Oscar Grant Trial and Change of Venue

Protest of Oscar Grant at Oakland, California can cause a change of venue. While most people are outraged at the shooting of Mr. Grant by the BART Police, they may actually be hurting themselves in seeking justice by the riots and now heavy protesting during the Preliminary Hearings that have just occurred. The demonstrations are so strong to convict the Officer who shot Mr. Grant of Murder that anyone who would be a potential juror would be intimidated for fear of reprisal not to convict the Officer.
The best policy for those who are seeking justice, is to allow the District Attorney to follow the procedures and present their case at trial without disruption. So much protesting has been going on, not to mention those riots, that the defense will most certainly move for a change of venue arguing, correctly, with so much outrage in the daily review of this case by the local citizens that the Officer could never get an impartial jury in Alameda County. That is not good for the local citizens who are actually, unintentionally, helping the defense in their quest to move the case to a venue far from Alameda County. This is similar to the bog bite deaths in San Francisco that had to be moved to Los Angeles for trial several years ago.
The change of venue not only deprives the local citizens who wish to attend and watch the trial for assurance that all the evidence is presented that opportunity, but it also taxes all of the citizens with the cost of the change of venue to a different location which Alameda County residents are responsible for to the new venue.
Justice has a way of prevailing when we take a breath, step back, and not try to individually interfere with the legal process to and undue advantage in the court proceedings. All of the protests cause the local press to give so much coverage that it would be almost impossible to find jurors that have not already been influenced by the coverage caused by the protests. I hope the trial remains here in Alameda County, but the protests tend to be chasing it away.
Donald Gray Drewry, Oakland Criminal Defense Lawyer

Never Trust CHP Reports

You just can't trust the Government. The Government has all the power because they have the money, and we have been taught that the police are here to help us. Sadly, this just is not always true. Recently, I went into trial where the arresting officer had died. Yet, the Government decided to proceed the charges of Driving Under the Influence by bringing in five (5) other police officers. Here is the interesting part.
In a DUI case, in California, there are two (2) parts. One is civil; that is the DMV hearing. The second part is the criminal charge or charges. When my client was charged we immediately requested the DMV hearing which must be done within ten (10) days. We received copies of the police report and what is known as a DS-367 form under penalty of perjury stating the reason for the stop. Due to an illness, GERD, a disease that interferes with breath testing giving extremely high false positive results, my client with medical records and testimony of a medical doctor, my cleint won the DMV hearing.
A few months later, the District Attorney of Contra Costa County, California filed the criminal charges. We again received the police reports. The reports were exactly the same as those in the DMV hearing, as they should have been. A month or so after the criminal charges were filed, the arresting officer of my client, unfortunately, was killed in a car accident. There needs to be someone to testify as to the reason for the stop to meet 4th Amendment Constitutional grounds to proceed. As the officer was dead and there was nothing in either of his reports about any other officer being present, I was duty bound to file a motion to suppress evidence as there was no one to testify. The day before the hearing, the District Attorney's office supplied us with what appeared to be a supplemental report from another CHP officer dated the same day of the arrest of August 18, 2007. It appeared to have been lost or at least separated from the original report, however, there was no mention of this officer or of his specific observations, and there should have been.
This case went to trial. During the cross-examination of the police officer who wrote the supplemental report, Officer Borgen, he testified that he had been off duty in his personal vehicle on his way to work when he spotted my client allegedly weaving and speeding, so he called, not dispatch, but the arresting officer directly cell phone to cell phone, and my client just happened to exit where the arresting officer was located; still there was nothing in the arresting officer's report about this. Additionally, during the trial, Officer Borgen testified that some had asked him to write the supplemental report, it had never been cleared with a sergeant, and without notes he recalled the events, and wrote the report in February 2008 six (6) months later even though the report is dated August 18, 2007.
The District Attorney was aware of this. Other police officers were aware of this. Officer Borgen was aware of this, and yet the report is deemed official and trustworthy??? When asked why it was improperly dated, Officer Borgen stated that the computer automatically puts the date in, and he could not correct it. When asked why he couldn't white it out and write in the correct date to allow the reader to know of this inaccuracy and properly investigate, he just sat there. The report is falsified and the CHP and the DA think that it is alright to present this evidence to the defense without explanation as if it were done at the time of the event!!!! And, the CHP computers cannot allow the officers to properly write the date they wrote the report???
This deceitful and false report writing causes all persons arrested by the California Highway Patrol a great need to investigate every aspect of every report, and of course, the CHP will not cooperate. This is criminal. The notes collected and written at the scene are always thrown away, and there is no audio or video tape of the incident which leaves the citizen at the total mercy of the arresting officer in court.
This is the reason you need an attorney and have to fight the Government. Too many innocent people are charged and reports fabricated. This one was discovered, but who will do anything about it??? No One. Never Trust CHP Reports

