As the summer reaches its peak, many drivers are utilizing any available means to stay cool and out of the sun. One of the most common efforts in doing so involves window tinting. Window tinting is utilized for various different reasons, for example: added privacy, prevent damage to the interior of the vehicle, or—as tinting film can reflect incoming light and therefore reduce the glare and heat inside the car—to keep cool.  Although many Californians have their windows tinted, window tinting has always been heavily regulated by law enforcement and can be used a means for initiating a traffic stop. In fact, in 2015, the California Highway Patrol reported a total of nearly 2000,000 tickets issued to drivers for violating California window tint law between January 2015 and August 2017!

Vehicle Code §26708 generally prohibits drivers from placing any material that may reduce or obstruct their view through the windshield. (Ironically, it seems Californians are constantly encouraged to do the complete opposite. Parking permits are a great example. Whether instructed to be placed on the windshield or hung on the rear-view mirror, based on the language of the law, doing so could be construed as a violation.) Also, other regulations address the darkness and location of the tint. For example, despite there being no current limitations on the darkness of rear windows, the front side windows must allow more than 70% of light to pass through into the inside the car, and a car can only have non-reflective tint on the top four inches of the windshield.[1]  

Through the passage of AB  1303, California created a small but important exemption to the window shield tint and object placement prohibition; Californians who obtain a signed certificate by a dermatologist indicating the driver has a sensitivity to UV rays[2]can now tint their windshields. It is important to keep in mind, however, that those utilizing this exemption can still expect to have interactions with law enforcement stemming from their use of tint as officers can still use a perceived violation of the tinting laws as probable cause to initiate a traffic stop.  …And once an officer has probable cause to pull you over, his observations while conducting that routine traffic stop are all fair game.
 
So if you are one of the drivers for whom window tint is medically recommended, by all means take advantage of the new exemption created by AB 1303. But remember, this could potentially result in an increased likelihood of interactions with law enforcement so make sure your other documentation such as license, insurance, and registration are all up to date!
 ___________
[1]Also of note, (1) a driver is required to have dual side mirrors if the rear window of the car is tinted, and (2) a driver cannot use red, amber or blue tint on any window.
[2]For example if the driver has either Lupus or xeroderma pigmentosum

​The California legislature continues its pursuit towards safer roads and its never-ending battle against driving under the influence. Ride-sharing companies such as Uber and Lyft once seen as a tool to combat drunk driving, have lessened the frequency of such criminality, but the cost of a ride can still serve as a disincentive for drinkers to request a ride-share.
 
Prior to the passage of AB 711 this year, alcohol manufacturers were limited to whom they could offer discounted rides(event invite-only guests). However, California sought to change this. AB 711 seems like a win-win proposition that benefits both the manufacturers and the public. Manufacturers can use these rides as marketing tools while the drinking public benefits from free rides and the general public can rest assured that there are potentially less drunk drivers on the road. Manufacturers can now offer discounted–or even free–rides, which many of us would prefer over the typical fare the manufacturers usually try to bribe us with: koozie or bottle openers. From the potential rider’s consumer point, perhaps the best part about AB 711 is that these free or discounted rides cannot be conditioned on the purchase of the manufacturer’s goods.
 
Surprisingly, it took six yearsafter the introduction of companies like Uber and Lyft to the general public for this law to be implemented, allowing California to join the vast majority of states in which this type of “advertising under guise of drunk driving prevention” is legal. So why did it take CA so long to implement AB 711? After all, AB 711 on its face seems like a great idea, eliminating those high costs of the ride that can sometimes discourage a person from requesting a Lyft or Uber, andallowing businesses to advertise through the offering of discounted or complimentary rides. Perhaps the delay in enacting such a law was the result of the many critics who opposes bills such as this one. One critic, Reverend James Butler. the executive director of the California Council on Alcohol Problems, was public in his criticism, positing that “[i]f they get free transportation, maybe instead of two beers they have six.” Further, it’s feared by critics that free transportation incentivizes people to drink morethan they would normally drink. Alcohol Justice, a San Rafael-based nonprofit, opposed the bill as they believe it would promote the “overconsumption of alcohol” and “[i]f AB 711 is passed and signed into law it will negatively impact public health and safety and increase the potential of alcohol-related problems,” such as potentially increasing the occurrence of other offenses that typically involve alcohol such as fights, being drunk in public, incidents of domestic violence, or resisting arrest. 
 
So next time you are out in the town, check to see if the establishment you are in offers the services AB 711 seeks to provide, but if they don’t, make sure to request a ride from a sober driver, or one of the various ride services out there such as Uber, Lyft, or taxis. Remember that although that $20 ride may seem expensive at the time, it is nothing compared to the cost of litigating a DUI charge.

