Joho the Blog
An Entry from the Archives

DUI DEFENSE ATTORNEY IN CALIFORNIA

California DUI Laws

California law on dui and crimes

Isn't that how it should be? Why should the state be allowed to prosecute people using a "secret" technology, even if that technology is proprietary. A good argument/comparison might be closed source software, such as microsoft vs. open-source such as linux or bsd. Microsoft hides its source to keep it from the competition, but they do so to make money, not to put people in jail. When it comes to DUIs and the software used in breath test machines, the code should be open and notorious... who is to say that the software isn't programmed to give false high results and to sweep problems under the rug?

I challenge anyone to give me one good reason why a case should not be thrown out if the prosecution(via the manufacturer) cannot provide key operational information regarding the breath device in a DUI case. After all we are gauranteed the constitutional right to confront and cross examine our accuser, and isn't the breath machine making the accusation in a DUI case as it relates to the BAC of the driver?

I agree with you Bakersfield... there is no legitimate reason. If they are hiding the ball, they are probably lying about it.

I do agree with the above comments but can see both sides of the argument. How can you expect someone to defend themselves if they are unsure of what they are defending themselves from (without knowing the source code of the machine).

But then on the other hand I can understand the manufacturer not wanting to reveal it because doing so would severely jeopardize their profits and overall business.

Seems like the only solution would be for the state governments to only use "open source" machines and none others.

Time for the government to make a decision...

For too long the government has been caving in to MADD and other groups opposed to the consumption of alcohol. Far too many innocent people have been convicted of DUI due to the unreliability of the breath machine. There must be changes made in the law to account for machine fallibility.

Unfortunately, most California Judges do not have the courage to dismiss a case on the grounds that key information about the breath test cannot be obtained.

In our jurisdiction breath testing machines are widely used for DUI arrests. This type of attack on the machine is common and ensures the defendant of a fair trial and due process of law.

Breath Machines are inherently unreliable, the fact the manufacturer will not release technical information further exacerbates the false sense of veracity the results give to law enforcement.

This has been going on for some time as has this post is from mid 2005. As an update there has been no remedy to this situation. The courts really could not come to a resolution and since many have been simply, 'not allowing' this defense because the manufacturer won't allow it. What a shame. Instead of stepping up to the plate and either buying the rights to the source code or changing the laws to require the source code to be divulged in order to secure a government order (contract) for these machines they have chosen to simply deny American citizens their rights to a proper and thorough defense. As a DUI Lawyer I have been very dismayed at this particular issue.

In my jurisdiction the City Prosecutors routinely resist providing any information of the type at issue in the Tampa case. What is very troubling is the secrecy and mystery that is allowed to continue in spite of the increasing number of persons affected by the breath machines and how the machine alone can often determine whether the person is convicted of a criminal offense.

I agree with you Lamont Attorney. MADD seems to have too much influence in our courts. When a person is convicted, many judges make people attend a class put on by MADD.

The laws are actually much more stricter for juveniles. Juvenile DUI offenders face a one year drivers license suspension even though it may be their first offense.

Well actually, if you think the state DUI laws are tough just try defending yourself in federal court on some federal matter. The federal sentencing guidelines are very tough and if you commit a federal offense, you could be facing some serious time.

I agree with you Federal Lawyer, my experience in the Federal Courts are consistent with yours. However, in California most DUI cases are heard in the State Courts, with the exception of those cases where the arrest takes place on a military base such as in my County, China Lake Military Base. The one thing that is different from State and Federal Judges is the fact that Federal Judges have lifetime tenure which gives them a stronger backbone to deal with the MADD organization.

Things are just getting more difficult for those arrested in state court every year. The Alcohol Education programs are getting longer and longer.
And the enhancements for high blood alcohol levels are lower. We need lobbyist in Sacramento who will help get laws enacted that are fair. All to often laws are sponsored by DA Associations that are very punitive in nature. Cops often get rewarded by MADD for getting the most DUI arrests. They also get a lot of overtime for these DUI cases. Police also get grants to do check points.

Your absolutely right Los Angeles, in my area the Police officers get trophys and plaques from MADD and other groups based on their number of DUI arrests!

The Judges in California need to be as courageous as the judges in Seminole County.

Many police officers use the Draeger 7410 plus.
DA's often try to convince judges to disallow defense experts from testifying as to certain faults of the 7410 plus because they don't
own the exact model used by law enforcement and haven't tested that
particular instrument. Draeger will not even agree to give the defense bar a copy of the manual unless you work for the DA or law enforcement. Unless Drager shares info on its real faults, the Judges in California need to start dismissing these DUI cases as they did in Seminole County.

There is a lawyer in my community that pairs up with the MADD organization to make money. He and his workers make thousands of dollars from posing as advocates to lure work to their law firm. On top of that, MADD is pairing up with our local Florida law enforcement and the police officers are making thousands of dollars from writing seat belt tickets. Madd is no longer working for justice, it is just a way for police officers and lawyers to make tons of money.