The Purpose

To test motor/mechanical skills, your divided sense of attention and
the ability to process information. This test does not determine if you
are drunk (impaired).

The Test

1. Alcohol Gaze Nystagmus
   1. early on set – wavering at 45 deg. indicates .10 BAC as a
      general rule.
   2. tracking – inability to stay on track and follow finger or
      pencil.
   3. extremes – very early on-set
2. Standing on One Foot – Balance
   1. hands at your side
   2. one foot extended 30 inches
   3. count by thousands
3. Walking Imaginary Line
   1. 10 forward, 9 back – or any combination
      Where suspect must ‘process info and think’ of two separate
      instructions.
   2. heal to toe
   3. turning – (even)
4. Finger Counting
   1. 1,2,3,4/4,3,2,1
5. Alternate Clapping
   Palm and the back of your hand while counting

Other Variables that are on the Police Report

The appearance of the person plays a large part in the officers
assessment if the person is under the influence or not. Police officers
generally evaluate a driver’s physical appearance and condition while he
is still seated in the vehicle. This evaluation typically includes:

1. breath odor
2. condition of the eyes
3. demeanor
4. color of face
5. dexterity
6. speech
7. clothing

The Person

• Clothes
• Breath
• Attitude
• Unusual Actions
• Speech
• Complexion
• Alphabet – Written or Spoken (and Even Sung)
• Eyes
• Chemical tests in the field (Portable Breath Alyzers – PBA’s)
  (passive and active devices, not a substitute for a chemical
  test)

The Car

1. Towing – Some persons have their car towed while others have them
   parked or driven to a safe area. This depends on where you were stopped
   and what the officers want to do at the time of stop.
2. Occupants are many times tested to see if they can take the car and
   drive home or told to walk or taken to a phone so they can find a
   ride.
3. Search- no search warrant required, if there is reasonable
   suspicion to suspect something like an open container or other
   violation of the law has been broken. The officers either needs your
   permission or a search warrant to check your trunk where there is no
   arrest, but if there is an arrest or any probable cause the officer can
   check the entire car and any containers or locked items such as a
   suitcase of briefcase.

Portable Breath Test

Preliminary Alcohol Screening (PAS) Device

The use of PAS devices constitutes a search or seizure within the
meaning of the Fourth amendment. The use of PAs devices is legal, and is
considered another field sobriety test.

Officers are required to obtrain consent from a subject prior to
testing. They shall read the admonishment:

"I am requesting that you take a preliminary alcohol screening test to further assist me in ….You may refuse to take this test…this is not an implid consent test….you will be required to give a sample of your blood or breath for the purposes of determining…."

CHP Manual

Are you in need of a California DUI Attorney?

NORTH BAY – 4 Arrested for Illegal Driving Outside Court

Friday, August 15, 1997 – Page A20

©1997 San Francisco Chronicle

Petaluma — Moments after appearing in Sonoma County court to face
charges of driving under the influence or without a license, four men
were arrested yesterday for illegally driving away from the
courthouse.

They were among several defendants who had been in court yesterday
morning for previous offenses such as driving under the influence,
driving without a license or driving with a suspended or revoked license,
police said.

After their hearings, the defendants were followed outside the
courthouse by plainclothes officers in an undercover sting operation.
Three of them left with licensed drivers, but four men illegally drove
away on their own, only to be stopped by waiting police cars around the
corner.

Arrested were: John Melrose, 30, of Petaluma; Steven Young, 41, of
Petaluma; David Mehr, 20, of Larkspur; and Trinidad Camrillo, 29, of
Santa Rosa.

Vehicle Code Sections Related to DUI

Suspension

Negligent Operator Code

12810. In determining the violation point count, the following shall
apply:

(a) Any conviction of failure to stop in the event of an accident in
violation of Section 20001 or 20002 shall be given a value of two
points.

(b) Any conviction of a violation of Section 23152 or 23153 shall be
given a value of two points.

(c) Any conviction of reckless driving shall be given a value of two
points.

(d) (1) Any conviction of a violation of subdivision (c) of Section
192 of the Penal Code, or of Section 2800.2, subdivision

(b) of Section 21651, subdivision (b) of Section 22348, subdivision
(a) of Section 23109, subdivision (c) of Section 23109, or Section 31602
of this code, shall be given a value of two points.

(2) Any conviction of a violation of subdivision (a) or (b) of Section
23140 shall be given a value of two points.

(e) Except as provided in subdivision (g), any other traffic
conviction involving the safe operation of a motor vehicle upon the
highway shall be given a value of one point.

(f) Any accident in which the operator is deemed by the department to
be responsible shall be given a value of one point.

(g) (1) A violation of paragraph (1), (2), (3), or (5) of subdivision
(b) of Section 40001 shall not result in a violation point count being
given to the driver if the driver is not the owner of the vehicle.

(2) Any conviction of a violation of subdivision (a) of Section 21116,
Section 21207.5, 21708, 21710, 21716, 23120, 24800, or 26707 shall not be
given a violation point count.

(3) A violation of Section 23136 shall not result in a violation point
count.

(h) A conviction for only one violation arising from one occasion of
arrest or citation shall be counted in determining the violation point
count for the purposes of this section.

(i) Any conviction of a violation of Section 14601, 14601.1, 14601.2,
or 14601.3 shall be given a value of two points.

(j) Any conviction of a violation of Section 27360 within a 37-month
period shall be given a value of one point.

12810.5. (a) Except as otherwise provided in subdivision (b), any
person whose driving record shows a violation point count of four or more
points in 12 months, six or more points in 24 months, or eight or more
points in 36 months shall be prima facie presumed to be a negligent
operator of a motor vehicle.

In applying this subdivision to a driver, if the person requests and
appears at a hearing conducted by the department, the department shall
give due consideration to the amount of use or mileage traveled in the
operation of a motor vehicle.

