San Francisco & Bay Area Criminal Defense Lawyers

The California Court of Appeals recently decided Coffey v. Shimoto , a case regarding rising blood alcohol after an arrest for DUI and the admissible evidence at a DMV administrative hearing regarding a license suspension.   In the case, Ms. Coffey was arrested for DUI. An hour later, she took a breathalizer test with a   test result of .08 percent BAC.   A few minutes later, her BAC test result was .09 %.   Twenty-five minutes later, she took a blood test, which resulted in a BAC of .095 percent. DMV suspended her license after a hearing at which the arresting officer testified that Ms. Coffey had driven “erratically,” appeared intoxicated, and had the usual script of bloodshot watery eyes, strong odor of alcohol, and poor performance on Field Sobriety Tests (FSTs). She challenged DMV’s decision with a writ of mandate and argued that uncontroverted expert testimony showed that her BAC had been rising (as evidenced by the three test results). ...

Opinion by: Justice Thomas The United States Supreme Court decided in Alleyne v. United States (June 2013) that any facts that would increase the mandatory minimum sentence of a crime must be submitted to the jury, overruling Harris v. United States (2002). In Alleyne , Petitioner was charged, among other offenses, with using or carrying a firearm in relation to a crime of violence, which carries a minimum sentence of 5 years imprisonment. On the verdict, the jury did not indicate a finding that the firearm was “brandished,” which carries a minimum sentence of 7 years. However, the presentence report recommended a 7-year sentence based on the court’s assertion that it had found evidence supporting a finding of brandishing. The District Court relied on Harris , which held that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment because facts can be a “sentencing factor” rather than an “element of the crime.”...

The California Court of Appeal of the Fifth Circuit held in In re Cabrera recently that possession of photocopies of drawings signed by prison gang members or associates is not sufficient to establish association with those artists. Under the Due Process Clause, administrative findings underlying a gang validation resulting in placement in a security housing unit (SHU) must be supported by “some evidence.” This “some evidence” test requires the court to determine whether there is any evidence in the record that could support the conclusion reached by the prison officials. The California Supreme Court asserts that there must be a “rational nexus between the evidence presented and the finding of fact made,” meaning that a decision to place an inmate in a SHU cannot be based on merely a hunch or intuition. Furthermore, validation of an inmate as an associate of a prison gang requires at least one source item to be a direct link to a current or former member or associate. Althou...

The United States Supreme Court recently ruled that the natural dissipation of alcohol in blood alone does not constitute exigent circumstances per se to justify a warrantless blood draw in DUI cases where the suspect does not consent. Without a warrant or consent from the suspected drunk driver, a blood draw is a violation of the driver’s Fourth Amendment right to be secure from unreasonable searches and seizures. Prior to this decision, Missouri v. McNeely , police officers in California were generally not required to obtain a warrant in order to draw blood for measuring blood-alcohol content in drunk-driving cases. In this landmark case, Missouri v. McNeely , Tyler McNeely was pulled over on the grounds of suspicion of driving under the influence. After refusing twice to take a breathalyzer, he was taken to a hospital where the police ordered his blood drawn without his consent or a warrant. The officer had not made an attempt to obtain a warrant because he thought that Miss...

The United States Supreme Court recently decided a number of criminal cases of interest to citizens, criminal law practitioners, and constitutional law aficionados.  This roundup summarizes the following cases: Bailey v. United States (search & seizure); Evans v. Michigan (double jeopardy); Florida v. Harris (4 th Amendment); and Chaidez v. United States (Sixth Amendment). Bailey v. United States , 652 F.3 rd 197 (2013): this case had to do with the execution of a search warrant. The Court held that police executing a search warrant may only “seize” or detain individuals within the “immediate vicinity” of the premises subject to the search. The facts of the case were as follows: while police were preparing to execute a warrant to search an apartment for a handgun, detectives conducting surveillance outside saw two men – later identified as Bailey and his friend – leave the apartment area in a car. The detectives followed the car for about a mile before stopping it....

In United States v. I.E.V., a Juvenile Male , the Ninth Circuit reiterated the parameters of a frisk pursuant to a Terry stop.  The facts of the case involved a male (juvenile) passenger of a car which was detained due to an alert by a drug-sniffing dog.  The officers didn't find that the boys in the car were either threatening or likely to flee.  Nonetheless, an officer testified that he found the juvenile to be "nervous" and "fidgety" and so both boys were patted down.  An officer felt an object under the juvenile's shirt, lifted his shirt without permission, and discovered a brick of marijuana. The juvenile defendant appealed the district court's denial of his motion to suppress the marijuana found under his shirt.  The Ninth Circuit concluded that the police officers had no particularized suspicions directed at the unthreatening defendant to justify the Terry frisk at its inception; the searching officer exceeded the lawful scope of the frisk by...

This week the California Court of Appeal concluded that a driver who deliberately races through a red light at a busy intersection and collides with another vehicle, causing injury to another, can be convicted of assault with a deadly weapon.   “Assault with a deadly weapon requires proof of an intentional act committed with knowledge of facts that would lead a reasonable person to realize that physical force would be applied to another as a direct and probable consequence of that act.”  Drivers beware! The Case is: People v. Aznavoleh , ____ Cal.App.4th ____, ____ Cal.Rptr.3d ____, 2012 D.A.R. 15249 (2nd Dist. 2012) November 06, 2012 (B231434)