The California Court of Appeals for the Third District recently made a ruling in a drunk driving case that will have an impact on an 85-year old ban against unmarked police cars in the state. The ban was initially implemented to eliminate clandestine speed traps, and the court decision supports traffic stops for offenses other than speeding.

A county sheriff’s deputy patrolling in an unmarked police car became suspicious of a vehicle driven slowly by Paul Dyer. After following Dyer and claiming his Jeep Cherokee crossed highway lines several times, a traffic stop was initiated. The officer suspected driving under the influence in California and had a second deputy arrive on the scene with a marked squad car. Though a breath test revealed a blood alcohol content below the legal limit for intoxication, the officer deemed the test ‘inconclusive’ and had Dyer arrested anyway.

A trial court dismissed the California DUI and ordered the return of the defendant’s driver’s license. The Department of Motor Vehicles appealed that decision.

California has outlawed unmarked police cars since 1923, in a direct effort to eliminate speed traps designed to supplement local revenues through exorbitant fines. The statute requires distinctively marked law enforcement vehicles.

The three-judge Appeals Court ruled that the officer with the unmarked vehicle in the Dyer case only played a supervisory role, and the actual arrest was made by the second officer. In addition, the court declined to apply the speed trap law to other traffic offenses, like drunk driving in California. The court ordered a new trial to determine if Dyer was legally intoxicated at the time of his DUI arrest.

Do you need a California DUI Lawyer?

A spokesperson for the California Highway Patrol has indicated that arrests over the Memorial Day Weekend for driving under the influence in California were lower than last year.

Across the state, CHP officers charged 1,301 motorists with drunk driving in California. Last year the total was 1,449. Arrests for DUI in Los Angeles County were down, while Sacramento DUI and San Francisco DUI incidents were higher.

It was speculated that the figures were influenced by an increased awareness of the dangers of driving while intoxicated and reduced driving due to high gas prices. CHP says that the Memorial Day Weekend traditionally is not the biggest holiday for drinking and driving. July 4th is reportedly worse, and New Year’s Eve has the highest number of arrests for California drunk driving.

The statistics reflect California DUI arrests made between 6:00 pm Friday and 6 am Monday.

Do you need a California DUI Lawyer?

The Senate Public Safety Committee of the California legislature is debating a bill that would lower the level of intoxication leading to an ignition interlock device. The current .20% blood alcohol content would be lowered to .16%. Motorists convicted of drinking and driving in California with the new BAC would be required to install interlock devices in every vehicle available to them. The devices would have to remain in the vehicles for 1-3 years, depending on the circumstances of the DUI. Motorists with previous arrests for driving under the influence in California or those arrested for driving with a suspended license would receive a longer sentence.

The bill states that the return of a motorist’s driver’s license would be contingent upon the documented installation of an ignition interlock device.

If you have been arrested for Driving Under the Influence in California you will need to hire a qualified California DUI attorney.

Santa Clara County law enforcement agencies recorded a notable increase in California DUI arrests over the 2007 Labor Day Holiday. California Highway Patrol Officer Mike Wright said, “one of the reasons arrests are going up is that law enforcement is able to throw in more resources.”

The increased patrol presence in the Bay Area yielded more DUI arrests in the first three days of the holiday than the entire holiday arrest total for 2006.

If you have been arrested for drunk driving you will need a California DUI Lawyer.

The Department of Motor Vehicles may suspend a driver’s license based on failure to submit to alcohol testing even in the absence of a finding the driver was operating a vehicle at the time of the refusal, the First District Court of Appeal has ruled.

Taking sides is a dispute it said had split California’s appellate courts for more than a decade, Div. Three on Tuesday took issue with two rulings by the Fifth District Jackson v. Pierce (1990) 224 Cal.App.3d 964 and Medina v. Department of Motor Vehicles (1987) 188 Cal.App.3d 744.

Presiding Justice William R. McGuiness said the better argument was that made by the DMV in support of its suspension of Terry Troppman’s license. Following the Fifth District’s 1988 decision in Rice v. Pierce, 203 Cal.App.3d 1460, and the Sixth District’s ruling in Machado v. Department of Motor Vehicles (1992) 10 Cal.App.4th 1687, McGuiness concluded that proof of actual driving is not required to support a license suspension or revocation in chemical refusal cases under Vehicle Code Sec. 13353.

Slumped in Van

A police officer woke Troppman at 10:45 p.m. on a Thursday evening in January of 2003 after finding her slumped over in the driver’s seat of a parked van. She was the only occupant, and the officer said he smelled alcohol and thought she appeared inebriated.

He arrested her after she failed field sobriety tests. At the police station she twice attempted to take a breath test without success, and then refused further testing.

At the administrative hearing Troppman conceded she was an alcoholic and had been drinking, but testified she had parked before she consumed quite a few glasses of wine and did not drive afterward.