(b) (1) Any class A or class B licensed driver, except persons holding
certificates pursuant to Section 2512, 12517, 12519, 12523, or 12523.5,
or an endorsement issued pursuant to paragraph (2) or (4) of subdivision
(a) of Section 15278, who is presumed to be a negligent operator pursuant
to subdivision (a), and who requests and appears at a hearing and is
found to have a driving record violation point count of six or more in 12
months, eight or more points in 24 months, or 10 or more points in 36
months is presumed to be a prima facie negligent operator. However, the
higher point count shall not if the department reasonably determines that
four or more points in 12 months, six or more points in 24 months, or
eight or more points in 36 months are attributable to the driver’s
operation of a vehicle requiring only a class C license, and not
requiring a certificate or endorsement, or a class M license.

(2) For purposes of this subdivision, each point assigned pursuant to
Section 12810 shall be valued at one and one-half times the value
otherwise required by that section for each violation reasonably
determined by the department to be attributable to the driver’s operation
of a vehicle requiring a class A or class B license, or requiring any
certificate or endorsement described in this section.

(c) The department may require a negligent operator whose driving
privilege is suspended or revoked pursuant to this section to submit
proof of financial responsibility, as defined in Section 16430, on or
before the date of reinstatement following the suspension or revocation.
The proof of financial responsibility shall be maintained with the
department for three years following that date of reinstatement.

(d) This section shall become operative on January 1, 1993.

Administrative Proceedings – DMV Smoke a Joint Lose Your License

VC 13202.3.

(a) The department shall immediately suspend or delay the privilege of
any person to drive a motor vehicle for six months upon receipt of a duly
certified abstract of the record of any court showing the person has been
convicted of any controlled substance offense specified in ….. For each
successive offense, the department shall suspend the person’s driving
privilege for those possessing a license or delay the eligibility for
those not in possession of a license at the time of their conviction for
an additional six months. This subdivision does not apply if , upon
conviction, the court orders the department to suspend….

(e) This section shall remain in effect only until one year following
its effective date and as of that date is repealed, unless a later
enacted statute, which is enacted before that date…

License Suspension – Commercial Drivers

VC13352.

(a) The department shall immediately suspend or revoke, or record the
court-administered suspension or revocation of, the privilege of any
person to operate a motor vehicle upon receipt of a duly certified
abstract of the record of any court showing that the person has been
convicted of a violation of Section 23152 or 23153 ….of Section 23109.
For purposes of this section, suspension or revocation shall be as
follows:

(1) Upon a conviction or finding of a violation of Section 23152
punishable under Section 23160, the privilege shall be suspended for a
period of six months if the court orders the department to suspend the
privilege, or if the court does not grant probation, or if the offense
occurred in a vehicle requiring a driving with a class A or class B
drivers license or with a certificate.. …..

However, where (A) the driving privilege is required to be suspended
by this paragraph due to the violation having occurred in vehicles
requiring a class (A) or class B driver’s license, and (B) the court
grants probation and imposes the condition specified…., The department
shall issue the person a class C driver’s license restricted in the same
manner and subject to the same conditions as specified in subdivision (e)
of Section 13352.5. If the person gives proof of ability to respond in
damages as defined…, the department shall issue the restricted license
upon receipt of an abstract of record from the court..certifying that the
court has granted probation….

(2) Upon a conviction or finding of a violation of Section 23153..

Completion of Program

13352.4

(a) (1) The department shall require a person upon whom the court has
imposed the condition of probation required by…to submit proof of the
satisfactory completion of a program licensed…with a time period set by
the department, beginning from the date of conviction….

(b) The department shall suspend the privilege to drive of any person
who is not in compliance with subdivision (a).

(c) The department shall not restore the privilege to operate a motor
vehicle after a suspension pursuant to subdivision (b) until the
department received proof of completion of a program.

Probation Violation

13352.5.

(a) Unless ordered to do so by the court upon a finding that the terms
and conditions of probation were violated, the department shall not
suspend, pursuant to paragraph (3) of subdivision (a) of Section 13352,
but shall restrict, the privilege of any person to operate a motor
vehicle upon a conviction or finding…of 23152. This requirement shall
apply only if the court has certified to the department that the court
has granted probation to the person.., the court has restricted the
privilege to operate a motor vehicle as provided in ..(23166), and the
person gives proof of financial responsibility.

(d) The restriction of the driving privilege under subdivision (a)
shall become effective 30 days from the date on which the person
consented to participate in the program specified in subdivision (a),
excluding any time of imprisonment ordered by the court. This requirement
applies only if the participating in the program specified in subdivision
(b) of section 23166

Refusal of Chemical Test

13353.

(a) If any person refuses the officer’s request to submit to, or fails
to complete, a chemical test or tests pursuant…., upon receipt of the
officer’s sworn statement that the officer had reasonable cause to
believe the person had been driving a motor vehicle in …and that person
refused to submit to, or did not complete, the test or tests after being
requested by the officer, the department shall do one of the
following:

(1) Suspend the person’s privilege to operate a motor vehicle for a
period of one year.

(2)…two years if the refusal occurred within seven years of either
(A) a separate violation…

(3) (c) Upon receipt of the officer’s sworn statement, the department
shall review the record. For the purposes of this section, the scope of
the administrative review shall cover all of the following issues:

(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of Section 23152 or
23153.

(2) Whether the person was placed under arrest.

(3) Whether the person refused to submit to, or did not complete, the
test or tests after being requested by a peace officer.

(4) Whether, except for the persons described in subdivision (a) of
Section 23157 who are incapable of refusing, the person had been told
that his or her driving privilege would be suspended or revoked if he or
she did not submit to, or did not complete, the test or tests.

