const.Amend. VIII.

16.  A declaration should issue establishing that Laforteza has and does impose  excessive fines upon all criminal defendants that come before him that shock the conscious in violation of U.S.Const.Amend. VIII.

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2.

IMPOSING A MORE SEVERE PENALTY IN SENTENCING UPON EXERCISING THE CONSTITUTIONAL RIGHT TO A JURY TRIAL

THAN WOULD BE RECEIVED UPON PLEADING GUILTY IN VIOLATION OF THE DUE PROCESS CLAUSE UNDER U.S.CONST.AMEND. XIV AND THE RIGHT TO A JURY TRIAL CLAUSE UNDER U.S.CONST.AMEND. VI.  (DECLARATORY RELIEF ONLY)

17.  Defendant realleges and incorporates all facts and allegations expressed in paragraphs no. 1-16, inclusive, as if alleged and incorporated herein.

18.  Defendant and others similarly situated have a constitution right under U.S.Const.Amend. XIV to the due process of law to not have a more severe punishment imposed upon them upon any conviction for exercising their constitutional right under U.S.Const.Amend VI to take their case to a jury trial, as opposed to pleading guilty and waiving the right to a jury trial.

19.  A plea offer was made by Laforteza before trial that was for of 3 days Caltrans labor, standard fines, alcohol and MADD classes.  No additional material facts were proffered at trial which would justify any increased penalty from the plea offer made to Defendant. However, upon Defendant’s conviction on March 18, 2010, Laforteza imposed a sentence of 60 days in jail, well above the plea bargain offered.

20.  Laforteza has a policy, pattern practice in his rulings and decisions made while a judge in the Los Angeles County Superior Court, criminal division, of imposing a more severe penalty upon defendants that come before them prosecuted, and who exercise their constitutional right to a jury trial than upon those who plead guilty and waive the right to a jury trial, in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.

21.  A declaration should issue establishing that Laforteza has and does impose a more severe penalty upon those defendants who exercise their constitutional right to a jury trial as opposed to leading guilty and waive their right to a jury trial in violation of the due process clause of U.S.Const.Amend. XIV and the jury trial clause of U.S.Const.Amend. VI.

PRAYER FOR RELIEF

22.  Wherefore Defendant and all plaintiffs pray for such relief as follows:

a)  A declaration establishing that Laforteza has and does impose excessive bail amounts that shock the conscious upon any criminal defendants that come before them prosecuted for alleged crimes in violation of U.S.Const.Amend. VIII;

b)  A declaration establishing that Laforteza has and does impose a more severe penalty upon those defendants coming before them and prosecuted for alleged crimes who exercise their constitutional right to a jury trial that they were offered to plead guilty and waive the right to a jury trial.

c)  For attorney’s fees pursuant to Title 42 U.S.C. §1988.

d)  For all costs of suit.

` e)  For all other such relief as the court deems proper and justified.

Dated this___day of March, 2010 CALIFORIA LEGAL TEAM

________________________

Okorie Okorocha

Attorney for Plaintiff The Defendant and                the Prospective Class Members

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LAPD DUI Arrest Policy and Procedures from DR. DUI Okorie Okorocha

Monday, April 19th, 2010

343. UNDER ‑ THE ‑ INFLUENCE DRIVERS.

343.10 DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE ARRESTS. An arrest for driving under the influence shall be made when:

*

An officer witnesses a person commit the elements of driving while under the influence; or,
*

The under‑the‑influence driver was lawfully detained by an officer of this or another law enforcement agency; or,
*

The under‑the‑influence driver was lawfully arrested or detained by a private person who witnessed the driving element of the offense.

An arrest may be made for 23152(a) VC per authority of 40300.5 VC when a traffic collision has occurred but the arresting officer did not witness driving, when:

*

The arresting officer has reasonable cause to believe that a person involved in the traffic collision was driving a vehicle while under the influence of intoxicating liquor, or the combined influence of intoxicating liquor and any drug; and,
*

The arrest is effected as a continuous uninterrupted portion of the investigation.

Note: The arrest shall be limited to the location of the traffic collision or the location of any timely follow‑up investigation.

The element of being under‑the‑influence shall be based on the objective symptoms observed by the arresting officer. Results of other examinations shall be corroborative evidence only.

343.20 SOBRIETY EXAMINATION. The physical phases of the sobriety examination shall be given when an under‑the‑influence driver is able and willing to perform them and, when practicable, shall be conducted at the scene of the incident in the presence of witnesses.

A sobriety examination, as per Form 05.02.05, shall be completed when an officer:

*

Arrests a person whom he/she witnesses commit the elements of driving while under the influence; or,
*

Arrests a driver suspected of being intoxicated who was lawfully arrested or detained by another peace officer or a private person (Manual Section 4/343.10); or,
*

Is investigating a suspect for driving‑under‑the‑influence; or,
*

Is investigating a traffic collision and an involved driver displays any objective symptoms of being under‑the‑influence, regardless of whether the driver is arrested.