The hearing officer concluded the arresting officer had reasonable cause to believe Troppman was driving drunk, but did not make a finding that she operated the van after drinking. A San Mateo Superior Court judge, relying on the Fifth District cases, ordered the resulting suspension set aside.

McGuiness noted the Troppman never challenged the lawfulness of her arrest. Hence, he reasoned, the case did not present the question of to what extent state high court case law requiring an officer to observe vehicular movement prior to making a drunk driving arrest was abrogated by subsequent legislation permitting arrests without such an observation where there is a risk that evidence may be destroyed by the passage of time.

Vehicle Code Mandates

The presiding justice pointed out that Sec. 13353 specifically requires hearing officers to review whether the officer making the arrest had reasonable cause to believe the arrestee was driving while under the influence, and to determine whether the arrestee was advised of the consequences of refusing to be tested.

McGuiness declared:

We agree with the reasoning of Rice and Machado. It is apparent the Legislature enacted section 13353 to give police officers a tool to obtain chemical testing from drunk driving suspects without having to resort to physical compulsion. Although the Legislature expressly conditioned the use of section 13353 upon a lawful arrest for driving under the influence and upon the officer’s reasonable belief that the arrestee was so driving, nowhere does the statute make suspension of the arrestee’s license conditional upon proof that he or she was actually driving at the time of the alleged offense. While the distinction between proof necessary to administer a chemical test and proof necessary to suspend a person’s driver’s license may hold some rhetorical appeal, we find no support for such a distinction in the language of the statutes. If the Legislature wished to make suspension of a person’s license under section 13353 conditional upon a finding that the person was actually driving at the time of the alleged offense, it could have easily added this subject to the required findings enumerated in the statute.

He continued:

Instead, under the language of section 13353, it is sufficient that the arresting officer has reasonable cause to believe the person had been driving’ while under the influence of drugs or alcohol.

Justices Carol Corrigan and Stuart Pollak concurred, but Pollak wrote separately to argue that it was unnecessary for the court to derive authority for the license suspension from the doctrine of implied consent.

Pollak wrote:

There is no constitutional or other impediment to the Legislature authorizing the forfeiture of a driver’s license if the person, lawfully arrested for suspected drunken driving and properly warned of the consequences…, refuses to submit to a chemical test of intoxication.

Troppman’s license suspension was valid, Pollak explained, not because she impliedly consented to submit to a chemical test under the circumstances, but because the validity and enforceability of section 13353 does not require such consent on her part.

The case is Troppman v. Gourley, 05 S.O.S. 761.

Thursday, February 10, 2005

By DAVID WATSON, Staff Writer

Copyright 2005, Metropolitan News Company

Are you in need of a California DUI Attorney?

Burlingame Police Chief Fred Palmer stands 5-foot-8 and packs 160 firm pounds on a bantam body he keeps in shape with a regimen of running and other exercise.

He likes to joke that the chief’s job he’s held for 20 years has “beaten me down since I was 6-foot-4 and weighed 220 pounds.”

Palmer, 57, has been tossing that line around a lot in recent days, since he announced he’s retiring from the department he has served since 1963, when he was hired as a dispatcher after his discharge from the Army’s Military Police.

He’s best known in California law enforcement circles as the chief who in the late 1980s initiated the state’s first sobriety checkpoint system to combat drunk driving. He set it up in such a way that it withstood a constitutional challenge by civil liberties groups and was upheld by the U.S. Supreme Court.

Palmer recalls, however, that the politicking behind the scenes was intense over whether Burlingame or the CHP should be the first department to go forward with such a program.

“Critics thought we were a podunk police department that was going to screw it up for everybody, but we did our homework,” boasts the chief.

Palmer, member of a marksman’s team in his Army days, fired his police revolver only once in the line of duty. He shot a fleeing felon in the leg who, in one of those split-second decisions cops are often called on to make, Palmer mistakenly had thought was about to draw a gun on him.

The man he shot, an ex-con who had a reputation for carrying a weapon, was happy that Palmer had a marksman’s eye. “He later thanked me for not killing him,” the chief recalls.

Palmer, popular both with police colleagues and news reporters, prides himself on a long-standing policy of getting out accurate and truthful information to the media and the public.

But there was one time, he confesses, that he flat-out lied to the press and he makes no apologies, because he believed a young kidnap victim’s life was at stake. The lie came only a few months after Palmer was named chief, during tense negotiations with the kidnapers of Niels Legallet, the 11-year-old scion of a wealthy pioneer California family. Palmer told the press there had been no phone contact with the kidnapers. “The kidnapers threatened to send the boy’s fingers back to us if I revealed we talked to them.”