Refusal to Take PAS Preliminary Alcohol Screening Test
(Minor DUI)

13353.1

(a) If any person refuses an officer’s request to submit to, or fails
to complete, a preliminary alcohol screening test pursuant to Section
23157, ..and ..that the officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of 23136, ..and the
person refused..or did not complete, the test after being requested by
the officer, ..the department shall do one of the following:

(1) Suspend the person’s privilege to operate a motor vehicle for one
year.

(2) Revoke the person’s privilege to operate a motor vehicle for a
period of 2 years if the refusal occurred within 7 years of either of the
following:

(b) The notice or the order of suspension or revocation …shall be
served on the person by the peace officer….and shall not become
effective until 30 days after the person is served….

(c) Upon receipt of the officer’s sworn statement, the department
shall review the record. …..the administrative review shall cover all
the following issues:

(1) Whether the peace officer had reasonable cause to believe the
person had been driving a motor vehicle in violation of 23136…

4 Month Suspension – Excessive BAC

13353.2

(a) The department shall immediately suspend the privilege of any
person to operate a motor vehicle for any one of the following
reasons:

(1) The person was driving a motor vehicle when the person had 0.08%
BAC.

(2) The person was under 21 and had 0.05%

(3) The person was under 21 and had 0.01% as measured by PAS, or other
test.

(e) This is a civil matter.. if a person is acquitted of criminal
charges relating to suspension..the department shall immediately
reinstate privileges. If charges are dropped or not filed the person a
renewed right to a hearing. A hearing must be made within one year from
date of arrest.

Order of Suspension

13353.3

(a) An order of suspension of a person’s privilege to operate a motor
vehicle under 13352.2 shall become effective 30 days after the person is
served with notice.

(b) The period of suspension is as follows:

(1) If no separate convictions (including 23103) the suspension is for
four months.

(2) If person has been convicted of one or more separate violations
…suspension is for one year.

Restoration of Driving Privileges

13353.4

(a) Except as provided in subdivision (b) of Section 13353.6, or
Section 13353.7 or 13353.8, the driving privilege shall not be restored,
and no restricted or hardship permit to operate a motor vehicle shall be
issued, to a person during the suspension period.

(b) The privilege to operate a motor vehicle shall not be restored
after a suspension…until all applicable fees…have been paid and the
person gives proof of financial responsibility.

(c) The privilege to operate a motor vehicle shall not be restored
after a suspension …until the person gives proof satisfactory proof of
completion of a DUI program.

Out of State Conviction

13353.5

(a) Notwithstanding subdivision (c) or (d) of Section 13353.4 if a
person whose driving privilege is suspended or revoked under 13352 or
13352.4 is a resident of another state..upon written application of the
person, terminate the suspension..for the purpose of allowing the person
to apply for a license in his or her state of residency. The application
shall include, by not be limited to, evidence satisfactory to the
department that the applicant now resides in another state.

(b) If the persons submits an application for a license after ..3
years..a license shall not be issued until …program completion.

13353.7

(a) Subject to subdivision (c) and except as provided in Section
13353.6 for persons who have commercial driver’s licenses, if the person
whose driving privilege has been suspended under Section 13353.2 has not
been convicted of, or found to have committed, a separate violation of
Section 23103, as specified…, and if the person’s privilege to operate
a motor vehicle has not been suspended or revoked pursuant to Section
13353 or 13353.2 for an offense which occurred on a separate occasion
within seven years of the occasion in question and, if the person
subsequently enrolls in a program described in Section …., that person,
if 21 years of age or older at the time the offense occurred, may apply
to the department for a restricted driver’s license limited to travel to
and from the activities required by the program or to and from and in the
course of the person’s employment, or both. Notwithstanding any other
provision of law, if the person’s restricted driver’s license permits
travel to and from and in the course of his or her employment, the
person’s privilege to operate a motor vehicle shall be suspended, subject
to the restriction, for six months. After receiving proof of enrollment
in the program, and if the person has not been arrested subsequent to the
offense for which the person’s driving privilege has been suspended under
Section 13353.2 for a violation of Section 23103,….., and if the
person’s privilege to operate a motor vehicle has not been suspended or
revoked pursuant to Section 13353 or 13353.2 for an offense which
occurred on a separate occasion, notwithstanding Section 13351, suspend
the person’s privilege to operate a motor vehicle for 30 days and then
issue the person a restricted driver’s license under the following
conditions:

(1) The program shall report any failure to participate in the program
to the department and shall certify successful completion of the program
to the department.

(2) the person was 21…and gives proof of financial
responsibility..

(3) The restricted driver’s license authorizes the operation of a
motor vehicle only to and from the activities required under the
program.

(4) If any person who has been issued a restricted license under this
section fails at any time to participate in the program, the department
shall suspend the restricted license immediately. The department shall
give notice of the suspension ….

(5) On or after 60 days after the effective date of the restricted
license, and upon notification of successful completion of the program,
the department may issue an unrestricted driver’s license to the
person.

Hearing – “What’s On The Table”

13557.

(a) The department shall review the determination…relating to any
person who has received a notice of an order of suspension…

(1) If the department determines in the review of the determination
made…by a preponderance of the evidence, all of the following facts,
the department shall sustain the order….

(A) That the peace officer had reasonable cause to believe that the
person had been driving….

(B) The person was placed under arrest…..

(C) That the person refused or failed to complete the chemical
test…

(D) That…the person had been told that his or her privilege …would
be suspended..if he or she refused to submit to, or complete, the
required testing.

If the department determines, by a preponderance of the evidence, that
any of those facts were not proven, the department shall rescind the
order of suspension…(and) return ..the person’s driver’s license..

