JAMES V. PEPIN, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent Court of Appeal of California, Fourth Appellate District, Division One July 22, 1969
The Department of Motor Vehicles ordered Plaintiff (James V. Pepin’s) driver’s license suspended for his refusal to submit to any of the blood alcohol tests required by Vehicle Code, section 13353, after he was arrested by an officer who had reasonable cause to believe he was driving while drunk. Plaintiff brought mandamus in the superior court to compel the DMV to reinstate his driving privileges. The Superior Court of San Diego County denied the driver’s application for a writ of mandamus to compel defendant Department of Motor Vehicles to reinstate a driving license. Plaintiff driver sought review the above judgment.
Issues:
Whether the trial Court erred in denying the Plaintiff Writ of Mandamus?
Whether § 13353 violate the driver’s right to equal protection?
Conclusion:
Pepin un-meritoriously asserts that because section 13353 does not permit an exception for “employment-livelihood” cases, similar to that of Vehicle Code, section 13210, he is denied the equal protection of the laws. The issue is whether section 13353 arbitrarily discriminates against certain classes of persons who refuse to take the chemical test, as opposed to other classes who also refuse the test. No discrimination exists. No particular class of person is selected for suspension for refusing a chemical test.
The suspension is mandatory, not discretionary. Pepin did not have a constitutional right to refuse to take the chemical test.
Hence the Court affirmed the trial Court’s Judgment.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York,California, North Carolina & India to serve the clients of the SRIS Law Group.
The People of the State of New York, Plaintiff, v. George P. Kelty, Defendant
District Court of New York, First District, Nassau County
June 30, 1978
Facts:
Defendant was charged with driving under the influence. Defendant made an omnibus motion to suppress a statement allegedly made by the defendant and the results of a breathalyzer test given to the defendant, on the grounds that it was illegally performed.
Issue:
Whether defendant’s Motion to suppress a statement should be allowed?
Discussion:
The court found that the police had probable cause for the arrest and there was enough evidence for the jury to find that the breathalyzer test was performed within two hours after arrest. It is clear that there is no constitutional prohibition against giving such a test without defendant’s consent. Thus, the right of refusal is not a personal privilege but an accommodation to avoid a distasteful struggle to forcibly take blood, breath or saliva. It is a qualified statutory right whereby the defendant and police may avoid the unpleasantness connected with administering a test to an unwilling subject. The People have shown the legality of the police action by satisfying the court that they had probable cause for the arrest and performed the test within two hours of arrest. Since the defendant’s consent is deemed, the People need only show that the test was given, that it was performed after an arrest based upon probable cause and within two hours of that arrest. In order to sustain his motion to suppress, defendant had the burden of going forward to show that the test was given, even though the defendant refused to take it. This defendant has failed to do and has not met the burden necessary to suppress a chemical test which he claims he had refused.
Accordingly, the motion to suppress the chemical test is denied.
The court ruled that defendant had the ultimate burden of proving that the evidence should be suppressed. Further, the court held that the state showed the legality of the police action by satisfying the court that they had probable cause for the arrest and performed the test within two hours of arrest. Also, the court found that in order to sustain his motion to suppress defendant had the burden of going forward to show that the test was given, even though defendant refused to take it. The court denied the motion to suppress, concluding that defendant failed to meet the burden necessary to suppress a chemical test which he claimed he had refused.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
STATE OF NORTH CAROLINA v. KAREN SEAGLE FOREMAN SUPREME COURT OF NORTH CAROLINA
On 16 November 1996, defendant was arrested for driving while impaired (DWI), possession of drug paraphernalia and possession of cocaine. Defendant was subsequently indicted for the DWI charge. On 16 September 1997, defendant was found guilty of DWI in District Court, Craven County, and gave notice of appeal to the superior court. On 12 February 1997, defendant filed a motion to dismiss the charge because there was no probable cause sufficient to justify the stop of her vehicle or in the alternative, to suppress any evidence obtained from the stop of defendant’s vehicle. The trial court denied defendant’s motion to dismiss or to suppress, and defendant was tried before a jury at the 23 February 1998 Criminal Session of Superior Court, Craven County. The jury found defendant guilty of DWI. On 25 February 1998, the trial court, inter alia, sentenced defendant to a suspended sentence of sixty days in jail with unsupervised probation for two years and revoked her license for one year. Defendant appealed to the North Carolina Court of Appeals. On appeal, the Court of Appeals found no error. In support of its decision, the Court of Appeals concluded that it was not constitutionally permissible for an officer to stop a vehicle which had made a legal turn away from a posted DWI checkpoint.
ISSUES:
Whether a legal turn away from a posted DWI checkpoint would justify an investigatory stop and whether it is constitutionally permissible?