When a suspected under‑the‑influence driver refuses to submit to a field sobriety test, the investigating officer shall, read the Field Sobriety Test Admonition to the driver.
343.25 DRIVING – UNDER – THE – INFLUENCE (DUI) DRUG ARREST PROCEDURES.

Arresting Officer’s Responsibility. When an arrest is made for driving under‑the‑influence of drugs or combination of drugs and alcohol, the arresting officer shall:

*

Admonish the arrestee regarding a chemical test as per the Chemical Test Admonition on the DUI Arrest Report, Form 05.02.05.
*

Administer a chemical test to the arrestee.

Note: Whenever possible, a breath test should be administered to determine alcohol intoxication.

*

If the breath test is obtained and the results are .08% or higher, book the arrestee for Section 23152(a) (DUI) V.C. When the results are below .08%, complete the following:
o

Read to the arrestee verbatim the Drug Admonition from the DUI Arrest Report.
o

Obtain a urine or blood sample from the arrestee.

Note: If urine is the only chemical examination administered, officers shall obtain the first void for possible detection of drugs, and the second void for the possible detection of alcohol. Both samples shall be marked accordingly and booked as evidence.

*

If the breath test is obtained and the results are .30% or higher, the arrestee shall be examined by medical personnel pursuant to Manual Section 4/648.17.
*

Request a Drug Recognition Expert (DRE) or, if none available, a Narcotics Expert.
*

If an on‑duty DRE or Narcotics Expert is not available within the concerned bureau, the arresting officer shall obtain an MT for the arrestee and request the examining physician to include an opinion regarding objective symptoms and possible drug ingestion.

Exception: If a traffic death or traffic felony arrest is involved and a DRE or Narcotics Expert is not available within the concerned bureau, the arresting officer shall contact Communications Division and request an on‑duty DRE or Narcotics Expert from anywhere in the City. If no on‑duty DRE or Narcotics Expert is available, the officer shall contact the Administrative Unit, Detective Support and Vice Division, and request that an off‑duty DRE be dispatched.

*

When applicable, include the Drug Influence Evaluation Form (completed by an expert) as a page of the arrest report.

Drug Recognition Expert (DRE)/Narcotics Expert’s Responsibility. A DRE or Narcotics Expert is responsible for evaluating and rendering an opinion of the drug influence of DUI Drug arrestees. As part of that examination, the expert shall:

*

Advise the arresting officer of any additional tests required.
*

Determine if an MT is needed.
*

Complete the Drug Influence Evaluation Form.
*

Enter a brief description of the findings and the examining officer’s name and serial number in the Remarks Section of the Booking Approval, Form 12.31.00.

Note: If during a drug evaluation, the expert determines that he/she is not qualified to render an opinion, the watch commander approving the booking shall determine if another expert should be called.
343.28 ADMINISTRATIVE PER SE ORDER OF SUSPENSION.

343.30 ARRESTING OFFICER’S RESPONSIBILITY. An officer making an arrest for driving-under-the-influence (DUI) shall complete a DUI arrest report in the usual manner and confiscate the California driver’s license of the arrestee when the arrestee:

*

Refuses to submit to and complete a chemical test; or

Note: The Chemical Test Admonition portion must be read to the arrestee in its entirety, even when the arrestee refuses to submit to or complete a chemical test.

*

Takes a breath test which shows a blood alcohol concentration (BAC) level of .08 percent or more; or,
*

Takes a urine or blood test and the officer believes that subsequent test results will show that the driver is at or above a blood alcohol concentration of .08 percent.

Note: Out-of-state/foreign licenses are not included under California law and cannot be confiscated.

Upon completion of the DUI arrest report and confiscation of the arrestee’s California driver’s license, the arresting officer shall complete:

*

A Department of Motor Vehicles (DMV) Officer’s Statement, Form DS367, and write the arrestee’s booking number in the upper right corner; and,
*

A DMV Administrative Per Se Order Of Suspension/Revocation Temporary License Endorsement, Form DS360.

Upon approval of the DUI arrest report and Administrative Per Se documentation, officers shall:

*

Attach page two of the DMV Form DS360 to the DUI arrest report;
*

Issue page three of the DMV Form DS360 to the arrestee; and,
*

Mail the original Form DS367; page one of the Form DS360; the arrestee’s original California Driver License; and Intoxicator EC/IR Operator Checklist, Form 05.20.07, to the DMV location which corresponds with the geographic bureau of arrest.

Note: The law requires that all reports and forms be received by DMV within five working days of the date of arrest.

Page two of the DMV Form DS360, issued to the arrestee, will serve as a temporary driver’s license for 45 days from the date of arrest for an arrestee with a valid California Driver License in his or her possession. Once the arrestee’s driver’s license has been confiscated, the arrestee will have 10 days to request a DMV hearing. Failure by the arrestee to request a hearing will result in an automatic suspension of the arrestee’s California Driver License.

