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Author Archives: Paul Burglin

Paul Burglin
Paul Burglin practices DUI defense in the San Francisco Bay Area including the Napa/Sonoma wine country. He has been specializing in DUI defense for more 35 years After graduating from U.C. Berkeley in 1980, Mr. Burglin received his law degree from Gonzaga University School of Law in Washington. He is Board Certified in DUI Defense (as approved by the American Bar Association) and co-authors the two-volume treatise, "California Drunk Driving Law." He is past Dean of the National College of DUI Defense (www.NCDD.com) and is Editor-in-Chief of its case law update and newsletter. He is one of only a select few of DUI defense attorneys in the United States to have attended the University of Indiana’s Borkenstein Course on chemical testing and scientific protocols offered to prosecution experts, and he is a certified graduate of that program. He has been selected to the 2021 Northern California Super Lawyers list and is A-V rated by Martindale-Hubbell.

Court Rules DMV’S Hearing Procedure Unconstitutional

     For many years the California DMV has used a single hearing officer to play the role of both prosecutor and judge in its administrative hearings regarding license suspension actions. Moreover, rulings by hearing officers to “set aside” suspension orders were sometimes reversed by Driver Safety Office managers who simply didn’t agree with the ruling even though they did not participate in the hearing.     California’s Second District Court of Appeal, Division 4, has ruled this administrative hearing procedure ... Read More »

Why The Rule of Lenity Should Be Invoked Regarding Diversion Eligibility For DUI Offenses

Grassi v. Superior Court (Div. Three of the Fourth District Court of Appeal – G060362) recently held DUI offenses are statutorily ineligible for diversion despite a 2021 diversion statute (Penal Code § 1001.95) that excludes specified crimes but not driving under the influence offenses. Its ruling was based on the Legislature’s failure to expressly repeal a forty year old statute (Vehicle Code § 23640) barring diversion for DUI offenses. The legislative history behind Penal Code § 1001.95 strongly indicates an ... Read More »

Diversion Now Possible For All Misdemeanor DUI Offenders in California

Effective January 1, 2021, all persons charged with misdemeanor DUI offenses in California (Vehicle Code sections 23152 and 23153) are arguably eligible to avoid a criminal conviction through diversion.  California Penal Code section 1001.95.  An old statute (California Vehicle Code section 23640) purports to exclude DUI offenses from all misdemeanor diversion programs, but the language of this new statute and the history behind it clearly demonstrates a legislative intent to include DUI offenses within it.  There are some trial courts ... Read More »

Google’s DUI Checkpoint Alerts Threatened

Law enforcement officers in California have long relied on the 4-3 California Supreme Court decision, Ingersoll v. Palmer, 43 Cal.3d 1321, to stop motorists in DUI checkpoints without a warrant or any vehicle code violation.  However, the decision came with certain limitations for constitutional compliance, and one factor is whether motorists are given advance publicity of these checkpoint stops.  Nothing in the subsequent U.S. Supreme Court’s decision in Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (another DUI ... Read More »

Ambien/Zolpidem – Unconsciousness Defense

Did you know that “unconsciousness” may be a complete defense to a criminal charge, including the offense of driving under the influence? One may be deemed “unconscious” even though they are walking and talking. The only requirement for this defense in a DUI case is that there must be at least a reasonable doubt that the state of unconsciousness was caused by involuntary intoxication. One instance in which the defense arises is where the accused took a prescribed dose of ... Read More »

Military Diversion

California Penal Code § 1001.80 will likely be amended to clarify that misdemeanor DUI offenses (Vehicle Code §§ 23152 and 23153) are not precluded from military diversion eligibility.  The California Senate, by a vote of 38-0, has already passed SB-725 to add proposed subsection (l) to California Penal Code § 1001.80 as follows: Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a pretrial diversion program in accordance ... Read More »

Suppression Of Evidence Following Birchfield

The United States Supreme Court’s recent holding in Birchfield v. North Dakota (2016) ___ U.S. ___ (Docket No. 14-1468) presents some new angles for defending DUI charges in California. Birchfield holds that in the absence of lawful consent under the Fourth Amendment, the police may not forcibly extract a blood sample from a DUI suspect or threaten a jail sanction in order to coerce consent to blood testing. If they do not obtain free and voluntary consent, they must get ... Read More »

Suppressing Chemical Test Results

You were arrested on suspicion of driving under the influence and told you were required to submit to a chemical test of your breath or blood. You may have also been told you had no right to speak with an attorney before deciding whether to submit to one or the other. There may be legal grounds under the Fourth and 14th Amendments to the United States Constitution to suppress the test results from evidence. The seminal case of Missouri v. ... Read More »

Police Credibility Being Challenged In DUI

I once talked to a criminal defense attorney who told me in the late ’60’s he won 17 consecutive motions to suppress evidence based on Fourth Amendment violations committed by the police. Many DUI defense attorneys have not prevailed on that many motions to suppress evidence in their careers. What happened is that our courts became packed with conservative judges following the ouster of Rose Bird and two of her colleagues on the California Supreme Court. Voters in California were ... Read More »

CAVEAT EMPTOR — THE MISLEADING NATURE OF ON-LINE REVIEWS AND WEBSITE CLAIMS

The California State Bar has issued a formal opinion about misleading representations by attorneys on their websites and blogs (Formal Opinion Interim No. 12-0006) and the reason is that too many lawyers are making claims that have no basis in reality. Some claim to be recognized as one of the “Top 100 Trial Lawyers In America” but fail to mention that they simply paid $375.00 for the logo and trophy and did nothing to earn the purported distinction. Another popular ... Read More »