Texas Man Allegedly Had Blood Forcibly Drawn without Consent After DUI Arrest

Los Angeles DUI laws are very particular about what can and cannot be used as evidence during a DUI case. The following Texas case depicts what can happen if police officers don’t follow appropriate protocol.

According to news reports, in early January, an allegedly DUI driver, Joel Garcia, slammed into another car after speeding through a red light. The crash killed three people. Garcia’s own injuries were severe enough to warrant pain medication. Police had been afraid that the medications would lead to a false positive for DUI on his blood test, so they withdrew blood without his consent.

Garcia’s lawyer later protested that forcible removal of blood violated his rights. Texas, alongside many other states, allows police officers to engage in certain probing investigative activities without needing warrants following grievous injury or death. Due to Garcia’s alleged actions, three people were dead. The police believed that the seriousness of the situation allowed them to exercise their right to remove his blood for testing.

The U.S. Supreme Court has previously ruled that pressing or exigent circumstances do not provide officers with a reason to forego consent, except under some circumstances. In every case, this “exigency” must be carefully reviewed and validated by the court.

The DUI was not Garcia’s first offense. Police arrested him for another DUI earlier in the year. On the night of the fatal crash, he allegedly had several beers and three shots of spirits before getting in his car.

This case is important for two reasons.

1. Every state law is different. Had Garcia been driving in a different state, he might have had grounds to sue the police department for obtaining his blood without his consent.

2. The attention of an experienced Los Angeles DUI lawyer can be critical.

Designing and executing an effective defense against DUI charges (even simple ones) is not intuitive. Fortunately, you can trust the seasoned, highly successful Michael Kraut. Call a DUI lawyer in Los Angeles with nearly two decades of experience.

Call attorney Michael Kraut at (323) 464-6453 for help if you’ve been stopped for DUI in Los Angeles. Or Contact our team online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

Continue Reading...

Texas Man Gets Pulled Over for 8th DUI: Los Angeles DUI Lawyers React

In Los Angeles, DUI offenses can be punished by a few hours in prison or many years – the harshness of the sentencing depends on many factors, such as the nature of the alleged offense, the amount of damage done to people and property, and the history of the alleged DUI driver.

First non-injury offenses, usually involve minor punishments, like a driver’s license suspension, DUI awareness classes, and probation; whereas repeat DUI convictions can lead to a dramatic escalation in penalties.

A shocking case from Texas illustrates what can happen to super-recidivist DUI offenders. Police recently arrested Harold Moore, a successful janitorial service owner, for his 8th lifetime DUI. Moore had just been released from a four year prison sentence for his 7th DUI.

While in prison, Moore had enrolled in multiple alcohol treatment programs. Authorities released him from prison, pursuant to his participation in a decade long probation period. His prior DUI convictions allowed the presiding judge discretion in determining further sentencing requirements. Moore’s defense attorney stated that his seventh sentencing was mild and “truly a gift.”

Since Moore had been on probation, any BAC conviction would constitute a breach of his punishment. Moore’s BAC was allegedly 0.27%, more than 3 times the legal limit here in L.A. (and in Texas). Moore now might be looking at 20+ years in prison. The prosecution is attempting to add another 10 years for his breaching probation.

Moore’s case may be an extreme example, but repeat DUI offenses need to be aware that courts typically impose harsher penalties and begin adding jail time for every additional DUI offense.

Another important point to remember is that an out of state DUI conviction can still count toward your overall “total.”

In California, after three or more DUI convictions in a 10 year period — or if your DUI causes harm or death — you will likely face felony charges. at should you do if you or someone you love faces a serious DUI count? Will you go to jail? Will you lose your license? Call Los Angeles DUI defense lawyer Michael Kraut immediately to understand your options and craft a strategic response.

Have you been stopped for DUI in Los Angeles, contact attorney Michael Kraut at (323) 464-6453 or online. Our team is located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

Continue Reading...

DUI Charge Against Texas Judge Nora Longoria Dropped

Los Angeles DUI attorneys and pundits have been following the story of Nora Longoria, a judge for the 13th Court of Appeals in Texas, who was charged with a DUI in July 2014. Recently, prosecutors dropped her charges. McAllen police say that Longoria “begged for special treatment” when faced with sobriety tests, but Justice Rolando Cantu threw out the case based on “lack of evidence,” marking “other” as his reasoning on formal paperwork.