So many times my clients ask me if having a friend, family or community member write a letter on their behalf will help their case.  Sometimes it will, sometimes it won't.  ...But in those cases where a defendant could really benefit from having the DA (while we're in plea bargain negotiations,) or the judge get a glimpse into who "they really are," there are a few things the writer can do to ensure that their letter of support is as effective as possible. 

First, understand why the letter matters. Your defense attorney is hoping to use the reference letter demonstrate that their client is a respectful person who leads a full life outside the criminal justice system. The purpose of this letter is NOT to argue that the defendant is innocent. ​

•  EXAMPLE: ​I know Alyssa has pled guilty to being drunk in public. I am writing to offer a glimpse of who she is, and that is someone who is far more than the offense she pled to. 

Second, give the reader a reason to believe that the writer actually does know the defendant is a person worthy of leniency. To do this, the writer needs to explain how he or she knows the defendant, including the context and length of their relationship, and that the writer knows the extent of the legal woes the defendant is facing. 

• EXAMPLE: I have known Alyssa for 22 years, and we met when we were freshman in our college dorm. She and her lawyers have explained to me that she faces up to a year in jail, however I hope to show you she is deserving of a much lower sentence. 

Third, don't just tell the reader that the defendant really is a good person, show them.  Give specific examples of things the defendant has done that prove to you that the defendant is a worthy person. tell a story.

• EXAMPLE: Shortly after we moved into the dorms at Cal Poly, Alyssa told me that she had noticed that one of our dormmates, Nancy, never seemed to have anyone to eat with in the dining hall.  Although we had met this girl in the weeks before and at that time Nancy hadn't stood out as a person who we would really be friends with (she was too introverted and bookish,) Alyssa urged me to reach out to Nancy, and asked me if it would be okay if we invited Nancy to eat with us the next day. Nancy was hesitant to accept at first, but Alyssa kept asking Nancy questions to try to get her to open up to us. Alyssa also told Nancy about her own personal struggles at making friends and adoption to college life, hoping to make Nancy feel more comfortable.  We learned so much about Nancy that day she soon became one of our best friends. 

Fourth, provide a way for the reader to reach out to the writer, if need be.  Although the reader will seldom ever follow up, by providing a full name, and phone number or email address, the writer is not only demonstrating that their commitment to the defendant goes beyond writing a quick letter, it also sends the message that the writer is who they say they are. 

Fifth, in almost all cases, keep the letter to less than one page.  Judges and DA's are busy people and they may not take the time to read or really consider the contents of a longer letter.  Further, by keeping the letter short, it will help the writer keep their focus concise. 

Sixth, close the letter by thanking the reader for their time. 

The following story was cut and pasted from Attorney John T. Floyd's website:

"On the first day of the trial, Judge Gallagher asked [Defendant Terry Lee] Morris to enter a plea, but Morris wanted to make a defense first. Gallagher warned Morris that he would be removed or shocked if he didn’t comply. 
When Morris continued to ignore the warning, Gallagher ordered the bailiff to shock him. After the first shock, Morris said he had a history of mental disorders when Gallagher asked if he would cooperate with the proceedings. The judge then ordered ta second shock.
​After the second shock, Morris said he was being tortured. Judge Gallagher responded to this charge by ordering a third shock. At that point, Morris was taken from the courtroom. A conviction and sentence was handed down without his presence.  
According to the ruling by the Texas Court of Appeals, shocks of 50,000 volts can impair a defendant’s cognitive abilities. The court ruled that Morris was shocked for punishment, not as a method of containment, which was a violation of his rights. The Court had no choice but to overturn the conviction. 
​For anyone who cares about rights and freedoms, this is a great thing. No one should have to be subjected to what is essentially torture – especially when they have not even been proven guilty of the crime they’ve been accused of. What does this mean for Mr. Morris? Well, he’s currently serving time in a Huntsville facility for a 1992 conviction for causing a child to experience bodily injury. On top of that, he will be retried for his 2014 charge."

Misconception #1: You can't be charged with a DUI if you haven’t had anything to drink
When most of us think of about being "DUI," we think of alcohol. However, it is also a crime to drive a vehicle under the influence of any drug (be it illegal, prescription, over-the-counter or a combination of prescription and illicit drugs,) that impairs your ability to safety operate that vehicle. it’s also a crime to drive a vehicle when you are not normal, mentally or physically, due to drugs in your system, regardless of whether they are .

Misconception #2: If you're under the influence of alcohol, you can avoid getting a DUI by riding your bike ...or a horse ...or a golf cart ...or a boat
California punishes the act of being under the influence while operating any of those modes of transport.