Exception: The arresting officer shall check the “No Temporary License Issued” box on the DMV Form DS360, and complete the explanation why no temporary license was issued, if:

*

The arrestee has an out-of-state/foreign driver license; or,
*

The arrestee has not been issued a valid California Driver License; or,
*

The arrestee’s California Driver License is suspended, revoked, or not in possession.

Packaging Blood or Urine Samples. If an arrestee chooses a blood or urine test, the arresting officer shall follow procedures described in Manual Sections 4/343.40 or 4/343.42. Additionally, the arresting officer shall complete the top half of the DMV Form, DS367A, and mail all three copies of the form to Scientific Investigation Division.

Supervisor’s Responsibility. Supervisors approving DUI arrest reports shall ensure that arresting officers have complied with Administrative Per Se procedures (23158.5 VC), when applicable.

343.33 INDEPENDENT TEST BY QUALIFIED PERSON. When qualified persons appear at the place of confinement by requests of the prisoner (Manual Sections 4/658.12 and 4/658.17) or other person, for the purpose of obtaining a breath, blood, or urine sample, they shall be permitted to do so upon consent of the prisoner.

*

Only a duly licensed doctor, laboratory technologist, bioanalyst, or registered nurse shall be permitted to withdraw a sample of the arrestee’s blood. This limitation shall not apply to the taking of breath or urine specimens;
*

The doctor must be a physician or surgeon (M.D. or osteopath) licensed to practice in the State of California. If there is a question as to the identification of the doctor, Detective Support and Vice Division shall be called to see if the doctor is listed in the Directory of the State Board of Osteopathic Examiners;
*

The laboratory technologists or bio‑analysts must be licensed to practice in the State of California. If there is a question as to their identification, Detective Support and Vice Division shall be called to see if they are listed in the Department of Public Health directory for licensed laboratory technologists and bioanalysts; and,
*

The registered nurse must be licensed to practice in the State of California and must perform the blood extraction under the supervision or at the immediate direction, of a doctor.

A Follow‑Up Report, Form 03.14.00, shall be used, by the officer having custody of the prisoner, to record:

*

The time the telephone call was made by or for the prisoner;
*

The time the person arrived at the place of confinement and requested to see the prisoner;
*

The person’s name, address, and telephone number, including business office address and telephone number;
*

The time the sample was taken;
*

The amount of blood taken as stated by the person;
*

The names and serial numbers of the officers witnessing the telephone call and the taking of the breath, blood, or urine sample;
*

The name of the doctor employing or supervising the registered nurse; and,
*

Any other appropriate information.

343.36 CHEMICAL TEST ADMONITIONS. Prior to administering a chemical test to a driving‑under‑the‑influence arrestee, the Chemical Test Admonition (23157 VC) section of the Driving‑Under‑ The‑Influence Arrest Report, Form 05.02.05, shall be read to the arrestee. The name and serial number of the admonishing officer shall be entered in the space provided in this section.

Note: The Chemical Test Admonition (23157VC) (Spanish) contained in the Los Angeles Police Department Citation Guide, Form 16.65.00, shall be read to Spanish speaking driving‑under‑the‑influence arrestees, by an officer fluent in, and capable of, testifying in Spanish.

After a breath test, if the arrestee is suspected of driving under the influence of alcohol, the Additional Chemical Test Admonition (23157.5 VC) section of the Driving‑Under‑The‑Influence Arrest Report shall be read to the arrestee. The name and serial number of the admonishing officer shall be entered in the space provided in this section. If drug use is suspected, the Drug Admonition of the Driving‑Under‑The‑Influence Arrest Report shall be read to the arrestee instead of the Additional Chemical Test Admonition. The name and serial number of the admonishing officer shall be entered in the space provided in this section.
343.38 BREATH TEST.

Use of Equipment. Breath‑testing equipment is located at Metropolitan Jail Section (Parker Center), Valley Headquarters Building, 77th Street Jail Section, and all geographic Areas except Central, Newton Street, Hollenbeck, and Rampart Areas. Operation of the breath‑testing equipment shall be restricted to personnel who have been trained in its use. Arresting officers not trained in the use of the breath‑testing equipment shall ensure that the examination is administered by an officer trained in its use.

An Intoximeter EC/IR Operator Check List, Form 05.20.07, shall be completed each time the Intoximeter EC/IR is set up for a test and for each subject to whom a test is administered.

Note: Breath‑testing equipment may be used as an investigative aid in driving‑under‑ the‑influence arrests involving narcotics, non‑narcotic drugs, or dangerous drugs, or for other purposes at the discretion of the concerned watch commander.

Watch commanders shall ensure that breath‑testing equipment receives timely calibration by qualified personnel.

Administering Test. Prior to administering the test, the testing officer shall observe the subject for a 15‑minute period, during which the subject shall not have eaten, drunk, smoked, regurgitated, or vomited.

Note: If the subject regurgitates, vomits, eats, drinks, or smokes between samplings, the pre-testing observation shall be repeated.