Longoria was originally pulled over for driving 69 MPH in a 55 MPH zone, but the arresting officer claimed she “smelled of booze and had slurred speech.” Longoria allegedly admitted she’d had five beers that evening but that she consumed her last one three hours before driving. She allegedly told the officer, “I live a couple miles away… You are going to ruin my life.” Longoria also refused to take a breath test. Social media exploded after Longoria’s DUI charge. People made comments such as, “Resign, you drunk” and “You are a disgrace to the court system, to the legal profession, and the citizens of Texas.”

Despite the angry comments and the evidence presented in court, Longoria eventually beat her DUI charge. Several people, including regular Kraut Law Group blog readers, may be wondering how and why. Our attorneys hypothesize a few possible reasons:

•    Lack of a conclusive test. A breath test and other sobriety tests are not generally as conclusive as a blood or urine draw, neither of which Longoria underwent. In fact, some experts believe traditional sobriety tests are “designed to make [people] fail.”

•    Unclear video evidence. The prosecution was able to obtain a video allegedly showing the circumstances of Longoria’s DUI arrest. However, the tape’s footage did not clearly show whether her speech had been slurred. Thus, the evidence that she “smelled of booze” essentially consisted of the arresting officer’s opinion.

•    Lack of other evidence. Besides the unclear video, the prosecution brought no conclusive evidence against Longoria.

Do you need assistance constructing an appropriate response to a DUI charge? Look to the Kraut Law Group’s Michael Kraut for insight and peace of mind. Mr. Kraut is an experience Los Angeles DUI attorney with many relevant connections in the local legal community.

If police arrested you for Los Angeles DUI, you may feel scared and confused. Contact Harvard Law School educated, ex-prosecutor Michael Kraut for assistance at (323) 464-6453 or online. We’re located at 6255 Sunset Boulevard, Suite 1480, Los Angeles, California 90028.

Continue Reading...

In People v. Tom, the Supreme Court of California Extends Salinas v. Texas to Allow Post-Arrest, Pre-Miranda Silence to be Consciousness of Guilt, part 3.

In the first blog post the Salinas v. Texas decision and "consciousness of guilt" was discussed. In the second blog post, the facts of the People v. Tom case were discussed, and the prosecutor's arguments.

In this blog post we will discuss the reasoning behind the majority decision. This was a difficult post to write, because I do not support the majority decision's logic. DUIs often involve people that were never expected to be in the criminal justice system. When they are, it often involves an education into how criminal law works, as well as what law enforcement can and can not do. The Bill of Rights (the first Ten Amendments to the Constitution) are supposed to be intuitive- just like those magical words by Thomas Jefferson in the Declaration of Independence, "we hold these truths to be self-evident."

But people do not understand their rights- as written about , we are becoming a two class society- those that know their rights, and those that do not. The decision in People v. Tom leads us further down unfortunate road and the reasoning is less intuitive than what triggers Miranda rights. Who will know that an arrestee needs to speak up, and speak up the right way, in order to exercise their right not to incriminate themselves?

How can the California Supreme Court punish an arrestee (still not guilty) for keeping quiet? They approach the decision from the point of view of the State, and law enforcement. While Constitutional rights belong to the individual, the People, represented by prosecutors and law enforcement, have rights too. Specifically, the People have the right to "everyone's testimony." There are only exceptions to the People's right to testimony, and one of those exceptions is the Fifth Amendment for a citizen not to incriminate himself.

As previously discussed, the Fifth Amendment is not the popularly conceived "Right to Remain Silent"- only not to incriminate oneself. The primary interest protected is against a false confession, which is protected by the right to have counsel present during questioning, and Miranda rights when a suspect is questioned in custody. The two work in tandem- Miranda informs the individual of his rights to ensure that any further questioning (or confessions) are voluntary. Part of Miranda is to insure that the arrestee knows his right to counsel and to remain silent.

The California Supreme Court quotes the U.S. Supreme Court in People v. Salinas that "[t]he privilege against self-incrimination 'is an exception to the general principle that the Government has the right to everyone's testimony.' This puts law enforcement on notice that the silence is on purpose, and not being done to think of a good lie, because they are overwhelmed with guilt, or some other nefarious reason.

Also, when someone else exercises their right not to incriminate themselves, law enforcement has the option to make a deal, or to question the individual about something else. For instance, John Smith will not answer questions about where he got the car stereo, but if he is offered immunity for his role, perhaps he will testify about theft ring he is a member of.