13558

(Those submitting to test)

(A)….driving

(B) ..arrest

…..same as 13557 except…

(C)
(i)…had a 0.08 BAC
(ii) 0.05 under 21.
(iii) 0.01 by PAS

Suspensions

14601

(a) No person shall drive a motor vehicle at any time when that
person’s driving privilege is suspended or revoked for reckless driving
in violation of Section 23103 or 23104, ……

(b) Any person convicted under this section shall be punished as
follows:

(1) Upon a first conviction, by imprisonment in the county jail for
not less than five days or more than six months and fine of not less than
three hundred dollars ($300) or more than one thousand dollars
($1,000).

(2) If the offense occurred within five years of a prior offense which
resulted in a conviction of violation of this section …by imprisonment
in the county jail for not less than 10 days for more than one year and a
fine or not less than five hundred…or more than two thousand
dollars……

14601.1

(a) No person shall drive a motor vehicle when his or her driving
privilege is suspended or revoked for any reason other than those listed
in Section 14601, 14601.2 or 14601.5, if the person so driving has
knowledge of the suspension….

(b) Any person convicted under this section shall be punished as
follows:

(1) Upon a first conviction, by imprisonment in the county jail for
not more than six months or by a fine of not less than three hundred..or
more than one thousand …or both….

(2) If the offense occurred within five years of a prior offense which
resulted in a conviction….5 days …one year….and by a fine of not
less than $500 …or more than $2,000

14601.2

(a) No person…when that person’s driving privilege is suspended or
revoked for a conviction of a violation of Section 23152 or 23153…

(b) Except in full compliance with the restriction, no person shall
drive a motor vehicle at any time when that person’s driving privilege is
restricted …

(d) Any person convicted of a violation of this section shall be
punished as follows:

(1) Upon first conviction, by imprisonment in the county jail for not
less than 10 days…or more than six months…and by a fine of not less
than $300 or more than $1,000

(2) If the offense occurred with five years…. of a prior offense
which resulted in a conviction….5 days …one year….and by a fine of
not less than $500 …or more than $2,000….

14601.3
Habitual Traffic Offender

(a) It is unlawful for a person whose driving privilege has been
suspended or revoked to accumulate a driving record history which results
from driving during the period of suspension…. A person who violates
this subdivision is designated as a habitual traffic offender.

For purposes of this section, a driving record history means any of
the following, if the driving occurred during any period of suspension or
revocation:

(1) Two or more convictions within a 12-month period of an offense
given a violation point count of two ….

14601.5.

(a) No person shall drive a motor vehicle at any time when that
person’s driving privilege is suspended or revoked pursuant to Section
13353, 13353.1, 13353.2 and that person has knowledge of the suspension
or revocation.

(b) Except in full compliance with the restriction, no person shall
drive a motor vehicle at any time when that person’s driving privilege is
restricted pursuant to Section 13353.6, 13353.7, or 13353.8 and that
person has knowledge of the restriction>

(d) any person convicted of a violation of this section shall be
punished as follows:

(1) Upon first conviction, by imprisonment in the county jail for not
more than six months or by a fine or not less than three hundred
dollars..or more than one thousand..or by both that fine and
imprisonment.

(2) If the offense occurred with five years….

(e) the court may waive the mandatory minimum imprisonment period
..

(h) Nothing in this section prohibits a person with a suspended
license from driving a motor vehicle when emergency medical service is
needed immediately.

14601.8. The judge may, in his or her discretion, allow any person
convicted of a violation of Section 14601 or 14601.1 to serve his or her
sentence on a sufficient number of consecutive weekend days to complete
the sentence.

14602. (a) (1) Whenever a person is convicted of any of the following
offenses committed while driving a motor vehicle of which he or she is
the owner, the court, at the time sentence is imposed on the person, may
order the motor vehicle impounded for a period of not more than six
months for a first conviction, and not more than 12 months for a second
or subsequent conviction:

(A) Driving with a suspended or revoked driver’s license.

(B) A violation of Section 2800.2 resulting in an accident or Section
2800.3, if either violation occurred within seven years of one or more
separate convictions for a violation of any of the following:

(i) Section 23103, if the vehicle involved in the violation was driven
at a speed of 100 or more miles per hour.

(ii) Section 23152.

(iii) Section 23153.

(iv) Section 191.5 of the Penal Code.

(v) Subdivision (c) of Section 192 of the Penal Code.

(2) The cost of keeping the vehicle is a lien on the vehicle pursuant
to Chapter 6.5 (commencing with Section 3067) of Title 14 of Part 4 of
Division 3 of the Civil Code.

(b) Notwithstanding subdivision (a), any motor vehicle impounded
pursuant to this section which is subject to a chattel mortgage,
conditional sale contract, or lease contract shall be released by the
court to the legal owner upon the filing of an affidavit by the legal
owner that the chattel mortgage, conditional sale contract, or lease
contract is in default and shall be delivered to the legal owner upon
payment of the accrued cost of keeping the vehicle.

14602.6
This is the new first offense impoundment section. It provides that a
copy may tow a vehicle in accord with…and store for 30 days if driven
by any person who is eithe

September 14, 2006 12:21 p.m. EST

Christopher Cornell – All Headline News Staff Writer San Diego, CA
(AHN) – The consequences of Steve Foley’s bizarre night on the town in
San Diego a few weeks ago continued to pile up on Wednesday. Authorities
stated that they would seek drunken driving charges against the Chargers’
linebacker. The charges stem from an incident earlier this month in which
Foley was shot three times by an off-duty police officer.

Investigators have recommended that authorities seek misdemeanor DUI
charges against Foley. Charges have not been filed as of yet.

Early in the morning on September 3, Foley was shot at least three
times by an off-duty policeman. Foley was shot near his suburban home at
around four o’clock in the morning after the officer chased him for
several miles when he suspected the car was being driven by a drunk
driver.

Foley’s agent, David Levine, said that Foley was shot three times and
had surgery for wounds to his leg, arm and chest.

At about 3:30 a.m., an off-duty police officer began following a
suspected drunk driver around northbound Highway 163 and Highway 52.