At least two breath samples shall be collected. (No waiting period is required between samples.) If the readings of the two samples vary more than .02 percentage points, additional samples shall be collected until the results of any two samples are within .02 percentage points. If five samples have been collected and the test is not complete (two samples, within .02 percentage points), the officer shall direct the subject to submit to either a blood or urine test. Failure to complete a test shall be deemed a “refusal.”

Note: Arrestees who obtain a EC/IR reading of .30 percent or higher shall be examined by medical personnel pursuant to Manual Section 4/648.17

Recording Results. The EC/IR test tape shall be separated from the machine only when:

*

The test is completed (two samples, within .02 percentage points); or,
*

Five samples have been collected and the test is not completed.

The date/time stamp shall be applied on the front of the test tape with each sample, and the time of each sampling shall be recorded.

Note: The date/time stamp and the required entries shall not cover any portion of the test results.

The EC/IR test tape shall be stapled to the EC/IR Check List on the space provided. The staple shall be positioned in a manner that will not interfere with reading the test results. When the test tape is longer than the Check List, the tape shall be folded in a manner that will not interfere with reading the test results.

The Intoximeter EC/IR Operator Check List shall be completed by the administering officer and:

*

Attached to the Arrest Report; or,
*

Submitted with the officer’s DFAR and a DUI Arrest Report, Form 05.02.05, when no arrest report is completed.

343.40 BLOOD TEST.

Criteria for Requesting. A blood sample may be requested in the following situations:

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The arrestee indicates a willingness to submit to a blood test incidental to the arrest; or,
*

The arrestee is in custody for a felony and the level of intoxication would be an essential element in the alleged violation; or,
*

The arrestee is unconscious or is so impaired and is unable to consent to a chemical test. When such a condition exists, the following steps shall be taken in order to determine if the arrestee is a hemophiliac or a heart patient possibly using anticoagulant medication:
o

Check for medical information on the arrestee’s person such as a “Medic Alert” bracelet or necklace, or any other item indicative of the arrestee’s medical background;
o

If a relative or a friend of the arrestee is present who can provide information about the arrestee’s medical condition, record the name, the relationship to the arrestee, and the statements of that person in the arrest report; and,
o

Inform the attending physician of all information in the officer’s possession which may have a bearing on the arrestee’s physical condition.

Requesting Forced Blood Sample Withdrawal. A forced blood sample may be obtained from an arrestee only when all of the following conditions have been met:

*

The arrestee is in custody for a felony traffic offense where the injury occurred to a person other than the arrestee; and,
*

Intoxication is an essential element of the alleged violation; and,
*

The arrestee refuses to voluntarily submit to any of the available chemical tests; and,
*

Prior approval from a traffic supervisor has been obtained; and,
*

A traffic or patrol supervisor is present at the medical facility (e.g., jail dispensary, contract hospital, etc.) to witness the withdrawal of blood from the suspect.

Note: The name and serial number of the approving supervisor and the supervisor present during the forced blood withdrawal, if different from the approving supervisor, shall be written in the arrest report.

Exception: An arrestee whose medical condition prohibits a blood sample from being taken shall not be forced to submit to a blood test.

Traffic Division Supervisor’s Responsibility. Upon being advised of a request for a forced blood withdrawal, the concerned traffic division supervisor shall determine if the criteria for forced blood withdrawal is met. The approving supervisor, if readily available, should be the supervisor present during the procedure.

The supervisor who is present at the scene of a forced blood withdrawal where the use of force becomes necessary shall ensure that the use-of-force investigation is conducted by a non-involved supervisor.

Requesting Withdrawal. Whenever a blood sample is to be obtained from an arrestee, the arresting officer shall direct a Request for Withdrawal of Blood, Form 04.35.00, to any of the following hospital personnel:

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Physician.
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Registered nurse.
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Licensed clinical laboratory technologist.
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Licensed clinical bio‑analyst.

Physician or Hospital Employee Refusal. When a physician or hospital employee authorized by Vehicle Code Section 23158 VC refuses to withdraw a blood sample, the officers having custody of the arrestee shall request a supervisor to respond to their location. Upon arrival, the responding supervisor shall:

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Become familiarized with the situation including a determination that the arrest and officer’s actions conformed with Department policy;
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Verify the refusal by the hospital employee to withdraw blood; and,
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Attempt to contact an administrator of the hospital who may advise the refusing employee as to responsibilities according to the contract provisions of the hospital, to the City.

When the employee still refuses to withdraw a blood sample, the supervisor shall then request the arrestee to submit to one of the other two remaining chemical tests. When the arrestee refuses the other tests, the supervisor shall advise the officers to complete the appropriate arrest report, including a notation regarding the absence of a chemical test.

Note: If a hospital employee refuses to withdraw a blood sample and the arrestee declines the remaining tests, the arrestee may be transported to a Jail Division Dispensary to obtain the blood sample.

After the arrestee is booked and all appropriate reports are completed, the concerned supervisor and officers shall each complete an Employee’s Report, Form 15.07.00, recording all pertinent information regarding the refusal to withdraw blood. The completed Employee’s Reports shall be forwarded through channels to Detective Support and Vice Division-Attention Medical Evaluation Unit.