Preliminary Alcohol Screening (PAS) Tests

A new law goes into effect January 1, 2009 in California. Vehicle Code Section 23154. If you are under 21, you are required to take a Preliminary Alcohol Screening (PAS) test if stopped by the police and they believe that you have been drinking and you are driving. This is optional for people over the age of 21, and in fact, the law requires the police officer tell you that you have the absolute right to refuse this test; they rarely ever tell anyone that, but they will say they did when they get into court. Under the new code, if you are on probation for Driving Under the Influence (DUI), you must take the PAS test or it will be considered a refusal, and your license can be suspended for an additional year. If you blow into the machine, and it registers 0.01% or greater, you will lose your license for one (1) year.
The problem with these machines is that they also detect other substances as alcohol, they are not maintained by a laboratory, generally not maintained according to law, and your driving privilege depends on this piece of junk. I have one in my office and have my clients blow into it and show them how other things, such as white bread or soy sauce, can give readings as if it were alcohol. Next week, I will be doing a video for Youtube showing exactly this.
If you are on probation in California in January of 2009 for DUI, don't refuse the PAS if requested to take, but get a lawyer and fight it. Your Constiutional Rights are being erroded faster than you can imagine, and the only way to protect our Government is to fight the Government's erroneous evidence.

CA Bay Area Labor Day DUI Arrests Down

It is September 1, 2008, and the news reports show that one (1) person has been killed with alcohol related driving. This is the same as last year. Over-all, however, police have arrested fewer people for Driving Uner the Influence (DUI) this year as opposed to last year. This year, so far, there have been 209 people arrested for being allegedly DUI. Last year at this time the police had arrested 246 people. You think think the high oil prices had something to do with people not driving this much this year?
However, the weekend dragnet is still out there, so if you drink and drive, make sure you read the tips section of my webstie at www.number1duioffice.com and protect your Constitutional rights. You might upset MADD, but then they have an over-tone of Communism, so who cares. After all, this is America.

DMV Withholds Evidence

The DMV hearing process is not exactly known for being a fair and impartial process. In fact, the Hearing Officer is also the Prosecutor trying to take you driving privilege, and then is suppose to be a fair and impartial judge; sure!!!! Nowhere in civil law does the Judge act as a Prosecutor. Nowhere in any civil case is hearsay allowed. Nowhere in California is a non-lawyer allowed to make rulings of law. Nowhere, except the DMV hearings.
If you think that you will receive a fair hearing, you are really mistaken. You are entitled to all evidence to be used against you, but you have to ask for it. Recently, a hearing was held in Oakland, time ran out, and the hearing was continued to another date. I requested a copy of the CD, as these cases are recorded for appeal, and the Hearing Officer refused to give me a copy. The reason she stated was that she did not feel comfortable giving me a copy of the evidence that was just taken in front of me until the case had concluded. No reason in "LAW"; she just didn't feel comfortable. Now, she has the CD and can listen to it to question my client when we return, but we cannot have a copy to get evidence to contridict the Police Officer's testimony. Please!!! Where is the equity here?
By going to her supervisor, I was able to get a copy of the CD. But, there is no reason that this evidence should have been withheld depriving the client of a fair hearing. This is what you have to look forward to if you are arrested for a DUI.
This is the Labor Day Weekend, and there will be many of you stopped and arrested and charged with Driving Under the Influence, get a lawyer that specializes in DUI cases, and do it right away. Your Constitutional Rights have already been taken away from, so you better get ready to fight.