The officer claimed the vehicle was weaving in and out of traffic,
reaching speeds of 90 mph. According to the policeman, the vehicle nearly
hit several other cars on the road.

Foley’s car stopped three different times while the officer pursued
them. Lisa Maree Gaut was identified as a passenger in the car. The
officer said that she yelled out the window during one of the car’s
stops.

When Foley reached a cul-de-sac in Poway, which is the neighborhood
where he lives, he got out of the car and began walking toward the
officer’s car. As Foley advanced toward the police car, Gaut got behind
the wheel of the car and followed Foley along his side. The officer
identified himself and fired a warning shot into some nearby bushes.

Upon hearing the shots, Gaut revved the engine and drove directly at
the officer, who had exited the car at that point. The officer fired two
shots at the car. Luckily, the car did not strike the officer.

Foley continued to walk toward the officer and then reached into his
pants with his right hand. That’s when the officer fired and hit Foley.
Foley acknowledged he had been shot, but he continued to come at the
officer, and the officer fired and hit him again, sending him to the
ground.

Foley was taken to a local hospital while the female passenger was
taken to the Poway sheriff’s station for questioning.

This is the second time in four and a half months that Foley has had a
run-in with the law. He was arrested April 21 on charges of resisting
arrest following a scuffle with police. He was booked on charges of
battery on a police officer and public drunkenness.

The officer that shot Foley, Aaron Mansker, has been placed on paid
administrative leave. Foley was hospitalized in fair condition and will
miss the season. He has been placed on the Chargers’ non-football related
injury list, and he will not be compensated for this season.

Foley played college football for Northeast Louisiana from 1994-97. He
has played eight NFL seasons for the Cincinnati, Houston and San Diego.
He signed with the Chargers in 2004. That year he had the best season of
his career: 64 tackles, 10 sacks, two interceptions and five forced
fumbles.

Foley was considered a team leader and one of the biggest impact
players in the Chargers’ 3-4 defense. He had 14 sacks over the last two
seasons.

Source:

Foley case generates debate on pulling over By Alex Roth

UNION-TRIBUNE STAFF WRITER September 9, 2006

Is a driver required to pull over when ordered to do so by a guy in an
unmarked car who claims to be a police officer? The answer, as a general
rule, is no, legal experts say.

The issue has been the topic of endless water-cooler debate in the
week since San Diego Chargers linebacker Steve Foley was shot by a
Coronado officer near the player’s Poway home at 3:41 a.m. Sept. 3.

The officer was off duty, wearing civilian clothes and driving his
civilian car – a black Mazda sedan – when he spotted Foley’s classic
Oldsmobile Cutlass weaving erratically on state Route 163.

Officer Aaron Mansker tried to get Foley to stop. Foley ignored the
officer’s commands, touching off a series of events that ended with the
officer shooting Foley three times after the player exited the car near
his house. In a court appearance Thursday, a lawyer for Lisa Maree Gaut,
a passenger in the Cutlass, said Foley thought the officer might be a
carjacker or an “overexuberant fan.†Under
state law, a person who refuses to pull over can’t be convicted of
evading a police officer unless the officer’s car has a red light and a
siren. Additionally, the officer must be in uniform and the officer’s car
must be “distinctively marked†as a
law-enforcement vehicle.

The reason for the wording of the statute is fairly obvious, legal
experts say: A driver shouldn’t be forced to stop unless he or she is
positive the person in the rear-view mirror is really a police
officer.

‘The Red Light Bandit’ Crimes and hoaxes have been committed by people
posing as cops. In perhaps the most notorious incident, a man dubbed
“The Red Light Bandit†terrorized Los
Angeles in the 1940s by posing as a police officer, pulling over cars and
then robbing and raping the drivers. Caryl Chessman was eventually
arrested and executed at San Quentin State Prison.

California appeals courts cite the Chessman case as justification for
the wording of Vehicle Code section 2800.1, the statute that deals with
evading police.

“People don’t have a duty to yield if a car is not
distinctively marked,†said Deputy Attorney General Zee
Rodriguez, who works in Los Angeles. “Even if the
person says they’re a police officer, how would you know? It could be
anybody.â€

Rodriguez recently appeared before the California Supreme Court in a
case involving the statute’s interpretation.

The court ruled in June that in addition to having a red light and a
siren, the police officer’s vehicle must have “one or
more features that are reasonably visible to other drivers and
distinguish it from vehicles not used for law enforcement so as to give
reasonable notice to the person being pursued that the pursuit is by the
police.â€

In e-mails to The San Diego Union-Tribune, some readers said they
would have done what Foley did under the circumstances: kept driving. The
risk is too great, these readers said, that the person claiming to be a
cop could be a criminal.

“I’m a 52-year-old Caucasian woman, and I’ll
guarantee you that under no circumstances would I have pulled
over,†wrote Janice Barnard, a document-management consultant
who lives in Del Mar. “If that person followed me home
and pulled a gun on my husband, I (would) do whatever necessary to stop
him.â€

Even law-enforcement officials caution drivers against pulling over
without knowing for sure that the person ordering the stop is a peace
officer. In such circumstances, drivers should pull over only in
well-lit, well-populated areas, said Lt. Tim Henton of the El Cajon
Police Department.

What if the driver is on a dark, lonely stretch of countryside, with
no well-lit place in sight?

“Keep driving and get on the phone and call
911,†Henton said.

Depends on situation Given the potential for confusion, some police
departments caution officers not to intervene when they witness
relatively minor criminal offenses while off duty, said Richard Gregson,
executive director of the California Peace Officers’ Association. Should
the officer intervene if he or she sees someone driving drunk?

It depends, Gregson said.

Is the driver on a crowded freeway or a desolate country road? Is the
driver speeding? Weaving across traffic lanes? What are the odds the
driver might injure or kill somebody?

