San Jose Criminal Defense Lawyer Blog

About two weeks ago the Santa Clara County District Attorney's Office announced that hundreds of DUI cases were being reviewed because of a faulty breath-test machine, the Alco-Sensor V. Now halfway through its investigation the District Attorney revealed only 42 cases or 5% of the cases being reviewed are problematic. Over 600 cases have been reviewed and only one actually dismissed. The defect with the machine is that condensation builds up and elevates the reading when a person blows into it.

In Santa Clara County, arrestees are usually asked to give a blood or urine sample, which is used to gain a conviction. Field sobriety tests are also used both as probable cause to make the arrest and also for a conviction.

Unfortunately, many of the cases being reviewed have already been resolved with a conviction. In San Jose and all Santa Clara County, a conviction for a first-time DUI typically costs the defendant nearly $2,000 in fines, six month license suspension, a 3-9 month alcohol treatment program, and 48 hours of jail (which usually translates into six days on the Sheriff's Work Program).

In a 5-4 decision the United States Supreme Court upheld a three judge panel in California that ordered the release of 38,000 to 46,000 state inmates. The opinion, penned by Justice Kennedy, declared that the state of the California prisons violates the Eighth Amendment to the United States Constitution. The California Department of Corrections (DOC) reported that the state penitentiaries are over-flowing capacity by 32,000 inmates. (Also see Los Angeles Times article dated May 23, 2011.)

Kennedy wrote that because of the over-crowded conditions in the state prisons, "prisoners may be deprived of rights that are fundamental to liberty." See Brown v. Plata (2011) 2011 U.S. Lexis 4012. Kennedy went on to say:

"Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. The basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

A majority of the court concluded that there was clear and convincing evidence that the overcrowding is affecting the health and welfare of the prison population, in violation of Federal rights. The court further upheld the lower three judge panel's determination that the exploding prison population now deprives inmates of basic sustenance and medical care.

This is a surprising opinion from the high court as it has routinely denied the release of individual prisoners in the past and has overruled lower courts allowing such releases.
It is also unclear exactly how many inmates will be released. The court differed to the three judge panel to work out the details of the prisoner release.

Continue reading "California to Release Thousands of Prisoners" »

In the wake of the news that hundreds of DUI cases are under review in San Jose, Palo Alto has announced a similar situation, the Mercury reports. At issue is the newest of the preliminary alcohol screening devices (PAS0, the Alco-Sensor V. Palo Alto Police began noticing problems with the device back in December of 2010, returning 10 devices to the manufacturer. Palo Alto has been using the device since April of 2010.

Wired.com reports that the problem with the Alco-Sensor V is that the condensation from one person's breath would "stick" onto the inner tube of the device. The next person to blow into the PAS device would mix his or her breath with the already existing condensation, giving a higher blood alcohol equivalent reading.

The Santa Clara County District Attorney announced last week that more than 800 DUI cases were being reviewed because of the faulty PAS machine. The Mercury reports that San Jose Police have been using the Alco-Sensor V since November of 2010, but stopped when breath results were deemed unreliable. They have gone back to using the Alco-Sensor's V's predecessor, the Alco-Sensor IV.

When there is a suspicion of drunk driving a motorist is asked to complete a series of field sobriety tests or FSTs. These include finger dexterity, leg raise, line walk, counting to 30 seconds (the Rhomberg test) and two blows into the PAS device.

Santa Clara's review is due in a month's time.

Continue reading "PALO ALTO POLICE TO REVIEW 135 DUI CASES" »