First, the Sacramento County District Attorney’s Office(DA) moved to standardize the punishment on misdemeanor DUIs several years ago. This was the beginning of the difficulty in resolving marginal blood alcohol level cases in this jurisdiction.
I’m not proposing that people that drive under the influence of alcohol or drugs should be given a free pass but I was born at a time when “the tie goes to the runner.” What I mean by this is, that in marginal alcohol level or in certain prescription medication cases, I believe that there are instances where the penalty should be less than a standard disposition.
In cases that involve second, third, fourth, etc. offenses, it’s much harder to make the same argument.
Since the initial standardization of penalties, there have been several different people running the misdemeanor unit. With those changes have come repeated small, medium and large changes in policy and increases in penalties connected to the DUI cases.
An example is extra time for stale priors. In 2005, the Legislature decided the look back period for a prior DUI should be 10 years instead of 7. In simple terms, the change means if you are convicted of a DUI that took place within 10 years of a prior DUI the punishment will be greater. In short, they added an additional 3 years to the period of time prior DUIs could be used to enhance penalties. Why then, I ask myself, is extra time ordered for stale priors. Didn’t the Legislature take care of this already?
The DA and courts have insisted on specific minimums of actual jail on second and third misdemeanor DUI offense cases for the past several years.
The DA is insisting on extra time for several reasons but it’s so inconsistent it’s difficult to advise clients before court. Something that just changed is the number of extra days for what might be considered high blood alcohol levels. It was previously calculated as one extra day for each point above .25 on a first DUI and one extra day for each point above .15 on a second or third DUI. As of today, the DA is insisting on two extra days on any DUI where the blood alcohol level is .15 or higher.
Since the law gave the court discretion to revoke a person’s license for 10 years on a third DUI, we’ve had to deal with this issue repeatedly.
Somewhere along the line, the DA began asking for bail in certain cases. Now the courts are doing so, in some instances, even without the DA’s requesting that it be imposed. There seems to be little or no benefit to ordering bail on misdemeanor DUI cases three weeks after a person has been arrested and released. It simply forces people unable to post bail to go to jail while they fight their case or to enter a plea. For those fortunate enough to be able to shoulder the added expense, it gives an attorney adequate time to fully investigate the possible defenses. Does this feel to you as though the court and DA are extorting pleas from people unable or unwilling to pay the extra costs associated with bail?
The most recent request the District Attorney is making is a probation condition of Search and Seizure on all DUI cases.
I was ambushed with this October 23rd but declined to enter a plea when the issue surfaced. That same day I walked next door to see how that court was handling this new condition that the DA is pushing. The other judge did not appear to be going along with the DA’s attempt to circumvent a 2013 Ruling by the US Supreme Court, wherein a warrant might be required before forcefully drawing blood in DUI cases where a person refused to consent. The judge that was sitting in the courtroom where my case was heard that afternoon was not the regular judge, so I’m still uncertain how this issue is going to play out there. Today, the DA told me that where the judge is unwilling to go along with the condition they are insisting on a sheet plea.
Now it seems the system has settled on a more narrowly tailored form of search and seizure that allows for forced blood draws for those on DUI probation, without the need of a warrant.
Aside from increased penalties, the DA’s general policy is to withhold certain supplemental discovery if the blood alcohol level is .10 or greater, unless we set a case for trial. This is a policy that went into place when our new DA elect was supervising the unit. How does this make you feel? If you are charged with a DUI wouldn’t you want to examine the evidence against you?
If there is a video of your driving or field sobriety tests, wouldn’t you like to be able to verify that what is written in the reports is in fact accurate?
If the Preliminary Alcohol Screening Device (PAS) results are collected though a manual trap rather than an automatic trap there is a belief by the DA’s Office that that actual numbers are always higher than the reported ones. This in turn is used as an argument against giving a person a break on sentencing in marginal alcohol cases. I have even been denied PAS records because, in an e-mail from the DA, it said I would argue which ever way would benefit my client. Isn’t my job to get reports and any other available records the DA would use at trial and tell my client’s story in the most favorable light? Doing my job certainly doesn’t seem like a good reason to deny us the ability to scrutinize the records.
In a system where the accused is presumed innocent, doesn’t it seem contrary that the Defendant is the one that has to prove that fact.
A tough on crime stance is good politically and generates money in the form of grants but it is also contrary to people’s rights when the DA crosses the line. The constant battle is where to draw the line. Without an attorney, you simply don’t stand a chance in this system. Give the Law Office of Denis White a call to discuss your case before it’s too late. (916) 444-3300