Obtaining and Packaging. The withdrawal of all blood samples shall be witnessed by the requesting officer. Officers obtaining blood samples for alcohol or drug analysis shall, in addition to following the procedures outlined on the Analyzed Evidence To Be Refrigerated Envelope, Form 12.51.01, place the defendant’s booking number above the officer’s serial number when completing the Sealed Evidence Label. If there is no arrestee, the DR number shall be placed in the space above the booking officer’s serial number. When there is more than one suspect and a DR number is used, both the DR number and the last name of the suspect shall be used.

Officers obtaining whole blood samples from hospital employees for other than alcohol or drug analysis shall:

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Tilt the vial slowly and gently for approximately twenty seconds to ensure the preservative in the vial mixes with the blood;
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Complete the label on the vial with the suspect’s name, the DR number, and the booking officer’s initials;
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Check the “Blood Grouping” box on the Analyzed Evidence To Be Refrigerated Envelope, and complete all other applicable reports;
*

Place the vial in the Analyzed Evidence Envelope and seal the envelope with a Sealed Evidence Label bearing the date and DR number and the officer’s payroll signature and serial number signed in ink; and,
*

Affix the Biohazard Label to the upper left corner of the front of the Analyzed Evidence To Be Refrigerated Envelope.

Supervisor Approving. The supervisor approving the booking of the sample shall inspect the sample vial or container label to ensure that the required identifying information is included.

Booking. Whole blood samples shall be booked in the SID courier refrigerated temporary storage locker most convenient for the booking employee. The SID courier shall be responsible for transporting items to be analyzed to SID.
343.42 URINE TEST.

Location Obtained. A urine sample shall be obtained from a male arrestee at the booking location, and from a female at:

*

Female Jail Unit, Valley Section, when arrested in West Los Angeles, Pacific, or the Valley Areas; and,
*

The Area of arrest, when arrested in the metropolitan area.

Administering Test. An officer or detention officer of the same sex as the arrestee shall:

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Escort the arrestee to an appropriate restroom facility;
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Instruct the arrestee that he/she must empty his/her bladder;
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Remain present while the arrestee empties his/her bladder;
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Wait twenty minutes, or as soon as possible thereafter, before attempting to collect a urine sample;
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Provide the arrestee with a pretreated urine sample container;
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Ensure that the container is not rinsed prior to sample collection;
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Remain present while the arrestee provides a urine sample; and,
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Ensure that the label identifying the chemist responsible for preparation of the container is not removed.

Note: A protective glove shall be worn when handling a urine sample.

The Driving‑Under‑the‑Influence Arrest Report (Continuation), Form 05.02.05, shall indicate:

*

The time the bladder of the arrestee was first emptied,
*

The time the urine sample was collected, and,
*

The name of the employee who administered the urine test.

Note: When an arresting officer becomes aware that an arrestee has emptied his/her bladder after coming into the custody of the officer, the twenty‑minute waiting period shall begin at the time the bladder was first emptied. The time and circumstances of the emptying shall be recorded on the Driving‑Under‑the‑Influence Arrest Report (Continuation), Form 05.02.05.

Booking Sample. The officer booking a urine sample shall:

*

Ensure that the lid is placed tightly on the container;
*

Place a completed Sealed‑Evidence Label on the side of the container, and place the defendant’s booking number above the officer’s serial number when completing the Sealed‑Evidence Label. If there is no arrestee, the DR number shall be placed in the space above the booking officer’s serial number. When there is more than one suspect and a DR number is used, both the DR number and the last name of the suspect shall be used;
*

Complete the Analyzed Evidence To Be Refrigerated Envelope, Form 12.51.01, and check the appropriate box, “Alcohol Analysis” or “Drug Analysis;”
*

Place the container in the Analyzed Evidence Envelope;
*

Seal the flap of the envelope with a completed Sealed Evidence Label; and,
*

Affix the Biohazard Label to the upper left corner of the front of the Analyzed Evidence Envelope.

Alcohol and/or opiate urine samples shall be booked in the SID courier refrigerated temporary storage locker most convenient for the booking employee. The SID courier shall be responsible for transporting items to be analyzed to SID.

Supervisor Approving. The supervisor approving the booking of the sample shall inspect the sample vial or container label to ensure that the required identifying information is included.

343.57 REFUSAL TO SUBMIT TO OR COMPLETE CHEMICAL TEST – NOTIFICATION TO DMV. When a person who has been arrested for operating a motor vehicle while under the influence of intoxicating liquor and/or drugs refuses to submit to or complete a chemical test, the arresting officer shall mark the left margin of the related Driving‑Under‑The‑Influence Arrest Report, “Copy to Bureau Traffic Division Auditor.”

