Friday, July 4, 2014

Why I Would Not Take Field Sobriety Tests

Most all of the California Highway Patrol cars have a video and audio recording systems in them. These systems are referred to as the Mobile Video Audio Recording System (MVARS).   These units start recording when the officer turns on the emergency lights of the patrol car, and capture one (1) minute prior to activation.  The units can also be activated by the officer by a unit on their person if they desire before the emergency lights are turned on.  Additionally, these units capture audio inside the car and from the officer unless the officers turns it off.  When they first got these units, the officers almost always used them to record a suspected drunk driver doing the Field Sobriety Tests (FSTs).  However, after lawyers started bringing these videos into court, a great many of the MVARS somehow started breaking down.  In fact, it got so bad that the Commissioner of the Highway Patrol put our an order that no one better get caught not taking care of this expensive equipment that we, the Citizens of California, are paying a lot of money for.  After this notice, there were fewer units that did not work.  However, where the officer use to put the suspect in a position to record the FSTs, they now, in most cases, move the suspect to the side of their car, claiming that the person would be in too much danger if in front of their car, and the FSTs are no longer being recorded.  So, why don't the officers put the person along side of their own car, move their car and position the MVARS to record the suspect doing the FSTs instead of having the suspect do them along side of the patrol car?  Because they don't want have to explain why the suspect does so well on the FSTs in most cases.  Now, it is just your word against the officers word, while they have the ability to record the evidence.  Don't forget, many other agencies have these units also; not all of them, but many.  Based on the fact that the police have the ability to record them, and don't, I would not take the chance on the officer's ability to evaluate the FSTs correctly without me having the ability to challenge them.  If I am not being recorded, and you really never know if you are or are not, I just would not take the FSTs, and I would make sure to tell the officer the following:  First, Officer, I am not going to take the FSTs because I want an OBJECTIVE TEST, and not a SUBJECTIVE TEST.  Second, if you are not recording my FSTs, I am not doing them, and I want to see the video in your car, and see that it is working.  Because I don't believe you are recording my FSTs and because they are not OBJECTIVE, will not take them.  In fact, the only test that I will take, and demand to take is a "BLOOD TEST".  Now, keep in mind you will be going to jail if you follow this advice, but you are probably going anyway, and now you only have one test to deal with in your defense.

Wednesday, April 30, 2014


This is an interesting business.  I always try to do my best and more for every client.  All I handle are Driving Under the Influence (DUI) cases.  Some days I am sick because good people get bashed and there is nothing I can do except take them to trial.  That is not always an option because not everyone can afford a trial; the cost of experts alone is staggering, and the best case is only a 50/50 chance because you never know who will be sitting on the jury and what hidden agenda that person may have.  Still we go to trial.  We lose and we Win.  For the most part we negotiate, this is called plea bargaining, and get the best deals possible.  There are times that the District Attorneys want to give more but are stopped by internal department possible.
  I just learned a lesson with plea bargains.  I had a client with a blood case that was .10.  Now on a breath case, the DA may reduce this case to a Wet Reckless.  Breath could be off by .02, so the .10 could be a .12 or .08.  The .08 is still illegal, but is reducible.  However, with blood, blood is the gold standard, so the DA does not like to reduce a blood case.  It happens, but they don't like it.  In a recent case, my client had that .10 blood.  I tried to get the DA to reduce the case, and was turned down twice.  I asked again because my client's job was at stake.  The best I could get was a reduction to a Wet Reckless.  I asked again to reduce to a Dry Reckless, and that was out of the question.  I tried to explain this to my client, but she could only see that her career was about to be ended.  It is improper for the DA to talk to your client while represented by an attorney.  While we did not waive all privileges, I talked the DA into speaking directly with my client for a few minutes.  They don't like to this, but the DA did.  And, the client was fantastic.  The heart felt terror of losing not just her job but a career was felt by the DA.  The client let the DA know she was wrong, but asked that the punishment not be so harsh.  She was a very well educated women who spoke well, and taught me a lesson.  Never stop trying.  This is not manner of defense that I would do in every case, but this was the case for it.  She helped me get her the a DRY RECKLESS, no alcohol charge with a very high penalty, more than the DUI would have been, but it saved her job.  And speaking of jobs, she did a great job.  The lesson, never give up until it is over.