Labor Day Alert

The police have already begun using funds for roadblocks, check point stops, for the Labor Day Weekend and it is only August 29, 2008. Remember, the best rule is don't drink and drive; have a designated driver. Have your license, registration and proof of current insurance already out and ready for the officer if you run into one of these check points.
The Officer may ask you where you are coming from. If you have had nothing to drink, answer all questions and do all the field sobriety tests, but if you have been drinking, NEVER, NEVER, NEVER LIE to the officer; just don't answer any questions or do FSTs. Will you go to jail? Probably, but then you are probably going anyway, so don't answer any questions, just say I have nothing to say, but I will take a chemical test, and I choose a blood test.
And, don't fall for the roadside breath test; just say no, I will only take a blood test. Say nothing, don't lie about drinking, take the blood test, and call a DUI lawyer immediately upon release from jail. Don't forget, you only have 10 days from the date of your arrest to request a DMV hearing or you will lose your driving privilege.
You don't have to follow this advice, but this is what I would do if I were you, and I am a DUI lawyer in California. Have a safe and happy Labor Day.

Flawed Field Sobriety Tests Don't Take Them

January 14, 2007 If you are stopped for a DUI investigation, and you are in California, "Don't answer a bunch of questions about where you were coming from and where you are going. Don't answer questions about when you slept last and how long you slept, when you ate last and what you ate, what time you started drinking, stopped drinking, where you were drinking, what you were drinking and how much you had to drink. This is a ploy by the police officer to get information to turn over to the District Attorney's expert to try and show that you are intoxicated at the time of driving. You were being stopped for possession of drugs or burglary, or theft, or any other crime, the police would be required to read you your rights to remain silent and the right to an attorney. However, in a DUI stop, the courts have told the police for public safety, that the police can ask preliminary field sobriety test questions, so the clever District Attorneys have to told the police to include these questions into the field sobriety test questions. They have nothing to do with the field sobriety tests, but once you answer them, they get used against you. If it were me, I would give the police officer my license, registration, and proof of insurance, and I would have it out and ready for the officer when the officer approaches the car and asks for them. If the police asked if I know what the speed limit is, I would just say Officer, if you are suggesting that I was speeding I disagree but I will sign the citation, and say nothing more. If the Officer asks if you have been drinking, DON'T , DON'T, DON'T LIE; just don't answer the question. Answer the question with a question, such as, why do you ask Officer? If the Officer then tells you to get out of the car, do it, but as you get out of the car don't lean against the car or the Officer will say that you had to hold yourself up. When you get to the side of the road, and the Officer starts asking you the pre-field sobriety test questions, just stop and tell the Officer, politely, always politely, Officer I have nothing to say, and I have been advise never to take any subjective tests such as field sobriety tests, but if you think I am drunk, then I demand to take a chemical test, and only the chemical test. Personally, I would take the breath test, but you may wish to take the blood test, but don't again don't take both. If the Officer gets rude or tough with you because you won't take the field sobriety tests, just say, alright Officer, I tell you what I will do, you show me the penal code or vehicle code section that requires me to do these tests, and I will do them. I think you should have told me that I didn't have an obligation to do them, and I again demand to take a chemical test. Now, be assured that if you follow this information, you will go to jail, but chances are you are going anyway, and if you do the field sobriety tests, it will be your word against the Officers as to how you did on them. This is what I would do if it were me, but you do what you feel comfortable with. Remember, the police officers don't always administer or interpret the field sobriety tests correctly, but if you take them, you will have the burden of trying to prove that; and that is tough, not impossible, but tough. Again, this is what I would do. I hope this information is helpful to you.