343.60 DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE ARREST-OFFICER REPORTING. When an arrest is made for any offense committed while driving a vehicle under the influence of alcohol and/or drugs, one officer shall normally complete the report and be prepared to testify regarding all phases of the arrest. That officer’s name shall be placed in the upper portion of the “Reporting Officer’s” box on page 1 of the Arrest Report and in the appropriate boxes of Form 05.02.05.

343.65 MISDEMEANOR TRAFFIC COLLISION RELATED DRIVING ‑ UNDER ‑ THE ‑ INFLUENCE BOOKINGS. When an arrestee involved in a traffic collision is booked for driving under the influence (23152(a) VC) the officer responsible for completing the arrest and traffic collision reports shall cause the arrest report and a copy of the traffic collision report to be submitted together at the location of booking for processing and distribution.

Exception: When the arrestee is booked into the Los Angeles County‑USC Medical Center jail ward or Los Angeles County Jail, the reports shall be submitted to the approving supervisor at the Communications Division Telephonic Report Counter, Parker Center.

Note: Records unit personnel shall ensure that one copy of the Traffic Collision Report is forwarded, with the copies of the DUI arrest report, to the appropriate custodial detention officer. The original reports and subsequent copies shall be processed and distributed according to current procedures.

343.70 DRIVING – UNDER – THE – INFLUENCE BOOKINGS. A teletype request shall be sent to DMV concerning each arrestee booked for 23152(a) VC. This request shall be teletyped by divisional record clerks immediately upon receipt of the Booking and Identification Record, Form 05.01.00, from the location of the arrestee’s detention. Requests may be sent using either the driver’s license number or the full name of the arrestee.

When using the driver’s license number, the teletype shall be sent in the following form:

*

ID.
*

(Information code, driver’s license number.)

When no driver’s license number is available, the teletype shall contain: (Manual Section 4/155.15)

*

STATUS AND RECORD.
*

Arrestee’s full name.
*

Arrestee’s address.
*

Arrestee’s birthdate (if unknown, give age).

Teletype requests shall originate from the division at which the arrest reports are completed for distribution. The employee shall use the appropriate teletype code to ensure that the docket number and the court of prior conviction, if applicable, appear on the reply from DMV. The employee making the inquiry shall attach the return teletype information to the court copy of the arrest report and forward them to the detention officer having custody of the arrestee.
344. TRAFFIC CASES INVOLVING PHYSICIANS.

344.50 ARREST OF PHYSICIAN ENROUTE TO TREAT EMERGENCY CASE. When a physician is taken into custody while enroute to treat an emergency case, the arresting officer shall immediately cause the patient to be notified. If this is not possible, the person who summoned the physician shall be notified.

A physician traveling in response to an emergency shall be exempt from the provisions of Vehicle Code Section 22351 (Speed Law Violations) and 22352 (Prima Facie Speed Limits), if the vehicle so used by the physician displays an insignia approved by the Department of Motor Vehicles indicating that the vehicle is owned by a licensed physician (21058 VC).

Note: The caduceus, symbol of the American Medical Association, is the approved insignia.
346. TRAFFIC CASES INVOLVING JUVENILES.

346.10 CITING PROCEDURE – TRAFFIC NOTICE TO APPEAR (CITATION). When a juvenile is issued a Traffic Notice to Appear, Form 04.50.00 for a moving or non‑moving violation, the juvenile shall be advised that a parent or guardian’s presence is required when at Juvenile Traffic Court in answer to the citation.

346.20 REFUSAL TO SIGN CITATION – JUVENILES. When a juvenile refuses to sign a citation, the juvenile shall be processed according to Manual Section 4/334.40.

346.40 MISDEMEANOR TRAFFIC VIOLATION – JUVENILE ARRESTED. When a juvenile is booked for a misdemeanor Vehicle or Municipal Code (traffic-related) violation, the arresting officer shall:

*

Complete a Traffic Notice to Appear in the normal manner and have the juvenile sign the citation.
*

Cite the juvenile to the morning or afternoon session (Manual Section 4/320.45) of the Juvenile Traffic Court on the appropriate citing date.
*

Give the juvenile the defendant’s copy.

Note: If the juvenile is to be released to a parent or guardian, the defendant’s copy of the citation should be given to the parent or guardian at the time of release.

*

Complete an Arrest Report, Form 05.02.00, and include the citation number and the notation that the court copy of the citation is attached to the investigating officer’s copy of the arrest report.
*

Attach the court copy of the citation to the arrest report.
*

When the juvenile is to be released to a parent or guardian, provide the adult with a copy of the Juvenile, Notice to Appear, Form 09.03.00.

Exception: Juveniles arrested for violation of Section 23152 VC shall be processed in the same manner as a non‑traffic misdemeanor arrest. A Traffic Notice to Appear shall not be issued for driving under the influence.

The investigating officer shall:

*

When the juvenile is not detained, forward one copy of the arrest report and the court copy of the citation to Traffic Court Liaison, Traffic Coordination Section.
*

When continued detention is deemed necessary, process the detained petition request, court copy of the citation, and related reports in the same manner as a detained petition request for any other charge.

