DUI Not Driving

[james.wilson]

What is the name of your state (only U.S. law)? California

I am assisting a friend in researching case law and statutes related to DUI arrests where no vehicle was involved or present at the time of arrest. The case seems rather flimsy for the state but they are proceeding. Friend just got out of arraignment this morning with police report which I am currently reviewing. Plea was not entered pending review of police report and discovery.

The facts so far from my friend and corroborated by police report seem like a shotgun attempt at any charge as he was charged with DUI, Driving on suspended and Obstruction.

He was taking photographs and video from public sidewalk, was intoxicated (unknown level, refused tests). Approached by LEO as construction crew didn't like him photographing them and called LEO. LEO detected odor of alcohol, asked him questions which he refused to answer. Asked for ID which he refused to provide. Arrested him on suspicion of DUI. While searching his pockets they located a set of keys where one key appeared to be for a vehicle. While searching the neighboring parking lots they located a vehicle the key matched and opened the trunk successfully. During this time he sat quietly in back of patrol car and refused to speak.

In the police report LEO indicated the distance from the arrest and vehicle was approximately 300 yards.

I have reviewed PC 836, and VC 40300 and neighboring statutes and it seems like a pretty flimsy case. Continuing to research, found some reasonably applicable case law but it is mostly 1985'sh.

Thoughts?

 

[Zigner]

I think your friend needs an attorney.

 

[tranquility]

I think your friend needs an attorney.

I agree. But, would love to know the relevant cases to see if the OP even has an idea on how to do legal research.

 

[james.wilson]

I agree. But, would love to know the relevant cases to see if the OP even has an idea on how to do legal research.

I don't have any idea how to do legal research, trying and willing to learn

I read Music v. DMV 1990, not applicable as it appears administrative, but still provides some insight.
I read Padilla v. Meese 1986, semi-applicable but not.
I read People v. Ashley 1971, too old
I read People v. Engleman 1981, too old, semi-applicable

 

[tranquility]

I don't have any idea how to do legal research, trying and willing to learn

I read Music v. DMV 1990, not applicable as it appears administrative, but still provides some insight.
I read Padilla v. Meese 1986, semi-applicable but not.
I read People v. Ashley 1971, too old
I read People v. Engleman 1981, too old, semi-applicable

To start, a case cannot be "too old". It is either precedent or has been overturned. Old can be best. When you cite a case, make sure you use the numeric designation. For example in Engleman, you'd add "172 Cal. Rptr. 474" because that is the real "name" of the case. Anything else is guesswork. Then, to do what used to be called "Shepardize" (Because of the books you'd use to check.), you might search for that name in quotes in your case database. Look to the latest case to see if it is still being used. If it is still being used, it is precedent as to the issue being used.

That's the next tip. "Issue". What issue are you trying to look up. When I do a quick look at the cases, none of them deal directly with the issues you speak. Certainly not Engleman. My goodness, Ashley has nothing to do with your issues. Padilla seems on the surface to be useful, but when you review how it is used, the driving portion is called dicta while the citizen's arrest portion is the main issue. I'll leave it for you to describe the issue in Music.

Once again, your friend needs an attorney. You are not going to get him any help if he plans on doing this himself and an attorney will do the research far quicker and with better result.

 

[justalayman]

If I recall correctly what cdwjava has posted, you have to have been observed driving to be convicted of DUI.

 

[davew128]

To start, a case cannot be "too old".

I have to disagree. The US District Court said it absolutely was in the recent case regarding the IRS requiring tax preparers to be registered as part of practice before the Treasury. Granted its a completely different set of circumstances and DOJ went WAY out on a limb defending the IRS's position, but that is what the court said.

 

[CdwJava]

To make a DUI case, driving must be observed. There are exceptions, but just on its face, there does not appear to be one here.

What statute(s) is he charged with violating?

 

[justalayman]

I have to disagree. The US District Court said it absolutely was in the recent case regarding the IRS requiring tax preparers to be registered as part of practice before the Treasury. Granted its a completely different set of circumstances and DOJ went WAY out on a limb defending the IRS's position, but that is what the court said.

I am curious about this as the standard is; unless a decision being cited has been overturned in whole or part by a more recent decision, the law in the decision is still controlling. Case law decades or greater is often cited to support the party's case. That is what common law is all about; using standing decisions to guide the decision at hand. Should you remove that, you could re-litigate the exact same issue over and over again simply because there is no supporting case law recent enough.

 

[CdwJava]

The age of a case does not determine whether it is controlling or not, only whether it has been upheld or modified by subsequent law or court decisions.

Remember, Miranda v. Arizona was made in 1966 and is still largely controlling, with Dickerson v. United States and others clarifying issues contained within the case.

 

[davew128]

I am curious about this as the standard is; unless a decision being cited has been overturned in whole or part by a more recent decision, the law in the decision is still controlling. Case law decades or greater is often cited to support the party's case. That is what common law is all about; using standing decisions to guide the decision at hand. Should you remove that, you could re-litigate the exact same issue over and over again simply because there is no supporting case law recent enough.

Here's the case. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0385-22

The court pretty much said that existing case law does not apply as IRS said it did in part because it the issues being litigated involved facts and issues which did not exist when the prior cases were litigated.

 

[justalayman]

Here's the case. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0385-22

The court pretty much said that existing case law does not apply as IRS said it did in part because it the issues being litigated involved facts and issues which did not exist when the prior cases were litigated.

I didn't read that yet (narrowing down the location of the statement you are referring to would be nice) but...


that is a VERY different situation (based on your explanation here). They are not saying it is too old. They are arguing it is not supporting case law because it is not an issue the case addressed. that is the way it is for all case law. That would be like trying to apply a case dealing with candles in a current case involving lasers. While there are some underlying parts that may be relevant (they both create light), but for the most part, there is no accurate comparison to the issues so it is not applicable case law.

 

[Ohiogal]

I don't have any idea how to do legal research, trying and willing to learn

I read Music v. DMV 1990, not applicable as it appears administrative, but still provides some insight.
I read Padilla v. Meese 1986, semi-applicable but not.
I read People v. Ashley 1971, too old
I read People v. Engleman 1981, too old, semi-applicable

Why are you practicing law without a license? Or attempting to do so?

 

[tranquility]

Here's the case. https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2012cv0385-22

The court pretty much said that existing case law does not apply as IRS said it did in part because it the issues being litigated involved facts and issues which did not exist when the prior cases were litigated.

That's called distinguishing. That's what lawyers do. They say the facts are different from the precedent.

 

[princymelba]

Drunk driving is the crime of driving a motor vehicle with consuming lots and lots of alcohol in excess. It means not only alcohol but even consuming other drugs and driving it a criminal offense. Generally, it is may seems to be a minor offense, but in fact it’s the most complicated criminal charges for the attorneys to fight in behalf of you. So friend should seek help of an attorney