Things turned out OK when Palmer’s newly created SWAT team rescued the youngster from a motel and arrested his captors. The amiable, gregarious chief was amused by a local newspaper’s article on his impending retirement in which it was noted that over the span of his career law enforcement, culture had largely switched from donuts to bagels and cappuccino. “Isn’t that something to be remembered for?” he laughs.

But the chief, who will be honored by the city at a June 13 retirement party, says the most significant change in police work since he started has been technological. For one thing, police have progressed from handwritten reports — sometimes a challenge to read — to laptop computers.

Palmer recalls that when Burlingame PD bought its first video camera 25 years ago, a two-way mirror was installed in a tiny closet next to the interrogation room.

One day, as then-Detective Palmer scrunched inside the closet taping an interview through the mirror, the detective questioning the suspect suddenly leaned back in his office chair “and just kept going until he hit the floor on his butt.”

The interrogation collapsed as well, when the suspect heard Palmer laughing uproariously inside the closet.

– Palmer’s retirement party is set for 6 p.m. June 13 at Burlingame’s Hyatt Regency Hotel. Tickets are $42 per person. Call 692-8440.

Friday, May 23, 1997 Page P1, 1997 San Francisco Chronicle

By Bill Workman

Are you in need of a California DUI Lawyer?

Under a new program being made public slowly across the state, the way drivers get smog tests for their cars or trucks will depend largely on where they live. The amount and types of pollutants cars are allowed to spew will change. Getting waivers for problem cars will be more costly — and more difficult.

Smog certificates will be sent by computer from smog check stations straight to the Department of Motor Vehicles. And in another high-tech twist, mobile smog sensors on the roadside will test cars as they roll by and immediately report them to the state.

The program, dubbed “Smog Check II,” is state officials’ answer to changes mandated by the 1990 federal Clean Air Act. The new laws are appearing in bits and pieces — some parts of the program require expensive new smog check stations and equipment — but should be fully in place by 1998.

The aim is to clear California’s notoriously hazy air, especially in smog-choked areas such as Sacramento and Los Angeles. The number of cars failing smog tests, about 18 percent of all vehicles tested in 1994-95, is expected to go up because of more sensitive testing equipment.

The big target is the smog- belching cars the state deems “gross polluters.” About 10 to 15 percent of cars and trucks cause about half the state’s smog problem. The state wants those off the road, so much so that officials may start offering to buy cars that cannot pass a smog test.

“This program is serious about getting high-polluting vehicles repaired,” said Maria Chacon Kniestedt, spokeswoman for Smog Check II. “Cars that used to be out on the road year after year causing big pollution problems will not be able to do that anymore.”

The new smog laws are nothing if not complicated. Some of the new laws are in effect, while others are just around the corner:

– As of last month, all California smog certificates are issued electronically. Cars and trucks to be tested are first identified by the DMV computer, and if the vehicle passes, the results are sent straight to the DMV. The procedure has required garages that conduct smog checks to spend about $2,500 to update each smog machine and adds about 10 minutes to the length of the test.

– Smog tests will vary widely by area. Drivers in many rural regions and most parts of the Bay Area, where air pollution is less severe, will still have their cars tested at any garage offering the service. The test still measures tailpipe gases while the car is standing still, although some emission limits have changed for some cars. The new test also checks for oxides of nitrogen, a pollutant the state has never screened for before.

In very smoggy areas, such as Vacaville, Fresno and San Diego, 15 percent of vehicles will have to be checked at special new “test-only” smog centers. And all cars, whether checked at a garage or a test-only center, will have to be tested on a treadmill-like machine called a dynamometer. Sacramento already has the new system, and the rest of the Central Valley is next, scheduled for next spring.

– Waivers for problem cars will be much harder to get, and drivers will have to go to special test or referee centers to get them. Owners will have to spend a minimum of $450 to bring their cars into compliance before applying for a waiver, and waivers will be issued only once every four years. Drivers who cannot afford the repair bill can apply for a one-time, one-year extension.

SLOW CHANGES, BIG REACTIONS

The changes are being phased in gradually, but they already have some drivers up in arms.

Owners of older cars worry that the new tests are too restrictive for classic roadsters, and they are especially concerned about a new part of the smog test that requires revving the engines of cars manufactured before 1981 to test emissions. State officials counter that the new laws are not part of any campaign to force someone’s classic Ford Mustang off the road.

Cars manufactured before 1966 do not have to have smog checks, and older cars that must be tested do not have to meet the same standards as newer vehicles. Many mechanics say good maintenance, not age, is the key to passing the test.

Still, similar programs in other states have sparked grassroots campaigns to repeal the laws.

“I’m sorry to hear California will have something like this,” said Greg Bell, spokesman for the Coalition to Repeal Ohio E-Check, a group fighting a similar program and picketing smog check stations in Ohio. “It is too restrictive, and it just doesn’t work.”