Sunday, March 23, 2014

A Blood Case Can Be Reduced Before Trial

  Over one (1) year ago, this client came to me after having been arrested for Driving Under the Influence (DUI) in Oakland, California.  The client did everything she was told by the police including, answering all questions, taking field sobriety tests (FSTs), and they were all mistakes innocent people do everyday when stopped.  You should never answer any direct questions, such as where are you come from?  Where are you?  Where are you going? When did you eat last?  What did you eat?  What time did you start drinking?  Where were you drinking?  What were you drinking?  How many drinks did you have?  When did you stop drinking?.  
  In any case, as with most honest people, this client answered all those questions.  Next, the client did the FSTs; you should never do them, just demand a blood test and say nothing more.  NEVER, NEVER, NEVER take the Preliminary Alcohol Screening (PAS) test, breath test in the street, NEVER.  Exceptions, if you are under 21, you must take it, or if you are on probation for DUI or related charges, you must take it.  Other than that, don't do it.  Just demand a "Blood" test, and shut up.
  In this case, we did a motion to suppress evidence as not legally obtained.  We lost the motion.  We appealed the motion, and the motion was reversed at the Alameda County Superior Court's Appellate Division.  Then, the case was moved to the First District Court of Appeals, State Court, where it was reversed, and sent back for trial.  Knowing there were problems with the blood from the original Motion to Suppress hearing, the District Attorney, offered a Wet Reckless on a 0.11 blood test.  My client saved a lot of money in fines, does not have to put Ignition Interlock Device (IID) on the car, and gets NO JAIL TIME OR PICKING UP TRASH, NOTHING, and only two (2) years of Court Probation; not supervised.
  New issues have arise in Blood cases, so you should do what this person should have done, and your case could be dismissed in Oakland, California when the law is not followed and a good DUI Attorney fights for your Constitutional Rights, as did,
  That is your tip for the day.  Donald Gray Drewry, Attorney-at-Law

Wednesday, March 19, 2014

Felony to Misdemeanor DUI

  It happens to people everyday; they drink, drive, and then there is an accident they never thought would happen, and someone is injured other than the driver.  They arrested, and under California Vehicle Code S23153 they are charged with a FELONY.  Now, they are facing State Prison starting at 16 months and up to 3 years.  It is terrifying.  They reach out for help, and all too often, the attorney they get is a friend of the family, a family lawyer who will do the criminal case as a favor to the family, for a fee, but not the attorney's area of practice.
  In Hayward, California the District Attorney is protecting the public by charging the felony.  And, that is what they should be doing.  But, it is up to the DUI Attorney to investigate, get all of the discovery, and find the evidence for an acquittal or a lessor included offense where possible.  It does not always happen that way, but with good understanding of the DUI laws, and what and how to evaluate DUI evidence, the experienced DUI attorney/lawyer can make a difference.
  Today, and case charged as a felony was reduced to a misdemeanor at the Hayward Courthouse on Amador Street.  The case consisted of a traveling on I-880 when the driver lost control of the vehicle.  The car rolled over, and a passenger fractured his head.  The doctor at the hospital, called it a minor injury after scans.  With other evidence, we were able to have the case reduced to a Misdemeanor.  There was 30 days of county jail through the Sheriff's Work Alternative Program (SWAP), with credit of 8 days, so 22 days of picking up trash.
  This is just one case where an experienced DUI attorney made a difference.  This is the reason when you are arrested for DUI, misdemeanor or felony in the Alameda County Bay Area, you should immediately look to for a free consultation.  This client did, and in this case at the Hayward Courthouse today, there was a very happy lawyer, and an extremely happy client.

Sunday, March 16, 2014

California Citizens Denied Fair Trial of Breath Tests

  The California Supreme Court is denying the Citizens of California a fair trial if they take a breath test.  In a case named People v. Vangelder, the California Supreme Court ruled that because the California Legislature has determined that if a specific breath testing machine is on the Federal Conforming Products List, then the breath machine must have been checked and approved for all interference's that could appear to be ethanol alcohol.  This is NOT TRUE.  There has never been a scientific test that would show the 100,000 Volatile Organic Compounds that read as alcohol, and just saying so does not make it so.
 The California Supreme Court further said in Vangelder that the only challenges that a defendant could make on the breath testing machine are limited to three.  1. If the operator is qualified.  2.  If the operator performed the test correctly.  3. If there was an error with the machine itself.   Well, think about that.  If one of the 100,000 VOCs interfered with your breath, and they read the same as alcohol, and the machine is not equipped to know the difference, then you get convicted because you are not allowed to present evidence that the State cannot prove the difference of something in your system other than alcohol that reads as alcohol and is mixed with alcohol now giving you a higher reading.  This is one of the poorest decisions the California Supreme Court has made in the past few years in attempting to force defendants that have been alleged with a charge of Driving Under the Influence (DUI) to plead guilty without the benefit of a fair and impartial trial as guaranteed under the United States Constitution.  The California Supreme Court completely ignored that fact in rendering its decision.  In fact, in a United States Supreme Court case, Washington v. Texas 388 U.S.  14, the United States Supreme Court said:  The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury, so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.
  Your Constitutional rights have been striped of you by the California Supreme Court.  Despite that in my cases in Oakland, California, I continue to challenge the ruling by preparing for appeals to the United States Supreme Court for my clients.  Get more information about me at