“To try to formulate a policy that would cover
every circumstance would probably require something the size of the IRS
code,†Gregson said.

Some police departments, including Oceanside’s, have written policies
governing an officer’s professional obligations when off duty.

If an Oceanside officer is within that city’s limits, he or she should
“take appropriate and reasonable action to protect
life and property, preserve the public peace, prevent crime, and cause
the apprehension of violators of criminal laws,†the
Oceanside manual states.

If the off-duty officer is outside Oceanside, he or she should
“assist any law enforcement officer who appears to be
in the need of immediate assistance and when feasible assist in the
apprehension of any felon.†The officer should also
“take appropriate and reasonable action where there
appears to exist a serious threat to life or property.â€

The policy also states: “If possible, off-duty
police officers shall call and use an on-duty officer for police
matters.â€

Bernard Gonzales, a spokesman for the Chula Vista police department,
said Chula Vista officers are trained to be “good
witnesses†when off duty. As a general rule, they are
supposed to use their law-enforcement powers only when someone poses
“an imminent danger†to the public.

“Then we ask them to involve themselves as sworn
professional law-enforcement agents,†Gonzales said.

Alex Roth: (619) 542-4558; [email protected]
Source: http://www.signonsandiego.com

Football player shot under suspicious circumstances
By Ian Logsdon Retriever Weekly Editorial Staff

Prior to this week I had never heard of Steve Foley, one of the
linebackers for the San Diego Chargers. Prior to this week, that is, when
he was shot twice by an off-duty police officer. Let me amend that, shot
twice by an off-duty police officer in an unmarked car. That is, shot
twice by an off duty police officer in an unmarked car and civilian
clothes. Also the officer was out of his jurisdiction. How, you ask, did
this happen? How did this athlete come near mortal peril? The story is
even funnier than you could imagine. The police officer noticed Foley
driving erratically, weaving in and out of lanes and speeding. So what
did he do? Well, he pulled up next to him at a stop sign and yelled that
he was a cop and that Foley should pull over. I don’t know about you, but
I wouldn’t pull over for some random guy shouting at me about being a
cop. In fact, that is the last thing I would consider doing, especially
if I were a wealthy football player whose face was always on area
television. So what happened next? The officer followed Foley and
eventually Foley got out of his car. The officer presented his gun to
Foley as proof that he was a cop, and Foley reacted by saying, "Thats a
BB gun," then got back in his car. When they got to Foley’s cul de sac,
the officer was apparently boxed into the neighborhood and felt
threatened. Foley got out, and the woman he was with started driving
toward the officer. He fired a warning shot at a bush, then started
shooting at the car. The officer claims Foley reached into his pants and
at that point he fired a round at him. Foley acknowledged he was shot and
kept walking towards him. The second shot put him on the ground. Backup
arrived a minute later.

Now, I know it seems cliche to bring race into the discussion, so that
isn’t where I’m going with it. Of course it is worth noting Foley didn’t
have a gun and most of the story relies on the officer’s depiction of
what happened. The "reaching into his pants" does seem to resemble the
sprinkle-some-crack-on-him-and-frame-him tactics so humorously described
by Dave Chapelle. No, I’m coming at this from the view of a citizen
concerned about government intrusion. Usually there is a rhyme or reason
for the circumstances leading to a police shooting, whether or not it is
justified. In this case, the officer put himself and Foley into an
awkward and dangerous situation where neither could trust the other. If
you don’t have your badge or uniform on you, how exactly can you try and
enforce the law? Without identification, you are a normal citizen and it
is not your place to shoot someone who does not believe your credentials.
Add into this equation the fact that Foley may or may not have been
drinking and you realize that the officer was completely in the wrong.
That being said, I am also disgusted with the behavior of the player, if
in fact he was drunk. He is an athlete, a very gifted one, and his
abilities shouldn’t be put on the line with dangerous stunts like drunk
driving. Add to that the fact that he is a role model to children, and
you really can’t excuse his behavior. This is, of course, if he was drunk
at the time. But what is important to note is that Foley did not deserve
to be shot for drunk driving. If the officer was so concerned he should
have waited for backup, instead of going in John Wayne style. We have no
reason to simply obey police officers when they are out of their
jurisdiction. However, we also have a responsibility to follow the law to
the extent that it is fairly implemented. Things being as they are, I
would like to reflect on one last aspect of this case. How amazingly
tough is Foley? I mean he was drunk and shot and he still kept coming.
Who in their right mind would want to go up against him next time he
plays a football game? Before people respected him, now they better fear
him. Just like Ray Lewis, encounters with the cops make you look
mean.

Ian Logsdon is the Retriever Weekly Opinion Editor and can be reached
for comment at [email protected].

Copyright: The Retriever Weekly Source:

Are you looking for a San Diego DUI Lawyer

Are you in need of a California DUI Lawyer?

The first California DUI laws were established in 1911 long before
the state was crowded with over 20 million automobiles and 19 million
licensed drivers. The first state to adopt anti drinking and driving laws
was New York in 1910.

California followed the following year stating that no "intoxicated"
person shall drive. This word "intoxicated" even to this day has proved
to be a ‘slippery pig’ in determining who is drunk (impaired to the
extent that they were not able to operate an automobile safely) and who
is not.

During the 1980’s, various citizens’ groups, most notably Mothers
Against Drunk Drivers (MADD), mobilized public support around the idea
that existing drunk-driving laws were inadequate and that too often the
drunk driver went unpunished or underpunished. The problem before MADD
wasn’t that peace officers weren’t arresting drunk drivers it was that
they weren’t being properly convicted in the courts.

In 1981 the California legislature responded by adopting comprehensive
changes in the law. It was in the decade of the 80’s the majority of
legislation was made into law. Fifty-five pieces of legislation between
the years 1980 and 1986 passed the California legislature and turned into
law.