Even if California’s new program is only half in place, some drivers are already noticing — and sometimes fuming about — parts of Smog Check II already in effect.

At Stauder Chevron in Oakland, a garage that does about 10 to 15 smog checks a day, co-owner Mike Stauder has already seen some irate customers.

“People who fail the test by a big margin can have their car fixed here, but then they have to go get retested at the referee center, and there can be a big backlog,” Stauder said. “Some customers are not too happy about it.”

Just trying to get in touch with the referee centers indicated that customers may indeed have to wait for tests — 15 phone calls over three days yielded only a busy signal each time.

At San Francisco Auto Repair Center, owner Jerry Lewis said the new laws have just about everyone confused. “I get calls from customers wondering about the law. I get calls from other garages,” he said. “To many people, the rules seem very vague right now.”

In the middle of all the crossed signals, however, the drivers who seem the most unhappy are those who don’t want to spend the money to fix their smoky road machines, Lewis said.

“We get a certain number of people who are very upset,” said Lewis. “I tell them to go live in L.A. and see what it’s like.”

Some watching the new tests in action say most drivers have nothing to worry about. At the California State Automobile Association office in Sacramento, senior auto service specialist Bob Kelleher has been checking with garages that administer the new tests.

MOSTLY POSITIVE BUZZ

“There are customers who don’t like it, but overall what I’ve heard has been pretty positive,” said Kelleher. “About 90 percent of the vehicles that failed the test the first time passed it after being repaired.”

The way to pass the new smog check, state officials and mechanics say, is to keep your car well- maintained. Tampering with any part of a vehicle’s emission system is asking for trouble, because such changes will mean a trip to a special test or referee center when smog check time rolls around.

“We get people who come in here who drive around with their engines two to three quarts low on oil,” said Mike Stauder at Stauder Chevron. “Cars are just not kept up like they used to be.”

———————————————————————-

NEW SMOG RULES FOR CALIFORNIA

Under California’s complicated new Smog Check II program. how your car or truck will be testred depends a lot on where you live. Parts of the state with the dirtiest air — mostly the Sacramento, Central Valley, Los Angeles and San Diego areas — will face the toughest tests on new equipment. For other parts of the state, including most of the Bay Area, there are also strict new rules and standards.

HOW REMOTE SMOG SENSING WORKS

Remote smog sensors are appearing along California roadsides to measure emissions from cars as they drive by. The entire process takes about three seconds.

(1) An infrared beam shot across the highway picks up the contents of a car’s exhaust. A calibrator and computer on the other side of the road screen and measure the emissions.

(2) At the same time, a camera snaps a pictire of the vehicle’s license plate. The state uses that in information to find and notify the vehicle’s owner if emissions are too high.

SMOG TESTS DEPENDS ON WHERE YOU LIVE

HOW OFTEN VEHICLES ARE TESTED

Toughest testing (a) Once every two years, unless vehicle is a high polluter, and when vehicle change owners.

Less strict Once every two years, unless vehicle is a high polluter, and when vehicle changes owners.

Least strict Only when vehicle changes owners.

HOW VEHICLE IS TESTED

Toughest testing (a) 15 percent of all vehicles tested at new smog centers, others tested at private garages. All tested on treadmills. Test results sent by computer to DMV.

Less strict All tested at private garages, no treadmill. Test result sent by computer to DMV.

Least strict All tested at private garages, no treadmill. Test results sent by computer to DMV.

IF VEHICLE FAILS

Toughest testing (a) High polluters must be repaired and retested at new smog centers. Less severe polluters must be repaired and retested at either private garages or smog centers.

Less strict High polluters must be repaired and retested at special referee centers. Less severe polluters must be repaired and retested at private garages.

Least strict Allvehicles must be repaired and retested at private garages.

REPAIR COST WAIVERS (b)

Toughest testing (a) Vehicle owner must spend at least $450 on smog-relatred repairs before getting a waiver if vehicle fails test.

Less strict Vehicle owner must spend at least $450 on smog-related repairs before getting a waiver if vehicle fails test.

Least strict N/A

Toughest testing (a) If you cannot afford needed smog repairs, you may apply for a one-time, one-year extension.

Less strict If you cannot afford needed smog repairs, you may apply for a one-time, one-year extension.

Least strict N/A

(a) The new program for more polluted areas will only take effect as Smog Check II becomes fully operational in those areas. Currently, Sacramento is the only area where the program is completely in place. The Central Valley will follow next spring. (b) Waivers are not avaiable for vehicles that are changing ownership or are being registered in California for the first time.

PAGE ONE — Stricter Smog Rules For Cars
State Zeroes in on Most-Polluted Areas

April Lynch, Chronicle Staff Writer

Are you in need of a California DUI Lawyer?

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