Friday, November 29, 2013

Treat the District Attorney with Respect to Negotiate a Great Result for Your Client

  There is a time to fight, and a time to negotiate.  Sometimes, you have nowhere to  go, and all of the evidence is stacked against your client.  If you have a reputation of being acrimonious, your chance of getting a good plea bargain for your client is on the down side.  That is why it is important to remind the District Attorney, that what you are doing is being done to protect your client and make a decision of whether or not you will be going to trial.  District Attorneys are not subject to "Malpractice Suit" as are private counsel.  So, you should be polite even if it seems that the DA is treating you like garbage.  You prepare your case for trial in case that is where you have to go after all negotiations break down.
  If you keep a good relationship with the District Attorney, that is a professional relationship, you can get the discovery that you need for trial, and keep the options open for an equitable disposition.  Recently, just in the last week, I had a client in Oakland, California, that was facing a charge of a 3rd offense DUI charge.  Given the manner of his arrest, that fact that he had Type 1 Diabetes where he takes insulin, this changes the chemistry of his body causing Isopropanol alcohol to form in his body when it reaches approximately 200 to 250 glucose readings.  In fact, the nurse on duty at the Glenn Dyer Jail at Oakland, California found his glucose reading to be 470.  There is a policy of at this jail if the person is 300 or above, they cannot be admitted into the jail until they have been taken to the hospital, treated, and moved out of "Stoke Zone", for this diabetic emergency.
  For months, the company that handles the nurses for the jails ran us around not giving us these results.  We had to get a special Court Order and go back over and over and over until we finally got the records they said did not exist.  This became a very acrimonious process.  The case was set for trial, and it finally went out to trial.  The judge eventually tried to settle the case, and both myself and the District Attorney put the hard times in getting the information we needed aside, and in a very professional manner, and with the help of the judge, we each spoke to each other professionally, and the case, while in trial, was reduced to a Wet Reckless; something usually given on a low alcohol level on a 1st or 2nd DUI within 10 years, but rarely on a 3rd DUI charge anymore.  Good relationships can help your clients, so remember that the District Attorney is a person with a job to do, but they can be of great assistance on tough issues when you treat them with the respect they deserve.

Sunday, November 3, 2013

Innocent Person Under 21 Wins His Case in Oakland, CA

Good news for one of my clients charged with Under 21 DUI.  We won his case!!!!  He was charged with DUI low levels of alcohol, but under 21 so zero tolerance.  However, he needs to be .05% in the quasi criminal case as the officer cited him to the Traffic Court at Oakland, California in the County of Alameda.  He hired an excellent toxicologist who prepared a great case for so many errors in this test it was not funny.  But, just like the poor testing by the officer, the win was again really the officer's gift.  I always arrive early for trial, as did my expert, and my client.  The trial was set for 2:00p.m. at the Wiley Manuel Courthouse 661 Washington Street, Department 102, 1st Floor, Oakland, California.  We all arrived at 1:00 p.m..  The doors did not open until 2:10p.m., roll was called, and everyone checked in.  Another 5 minutes went by, so now it was about 2:25 p.m. with several cases waiting for trial.  We were called first.  I appeared.  My client appeared, but there was no officer.  Case Dismissed.  I waited for a print out of the Minute Order.  Ten minutes later the officer arrived, just 35 minutes late.  My client had left, and I would have been gone too except I wanted the Court's Order.  The officer was running around trying to get the case recalled because he was late.  You cannot do that.  Bad work on this case in the street, and the same attitude for court.
  Police Officers get extra money to go to court.  Sadly, the People of the State of California will have to pay for this officer's sloppy work ethic.  If it had been the client not present, they issue a bench warrant.  Yet, the officer still gets paid.
  Good news is that we won.  We would have won on the merit anyway, but we won, and that is the important part of this case.  An innocent person received justice.