These changes reflected two concerns:
(1) prosecution and conviction of those arrested for driving under the
influence and
(2) ensuring that blood alcohol levels (.10) were put on the books to
ease the burden
of proving the driver was under the influence.2 This resulted in
mandatory minimum sentences for all offenders including the requirement
that those convicted of a DUI were required to attended education and
counseling classes.

Are you in need of a California DUI Lawyer?

VC 23152 Alcohol and/or Drugs

The Vehicle Code book codified in 1935 states the
following under its Drinking and Alcohol section.This section (23152) is
the misdemeanor violation.

The difference between a misdeamnor and a felony is: misdemeanor
driving under the influence charges means that the charge involved no
injury or property damage and the penalty is up to 6 months in jail
whereas a felony has injury and the penalty could be as much as up to one
year in a state prison.

VC 23152: Alcohol and or drugs: (a). It is unlawful for any person who
is under the influence of an intoxicating beverage,or under the combined
influence of an alcoholic beverage or drug to drive a vehicle.

Definition:

The problem immediately is what does “under the influence” mean?

The most common understanding of the term is when the person starts to
stumble and fall, lose coordination, have slower reaction times, lose the
ability to process information, experience visual impairments or go
through personality changes.

Standard Dictionary Definition.

Webster defines intoxicated as being ‘elated’, hardly a legal
definition.

A legal definition, from 1970 states under the influence as:

person is under the influence of intoxicating liquor when as a result
of drinking such liquor his physical and mental abilities are impaired so
that he no longer has the ability to drive a vehicle with the caution
characteristic of a sober person of ordinary prudence under the same or
similar circumstances.

The second part of the vehicle code DUI law continues to state in
addition to the above “under the influence” paragraph, a driver is also
under the influence when:
Paragraph (b) of VC23152 states:

VC 23152: Alcohol and or drugs: (b) It is unlawful for any person who
has a .08 percent or more by weight to drive a vehicle.

This more exacting definition of what under the influence is was put
in the vehicle code in 1982 and is considered “per se”. When you are
arrested for DUI and you must submit to a chemical test, the results of
that test can be used as evidence in court. this is called presumptive or
prima facie evidence. Technically, prima facie means “at first view.”
Legally, it means “adequate to establish the fact unless refuted” (proved
wrong).

Illegal “per se” law means that no evidence other than the results of
a properly obtained chemical test are required to convict the defendant.
In other words, if your chemical test results are a .08 (and all else was
legal i.e. stop, arrests etc.) your considered under the influence
according to California law.

Legal presumptions about levels of alcohol in the blood are stated in
presumptions about under the influence are stated in another law VC
23155.

A pair of California Superior Court judges caught in separate
incidents misusing their position in an attempt to escape punishment for
drunk driving will keep their jobs and continue to pass judgment on other
motorists. Sonoma County Judge Elaine M. Rushing and Riverside County
Judge Bernard J. Schwartz were each found to have more than double the
legal limit of alcohol in their bloodstream at the time of their arrest.
A commission comprised of appellate court justices found their fellow
judges’ conduct worthy of only a "public censure" reprimand.

On June 21, 2005, while driving drunk, Judge Elaine M. Rushing hit and
damaged a stone fence belonging to a private home at 5571 Crystal Drive
in Santa Rosa. She continued for two miles before guiding her 2001
Porsche into a ditch on Riebli Road. She had a 0.20 blood alcohol level a
the time.

When California Highway Patrol officers arrived on the scene, Judge
Rushing told them that another woman had been behind the wheel. At other
times she said a man she met at a friend’s house was driving, another
woman was in the passenger seat and she was in the back seat. Her vehicle
had no back seat. The unnamed man, she said, fled up the hill after the
crash, taking the keys with him.

Rushing said she had been drinking "two bottles" of alcohol, which she
then corrected to say, "two glasses." When the police on the scene
suspected that her story did not add up and asked her to take a sobriety
test, Rushing responded, "But I’m a judge, and I told you I wasn’t the
driver." She continued to repeat that the officer should not be arresting
a judge and that her husband, Conrad Rushing, was an appellate court
justice as she was hauled away in handcuffs.

An earlier court sentenced Rushing to a ten-day "work release", a
45-hour alcohol counseling program, a $1890 fine, and three years of
informal probation for her DUI conviction. For misusing her office, the
Commission on Judicial Performance found a "public censure" sufficient.
She keeps her job as a judge.

On July 16, 2005, a Pismo Beach police officer saw Judge Bernard J.
Schwartz, 45, swerving all over the road. When pulled over, Schwartz
said, "Why don’t you run my license and then we can talk?" The officer
asked if Schwartz was trying to say that he was a police officer. "No,
I’m a judge," Schwartz responded.

With the conversation recorded on tape, Schwartz denied being under
the influence of alcohol and asked if he could just go to a hotel and
leave his car. "Is this really necessary, all this stuff we have to go
through?" Judge Schwartz asked.

After the officer determined the judge was drunk and began to arrest
him, Schwartz said, "But you know what this is going to do? This will
substantially impair my career." The officer responded, "If I let you go,
it could impair my career." The judge continued, "I know you guys are
doing your job, but this is not good for me, I’m running for election
next year and this is not a good time."

Judge Schwartz said: "There is no professional courtesy here anymore.
This is [expletive]. You guys come in and appear before me." The officer
responded, "We’re treating you about as fair as we can, same as everybody
else. What you are asking for is special treatment."

Judge Schwartz told the officers that he would lose his job if
convicted of driving under the influence. The Commission disagreed and
let him off with a "public censure." Judge Schwartz had already been
sentenced to three years probation and fined $1,609 for the DUI
conviction. Judge Schwartz at the time had a blood alcohol content of
0.18.