346.45 JUVENILE OFFENSES INVOLVING ALCOHOL. Officers citing a juvenile for a violation of 23140(a) VC shall:

*

Document probable cause for administering the Intoximeter EC/IR Test in the narrative section of a Traffic Notice to Appear or on a Continuation of Notice to Appear, if necessary;
*

Write the corresponding citation number in the box entitled “DR NO.” in the upper right corner of the completed Intoximeter EC/IR Operator Check List, Form 05.20.07;
*

Attach the completed Form 05.20.07 to the Traffic Notice to Appear “court copy” (green), and forward it to the appropriate Juvenile Traffic Court; and,
*

Release the juvenile to a parent or guardian.

Note: Section 23140(a) VC does not require a Field Sobriety Test (FST); however, should an officer administer an FST, the results of the FST shall be documented on a Driving-Under-the-Influence Arrest Report (Continuation), Form 05.02.05. The completed Form 05.02.05 shall include the corresponding citation number in the upper right corner in the box entitled “DR” and be attached to the Traffic Notice to Appear “court copy” (green) and forwarded to the appropriate Juvenile Traffic Court. Enforcement of Section 23140(a) VC does not preclude the enforcement of 23152(a) VC, Driving-Under-the-Influence of Alcohol or Drugs.

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The government lies about Breathalyzers

Sunday, April 11th, 2010

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Crowe & Dunlevy, PC v. Stidham, 609 F. Supp. 2d 1211 – Dist. Court, ND Oklahoma

Thursday, April 1st, 2010

With regard to the textual discussion of judicial immunity, the sentence immediately preceding footnote 6 indicates that plaintiffs are generally able to sue judicial officers for declaratory relief. Id. at 766 (noting “[t]he only type of relief available to a plaintiff who sues a judge is declaratory relief“). This sentence continues to state that “not every plaintiff is entitled to this remedy,” and footnote 6, which is placed at the end of this sentence, provides additional explanation regarding the identity of those plaintiffs who are not “entitled to this remedy.” The Tenth Circuit is therefore indicating that there are a subset of plaintiffs who are not entitled to the relief afforded in Pulliam, and that subset is discussed in more detail within footnote 6. Nowhere does the Tenth Circuit state that all plaintiffs are prohibited from seeking the relief permitted in Pulliam. Further, the discussion included in footnote 6 clearly indicates that this subset of plaintiffs is comprised of those suing under § 1983. Id. n. 6 (discussing FCIA’s amendment to § 1983). The footnote’s case citations follow suit, as all concern instances where the plaintiff’s claim was tied to § 1983. Id. (citing Roth v. King, 449 F.3d 1272, 1286 (D.C.Cir.2006) (holding judges of Superior Court of District of Columbia were immune from § 1983 suit for injunctive relief) (noting “42 U.S.C. § 1983, as amended in 1996 by the [FCIA], explicitly immunizes judicial officers against suits for injunctive relief“) and Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir.2000) (finding district court properly dismissed plaintiffs’ Bivens action against defendant judges pursuant to FCIA amendment to § 1983) (noting that § 1983 law is incorporated into Bivens actions)).

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DUI Blogs that are Networked

Saturday, March 13th, 2010

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DR. DUI Trademark. California’s premier DUI Attorney

Saturday, March 13th, 2010

 

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Here goes number 5

Thursday, March 11th, 2010

I am in the 5th trial of the year so far (that was fast). This one is in Lancaster.

Kind Regards,

Okorie Okorocha, Attorney (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry
Pasadena – Newport Beach – Santa Barbara – San Diego
toll free: 800 285 1763
toll free Fax: 888 286 1840

San Diego DUI Lawyers — http://www.hslblaw.com

Santa Barbara DUI Attorneys – http://www.bhglaw.com

Newport Beach Attorneys –  http://www.cprslaw.com/

 Newport Beach DUI Specialists — http://www.calegalteam.com

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Newport Beach DUI Lawyer and Case Process

Saturday, March 6th, 2010

The timeline of what happens in a DUI Case

When you hire 99% of the firms that called themselves the Driving Under the Influence or DUI,  firms what you get is a high bill from lawyers who will not tell you their trial fee, cannot give you the case number and number of a case they have gone to trial on anywhere in the free world in the last year (this is all public record) and they plead you to the same exact deal that you could’ve gotten by yourself if you just showed up by yourself and talked to the prosecutor.  If the attorney does not go to trial, he is just one of those plea bargainers who really does not get you a deal and just steals your money.  They always tell you that you do not want to go to trial and trials are bad,  you should avoid trial and all kinds of other nonsense.  They tell you how they can get you a good deal without trial and all that other propaganda and you are really just getting the same deal that you would have gotten had you just shown up yourself.  I see this every day in court.  These lawyers lying and saying they got you a good deal, the same deal you could have gotten yourself…  It is a good deal…  a good deal for the lawyer who gets thousands of dollars and does not have to do a trial and work for it.  Many of them have no idea how to do a trial.  They have you plead guilty and they keep your money these lawyers are always available all hours of the day because they are done pleading all of their clients guilty by 10 AM daily

When you hire our firm, we have the mind-set that every case will go to trial, but  this does not mean that we do not ever plea-bargain. But if you have a reputation as an attorney for plea-bargaining you will never get a good deal because the prosecutor knows you will never do anything about it if they give you a bad offer.  Also,  if you have the mentality of just trying to give in an plead your client guilty and keep the money, the prosecutor has no incentive to give you a good deal.  When we do deal, the best deals have come on the first day of trial right before selecting a jury.