From the Supreme Court decision, Salinas v. Texas, the California Supreme Court considers that while out of custody Salinas' silence was used against him, and that if he wanted to remain silent for constitutional protection purposes he would clearly and unambiguously communicate it. From there, it is only a small step to allow Tom's silence, in custody but prior to being Mirandized, as fair game for the People in there case in chief.

The People, after all, are entitled to everyone's testimony, even if that testimony is silence.

In the last and final blog entry in this series, we will discuss the dissent of Justice Liu, who expertly discusses the logical and intuitive problems with the Tom decision.

Continue Reading...

Texas Finds Per Se DWI Search Statute Unconstitutional

Posted on August 15, 2014 by Jud Nichols

If we told you Texans were smarter than Minnesotans, you would laugh all the way to the Alamo.

That is, perhaps, unless you happened to stumble upon the recent Texas Supreme Court Decision of Aviles v. The State of Texas. In the wake of last year’s Missouri v. McNeely decision, the various States have all been given their own opportunity to interpret exactly how to protect the constitutional rights of drivers suspected of being impaired–and Texas decided to respect the rights of those drivers, rather than to water them down.

In Aviles v. The State of Texas, the Texas Supreme Court held the state’s warrantless search of Aviles’s blood to be without an exception, and therefore, unconstitutional. The procedural background of the case parallels Brooks in that Aviles was remanded from the U.S. Supreme Court be decided in light of McNeely.

The facts of Aviles are pretty straightforward: after Aviles was arrested for DWI, the officer brought up his laptop and discovered Aviles had two prior DWI’s. Bingo! The officer no longer needed a warrant because of a Texas statute permitting a police officer “to take a blood specimen from DWI suspect without a warrant if the officer has credible information that the suspect has been previously convicted on at least two prior occasions of DWI.”

Before forcing a blood draw, however, the officer asked Aviles if he would voluntarily submit to a breath or blood test. Interesting question because two aspects of it further distinguishes Texas from Minnesota: (1) there was no urine test offered because they do not withstand scientific scrutiny to be allowed in court; and (2) the officer, attempting to elicit valid consent, used the word “voluntary” because it must be free and voluntary to be legal consent—a question never asked in Minnesota DWI cases.

But, Aviles declined the warrantless search (yet another distinguishing aspect: he wasn't automatically charged with a crime). Herein lies the crucial moment: there is a failed attempt to elicit consent for a warrantless search that does not seem to have an exception. Does the officer have to get a warrant?

The officer took a test against Aviles’s will, relying on the Texas Statute for the “two prior convictions” exception. But does McNeely leave room for such a per se exception? The Texas Supreme Court said “no.” The court instead held that the state must take into account the totality of the circumstances present in each case, specifically noting that “it was incumbent upon the State to prove the warrantless blood draw was reasonable under the totality of the circumstances.”

Texas’s conclusion is the polar opposite of the one reached by our own Court of Appeals in Bernard (a case which is currently being reviewed by our own Minnesota Supreme Court). Let’s hope that Minnesota follows the lead of Texas, and everyone can start chanting “Don’t Mess With the Constitution.”

Trackbacks (0) Links to blogs that reference this article Trackback URL
http://www.mndwidefenseblog.com/admin/trackback/316525

Continue Reading...

Changes in DWI Law in Texas

Posted on September 1, 2009 by Ken Gibson

As of today, September 1, two new laws go into force that deal with DWIs in Texas.  Section 724.017 of the Transportation Code is now expended to allow more situations where police can do a forced blood draw without a warrant.  Mandatory warrantless blood draws are now allowed if a person is arrested for DWI, or BWI, the person refuses to submit to the taking of a specimen volutarily, and: 1) an individual other than the person arrested has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment; 2) the person is arrested for DWI with a child passenger under 15; 3) the officer has reliable information that the person has been previously convicted of DWI two or more times; or 4) the officer has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter.

The Legislature also tried to give some assurance to the health care providers that actually draw the blood persuant to a blood warrant, or mandatory blood draw.  Section 724.017 of the Transportation code was amended to provide protection to those who take blood specimens according to "recognized medical procedures."  However, this change in the law DOES NOT relieve a person from lability for negligence in the taking of a blood specimen.  And there lies the danger to anyone that takes blood under these intrusive warrant/warrantless blood draws.

View the original article here

Continue Reading...