Misconception #3: You can just "feel" whether you're over the legal limit or not
I hear this one all the time from clients: "I thought I was okay to drive."  The reality is that the studies have shown that we are all poor judges of our own level of intoxication. While you may have a good tolerance for alcohol, meaning that your performance may not be as affected as a person with a lower tolerance, you can still be prosecuted for a DUI based on your blood alcohol level.
​
Misconception #4:  You have to take the Field Sobriety Tests (FSTs)
The law does not require you to take these tests, and in fact, most attorneys will tell their clients NOT to take them. Why? Because the tests can be difficult for ever a sober person to perform, and when you're under the added stress of being stopped by law enforcement, the chances of doing well is small.  These FSTs include taking a breath test before you are placed under arrest.  That said, here in California, must take a chemical test after arrest or your driver's line will be suspended for a year. 

Misconception #5: (On that same note) you have to answer the officers questions
With the exception of identifying yourself, and providing your license, registration and proof of insurance, you do NOT have to answer any of the officer's questions.  Why? Because you have the right against self-incrimination. So what should you say then? Any of the following will work:

•  “I am not going to answer any questions without first speaking to an attorney.”
•  “I respectfully decline to answer you questions."
•  “My friend/family member/attorney/priest/rabbi/voice in my head told me I should not answer any questions.”

Misconception #6: If you refuse to give a chemical sample, the police will not be able to determine what your BAC is, and therefore you cannot be convicted of a DUI
While you have the right to refuse to give a chemical sample (but be forewarned, the DMV will suspend your license for a year if you had been lawfully arrested at the time of your refusal,) if you are arrested for a DUI the police can and will apply for a warrant to take your blood.  If they can make a case to the judge on-call that there is probable cause to suspect you of a DUI, the judge will grant the warrant, and your blood will be (forcibly, if need be,) collected. 

Misconception #7: A driver has no way to check the validity of the test results
If you are arrested for a DUI, you will have the choice between a breath or blood sample, and the officer is required to inform you that if you choose the breath test, a sample of your breath will not be preserved for retesting. However, if you choose to have a blood test, your attorney can arrange to have the blood retested. Your attorney can also request the accuracy and maintenance records of whatever device tested your breath/blood so that we can make sure the testing device was working properly. 

Misconception #8: Because the officer didn't read you your Miranda rights, you can't be arrested
The Miranda decision only protects defendants from their post-arrest statements being used against them.  Two conclusions can be drawn from this. First, Miranda is not required to be read when you are simply pulled over and the officer is conducting his investigation. Second, as long as there is other evidence of your DUI offense (bad driving, chemical test results, FST results, etc.) you can be successfully prosecuted for a DUI.

Misconception #9: Your driver's license will not be suspended until after you've been convicted
In California, you have only 10 days after an arrest for a DUI to notify he DMV that you want a hearing to determine if the DMV can suspend your license; if you fail to contact them before that deadline, the DMV will suspend your license automatically. Worse, if you are later convicted of the DUI, the court will restart the suspension period. 

Misconception #10: If you are ordered to install an Ignition Interlock Device (IID) on your vehicle after a DUI, you can get around this requirement by driving someone else's car. 
In California, if you are ordered to install and maintain an IID, you cannot operate ANY vehicle that does not have one. 

Prior to 2015 those seeking to protect young, abused children often ran into trouble proving the case when the only witness to the abuse was the child him or herself.  They we got Ohio v. Clark. [1]  In 2010, Darius Clark was convicted of felonious assault and child endangering for abusing a three-year-old boy, his girlfriend’s son. Because the boy was deemed “incompetent” to testify due to his very young age, prosecutors called the boy’s Head Start Program teacher to testify, to provide information as to who had caused the bruises and the swelling on the boy’s face one day.  The teacher stated that when the boy was asked who had hurt him, the boy stated it was Clark.
This case reached the U.S. Supreme Court because Clark claimed that the trial court made an error in allowing the teacher to provide that testimony.  It was an error, he believes, because it denied him his 6th Amendment right to confront his accuser, the young boy.  As a result, the court had to decide whether “out-of-court statements that children make to their teachers about abuse can be used as evidence if a child is unable to testify in person.”
Previously, the court had held that such statements, if made to law enforcement officers, would be hearsay, and thus would not be admissible. Because teachers are legally required to report suspected child abuse to law enforcement, Clark’s attorneys argued that “teachers are in the same position as law enforcement officials when they question children” in these situations. The Ohio state Appeals Court and the Ohio Supreme Court agreed, overturning his conviction. 
In response, the lawyers representing Ohio asserted that the right to confront accusers applies only if (1) it is a government official or one of their agents talking to the child, and (2) the official or agent is talking to the child in preparation for a criminal prosecution.  Where teachers are talking to students, he posited, “it's simply a conversation between a teacher and student;” such conversations are to “protect children from immediate harm and remove them from danger, not to compile evidence for a criminal prosecution.” This is an opinion shared by forty-two other states, citing concerns that to rule otherwise would shield abusers from prosecution. 
SCOTUS held that such statements from a child to their teacher were non-testimonial, and thus their use did not violate the confrontation clause.  This was so because the totality of the circumstances indicated that the main purpose of the conversation was to respond to the “emergency situation” presented to the teacher when a potentially abused child may be sent home to their abusive parents/guardians, not to create an out-of-court substitute for trial testimony. Further, the court stated that as children are relatively unfamiliar with the way our court systems worked, it was improbable that the child thought they were speaking for the purpose of creating evidence.[2]


[1] Ohio v. Clark, 576 U.S. ___(2015).