Procedure

The court case proceeds as follows: the first hearing is typically the arraignment and all that means there is that the judge just tells you what the charges are, which you already know, you do not need to appear unless it is a felony and we tell you that you have to appear and/or we just tell you that you have to appear.  We always enter a not guilty plea and get the documents such as the police report and related documents from the prosecutor. The police report just contains all lies the police wrote and they lie every time. Every hearing after that is just a hearing checking in with the judge and they are usually every 30 days as required and sometimes we have motions to get the prosecutor to turn over more evidence that we will that we need such as calibration and maintenance records on breath machines used to test the client.  These hearings are generally of no legal significance whatsoever unless we advise you otherwise and do not need to attend if unless we tell you so.  Whenever we need you to do something we let you know well in advance, but it is out practice to handle everything.  The case usually proceeds in this manner for about 6 months.  But, if the client just wants the case over with, we will get you your trial within 45 days which is the fastest we can get it done by law. We do like to age cases because things typically just get better the older, that is just our experience. There is no downside to going to trial because in the event we lose at trial and there is a sentencing hearing, the judge cannot punish you for exercising your constitutional right to a jury trial no more than he can punish you for your constitutional right to use an attorney or the Fifth Amendment and not take the witness stand and we always go over this with the judge before the trial starts this is to make sure that you are protected. In the event the judge was to violate the law we can always have your sentence stayed because you are entitled to bail on misdemeanors pending appeal so if it ever happens, which it has not, we would file a notice of appeal and post bail. The bail according to the schedule would be $5000 which means you would only have to pay a bondsman $400 and we would be happy to pay that for you.  We have NEVER had this problem or a client jailed for going to trial or even such an issue come up.

So there is nothing really to discuss until trial the police report is usually generally irrelevant it doesn’t matter what it says we have the antidote we’ve taken is to trial the matter how bad the police report seems and been successful there is no police report that cannot be overcome or has not been defeated in the past.  Now there are no guarantees in this business but there are no police reports that are foolproof and generally the police report for our purposes are only good for making the officer who wrote it look like an idiot at trial which we do quite well.  The Police report is useless to everyone, until we have the officer and can embarrass him.  We do this very well.  

So till the trial is around the corner, we do not usually have any updates on the case and/or ever get any information that the client would be interested in, but we would be sure to call if we did. We are happy to hear from a client by phone or email 24 hours a day as many times as the client wishes, we just may not have any news and would call you if we had news. 

The DMV

The DMV procedure is a rather simplistic. You are entitled to a hearing and at that hearing, the DMV prosecutor is the DMV Judge, generally someone with only a high school education although there are some good DMV Hearing officers.  Now you can just imagine for example if I was the defense attorney and the Judge in all of my cases I would win every case and the DMV statistics they publish are generally a 100% victory rate for them. The DMV may say it’s 99%,  but those are only rare cases where the police botched something and/or lost a blood sample or something.

THE ONLY INFORMATION THE DMV CONSIDERS AT THESE HEARINGS IS THE POLICE REPORT WHICH YOU CAN IMAGINE IS NOT HELPFUL. 

We sometimes use the DMV hearings to elicit officer testimony at that time by issuing a subpoena to the police officer to appear at the DMV hearing, but often times this is avoided because we don’t want the officer to know the approach we will take at the time of trial and want to catch them off guard.  There is no need for client participation in the DMV hearing because we do not want the client questioned or to testify because it that can be used against the client at trial. You will be given plenty of notice of when your suspension is to start if there is one either by our office or the DMV the minimum notice is two weeks.  The suspension on a first DUI is 30 days after which you get a restricted license for work and alcohol classes.  We have never had a client get in trouble while using a restricted license, but if you are pulled over and the officer asks you where you are going to find out if you are using the license for work.  Refuse to answer any questions and ask for a lawyer.  DO NOT DISCUSS ANYTHING WITH THE OFFICER.

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Dr. DUI on the Junk Science of Breathalyzers

Wednesday, March 3rd, 2010

Here is what you need to know about breathalyzers:

Okorie “Dr. DUI” Okorocha, Attorney  (Practice Limited to Defending those accused of DUI, regardless of alleged Blood Alcohol Concentration)
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
toll free: 800 285 1763
toll free Fax: 888 286 1840

“[Mr. Okorocha] is more specialized than any other lawyer that we have ever have in court”  –20 Year DUI Prosecutor on the skills of Mr. Okorocha–

“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.”
—Cynthia Roseberry

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