Source: Inquiry Concerning Judges Rushing and Schwartz (California
Commission on Judicial Performance, 6/8/2006)

Are you in need of DUI Lawyers in California?

I’ve just been arrested for DUI in California. What happens now?

The officer is required by law to immediately forward a
copy of the completed notice of suspension or revocation form and any
driver license taken into possession, with a sworn report to the DMV. The
DMV automatically conducts an administrative review that includes an
examination of the officer’s report, the suspension or revocation order,
and any test results. If the suspension or revocation is upheld during
the administrative review, you may request a hearing to contest the
suspension or revocation.

You have the right to request a hearing from the DMV
within 10 days of receipt of the suspension or revocation order. If the
review shows there is no basis for the suspension or revocation, the
action will be set aside. You will be notified by the DMV in writing only
if the suspension or revocation is set aside following the administrative
review.

At the time of my DUI arrest, the officer confiscated my
driver license. How do I get it back?

Your driver license will be returned to you at the end of
the suspension or revocation, provided you pay (on or after January 1,
2003) a $125 reissue fee to the DMV and you file proof of financial
responsibility. The reissue fee remains at $100 if you were under age 21
and were suspended under the Zero Tolerance Law pursuant to Vehicle Code
§23136, 13353.1, 13388, 13392. If it is determined that there is not a basis for the suspension or revocation,
your driver license will be issued or returned to you.

The officer issued me an Order of Suspension and
Temporary License. What am I supposed to do with this document?

You may drive for 30 days from the date the order of
suspension or revocation was issued, provided you have been issued a
California driver license and your driver license is not expired, or your
driving privilege is not suspended or revoked for some other reason.

The Notice of Suspension that the officer gave me at the
time of my arrest states I have ten days to request an administrative
hearing. What is the purpose of this hearing and what can it do for
me?

A hearing is your opportunity to show that the suspension
or revocation is not justified.

For how long will my driving privilege be suspended if I
took the chemical test?

If you are 21 years of age or older, took a blood or
breath test, or (if applicable) a urine test, and the results showed
0.08% BAC or more:

A first offense will result in a 4-month suspension. A
second or subsequent offense within 7 years will result in a 1-year
suspension. If you are under 21 year of age, took a preliminary alcohol
screening (PAS) test or other chemical test and results showed 0.01% BAC
or more, your driving privilege will be suspended for 1 year.

Do I need a hearing to get a restricted license to go to
and from work?

No. A request for a restricted license cannot be
considered at the DMV hearing. You may apply for a restricted license to
drive to and from work at any DMV field office.

The officer stated I refused to take a chemical test.
What does this mean?

You are required by law to submit to a chemical test to
determine the alcohol and/or drug content of your blood. You did not
submit to or complete a blood or breath test after being requested to do
so by a peace officer. As of January 1999, a urine test is no longer
available unless:

The officer suspects you were driving under the influence
of drugs or a combination of drugs and alcohol, or Both the blood or
breath tests are not available, or You are a hemophiliac, or You are
taking anticoagulant medication in conjunction with a heart
condition.

How long will my driving privilege be suspended for not
taking the chemical test?

If you were 21 years of older at the time of arrest and
you refused or failed to complete a blood or breath test, or (if
applicable) a urine test:

• A first offense will result in a 1-year suspension.
• A
  second offense within 7 years will result in a 2-year revocation.
• A
  third or subsequent offense within 7 years will result in a 3-year
  revocation.

If you were under 21 years of age at the time of being
detained or arrested and you refused or failed to complete a PAS test or
other chemical test:

• A first offense will result in a 1-year suspension.
• A
  second offense within 7 years will result in a 2-year revocation.
• A
  third or subsequent offense within 7 years will result in a 3-year
  revocation.

How is the DMV suspension or revocation for the DUI
arrest different from the suspension or revocation following my
conviction in criminal court?

The DMV suspension or revocation is an administrative
action taken against your driving privilege only. The suspension or
revocation following a conviction in court is a mandatory action for
which jail, fine, or other criminal penalty can be imposed.

Source: http://www.dmv.ca.gov/dl/driversafety/dsalcohol.htm

Do you need a California DUI Attorney?

Author: American Beverage Institute Published on Sep 14, 2006,
07:33

In light of the fact that drunk driving deaths in California jumped by
5.5% in 2005, the American Beverage Institute (ABI) is urging state law
enforcement officials to abandon their ineffective roadblock
campaigns.

According to the newly released National Highway Traffic Safety
Administration (NHTSA) data on 2005 alcohol-related fatalities, there
were 76 more people killed in drunk driving fatalities in California last
year than in 2004.

"It is time for California to reevaluate how it is addressing its
drunk driving problem," said ABI Executive Director John Doyle. "Rather
than rely on roadblocks, as California does, the state should invest more
of their law enforcement resources in roving police patrols."

According to a landmark NHTSA study, "the number of DWI arrests made
by the roving patrol program was nearly three times the average number of
DWIs made by the checkpoint programs."

The newly released NHTSA data also reinforce the superiority of roving
patrols over roadblocks:

• The 11 states that do not operate roadblocks experienced a
  collective drop of 91 fewer alcohol-related fatalities in 2005 compared
  to 2004;
• The 39 states (plus the District of Columbia) that operate
  roadblocks saw a collective increase in alcohol-related deaths;
  and
• If non-roadblock states are removed from the equation, there would
  have been a net increase in nationwide alcohol-related fatalities last
  year.

"It is incumbent upon the states to use the most effective measures
available, and clearly the data show that roving patrols are much more
effective than roadblocks at getting drunk drivers off the road," said
Doyle.

The American Beverage Institute is an association of restaurants
committed to the responsible serving of adult beverages. To learn more
visit: http://www.americanbeverageinstitute.com/.

© Copyright 2006 YubaNet.com

Source: http://www.YubaNet.com

Are you in need of California DUI Lawyers?