[2] This argument has faced challenges from legal scholars who note that “ not one state court has previously made a child’s intent or purpose (or lack thereof) the linchpin of a decision.” (See Ohio v. Clark, Response by Professor Joan S. Meier, The George Washington Law Review at https://www.gwlr.org/ohio-v-clark/) 

While most states don’t take such a hard line, California law[1], unfortunately requires doctors to report a patient’s lapse of consciousness to the State Department of Health, which then reports it to the DMV. Under the State’s regulatory framework, which aims to ensure the safety of the public, the DMV is authorized to suspend the driver's driving privilege after receiving such a notification.[2] …And it can be any lapse of consciousness that triggers a suspension; the DMV is authorized to suspend a license for any reason from the patient suffering a seizure all the way down to a person bumping their head, or passing out as a result of being under the influence of a drug.  While the DMV generally does not fully suspend a license of driver’s[3] who have (1) just suffered their first lapse of consciousness, (2) have only nocturnal seizures only, or (3) seizures caused by a physician-directed medication change, the DMV retains wide discretion to ensure the driver poses little risk to themselves or others on the road when they are behind the wheel.
Vehicle Code section 12806c, states "The department may refuse to issue to, or renew a driver's license of, any person who has a disorder characterized by lapses of consciousness or who has experienced, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses." When determining whether to place any type of restrictions—right up to a full-blown suspension—on a driver’s driving privilege the DMV usually looks to: (1) Type & frequency of any lapses of consciousness. (2) the reliability of "warning" signals a driver may get in advance of recurring lapses of consciousness, (3) the length of time which has elapsed since the last lapse of consciousness., (4) whether the driver is complying with their medication schedule, and (5) the driver’s driving history.
However, all hope is not lost for drivers who have been issued an order of suspension or revocation.  If they request a hearing within 10 days of receiving any such orders, the driver is entitled to a hearing. At that hearing, the driver (or their attorney, of course,) can present evidence which demonstrates that the driver does not pose a risk to the safety of other drivers on the road. What the DMV should be looking to assess is whether the driver (1) is afflicted with “a disorder characterized by lapses of consciousness,” (2) experienced, within the last three years, either a lapse of consciousness or an episode of marked confusion caused by any condition which may bring about recurrent lapses, or (3) has any other physical or mental disability, disease, or disorder which could affect the safe operation of a motor vehicle.   What this means is that even if there is a determination that the driver has a disorder or disease which could cause lapses of consciousness, the burden is on the DMV to demonstrate that the condition currently affects his or her ability to drive safely. Further, there must be a direct connection between the condition and the driver’s ability to safely operate a car.
Perhaps the strongest piece of evidence a driver (or their attorney,) can use to prove that the driver should have their license privilege reinstated is a medical evaluation, which is often documented using the DMV’s form DS 326. The information a doctor would present in that form is comprehensive and directly tailored towards helping the DMV hearing officer understand the nature of the issue which caused the lapse of consciousness. 
Upon receiving a ruling from the initial hearing officer, a driver is entitled to a DMV review of the decision, but it needs to be noted that that departmental review is limited to a review of the hearing report and any other evidence presented at that hearing, and the driver is not allowed to introduce any new evidence. The driver can also request a court review of the matter through a process known as filing a writ of mandamus, but that review is also narrow in scope, looking only to whether the DMV abused its discretion in suspending the license.
If your license has been suspended for medical reasons and you wish to contest the suspension, Devina Douglas would be happy to assist you.


[1] Per Health & Safety Code 103900  

[2] Other reasons for suspending a driver’s license include:

• The driver being “involved as a driver in any accident causing death or personal injury or serious damage to property”
• The driver being “involved in three or more accidents within a period of 12 consecutive months.”
• The driver in three consecutive years having “committed three or more offenses which have resulted in convictions involving the consumption of an alcoholic beverage or drug, or both, while operating a” vehicle
• The driver being “a reckless, negligent, or incompetent driver of a motor vehicle.”
• The driver having “permitted an unlawful or fraudulent use of his driver’s license.”
• Any other ground for which a license might be refused, including the driver having been convicted of a crime involving the “use or possession of narcotic controlled substances”.

(Per Vehicle Code section 14100.)

[3] And instead, just place the driver on medical probation.