DISCUSSION:
When an officer observes conduct which leads him reasonably to believe that criminal conduct may be afoot, he may stop the suspicious person to make reasonable inquiries. In the instant case, the officer observed a “quick left turn” away from the checkpoint at the precise point where the driver of the vehicle would have first become aware of its presence. However, Officer Ipock did not stop defendant’s vehicle once it turned away from the checkpoint. In fact, we cannot conclude that Officer Ipock “stopped” defendant’s vehicle at any point. Defendant voluntarily parked in a residential driveway and remained hidden in the car until Officer Ipock approached the vehicle. Therefore, defendant was not “seized” by the police officer until at least that point. Based upon that series of incriminating circumstances, the Court concluded that the Court of Appeals correctly determined that Officer Ipock observed sufficient activity to raise a “reasonable and articulable suspicion of criminal activity.
There is no dispute that the DWI checkpoint in the present case met all the statutory requirements for an impaired driving checkpoint. The perimeters of the checkpoint were marked with signs stating that there was a DWI checkpoint ahead, and the signs were posted approximately one-tenth of a mile prior to the actual stop. The checkpoint was established with the intent to stop every vehicle briefly and to check for impaired drivers traveling on Neuse Boulevard within the vicinity of the checkpoint. Certainly, the purpose of any checkpoint and the above statute would be defeated if drivers had the option to “legally avoid,” ignore or circumvent the checkpoint by either electing to drive through without stopping or by turning away upon entering the checkpoint’s perimeters. Further, it is clear that the perimeters of the checkpoint or “the area in which checks are conducted” would include the area within which drivers may become aware of its presence by observation of any sign marking or giving notice of the checkpoint. Therefore, the Court held that it is reasonable and permissible for an officer to monitor a checkpoint’s entrance for vehicles whose drivers may be attempting to avoid the checkpoint, and it necessarily follows that an officer, in conjunction with the totality of the circumstances or the checkpoint plan, may pursue and stop a vehicle which has turned away from a checkpoint within its perimeters for reasonable inquiry to determine why the vehicle turned away.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
CLEM KINCAID v. COMMONWEALTH OF VIRGINIA Supreme Court of Virginia December 1, 1958
The defendant, Kincaid was convicted in the circuit court on April 23, 1957, of reckless driving. Later he was again, charged with reckless driving. He was tried and convicted of this latter charge on November 6, 1957, and the judgment entered on that conviction is the subject of this appeal. During the course of the trial the Commonwealth introduced evidence of the previous conviction (April 23, 1957), which evidence was admitted over the objection of the accused wherein he asserted that the evidence was inadmissible as the warrant on which he was being tried did not charge a second offense. In instructing the jury, over the objection of the accused, the court set forth the penalties for a second offense of reckless driving, and the jury imposed a fine as permitted under the instruction and as provided in the statute (Code, § 46-210 as amended; now § 46.1-192, 1958 Cum. Supp.) for a second offense. The accused moved to set aside the verdict as contrary to the law and without evidence to support it, and further urged the court to grant him a new trial on the ground that the court erred in permitting the introduction of evidence relating to the previous conviction. These motions were overruled and judgment was entered on the jury’s verdict. The defendant sought review of the decision.
Issues:
Whether the trial court erred in admitting evidence relating to the previous conviciction?
Whether a defendant in a criminal case can be taxed with the costs of a jury without invading his constitutional right to trial by jury?”
Discussion:
This court held that it was error for the court to admit the evidence relating to the prior conviction and to instruct the jury regarding the punishment for a second offense. In this case the warrant simply charged that the accused did unlawfully operate a motor vehicle on the public road in a reckless manner and did not charge him for a second offense. Thus he should have been put on trial for the offense as charged and no other this court held that under the evidence, the issues involving the identity of the accused and whether or not he was guilty of reckless driving were for the determination of the jury
This court held there is no merit in the contention that the taxing of the costs of the jury is an invasion of the constitutional right of the accused to a trial by juryCode, § 19-296 imposes upon the clerk of the court the duty to make up a “statement of all the expenses incident to the prosecution” and issue an execution therefore. The costs of a jury are an expense incident to the prosecution, and its collection violates no constitutional right of the accused.
Conclusion:
The court reversed the judgment of the trial court, which convicted the defendant of reckless driving and overruled his motions to set aside the verdict and for a new trial. The court remanded the case for a new trial.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts. The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation, bankruptcy & military law. The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Lynchburg County, Prince William County & Fredericksburg, Virginia. The Maryland offices are in Montgomery County & Baltimore. The Massachusetts offices are in Boston & Cambridge. The New York office is in New York City. The North Carolina Office is in Charlotte, NC which is in Mecklenburg County. The California office is in Orange County, CA.
The law firm has more than 11 offices in Virginia, Maryland, Massachusetts, New York, California, North Carolina & India to serve the clients of the SRIS Law Group.
Alex is live for the first two hours of the broadcast. He will talk about the unconstitutional effort by Congress and Obama to force through health care using “deem and pass” without a vote by the Senate. Obama, Congress, and Treason Against the Constitution Kurt Nimmo www.infowars.com March 19, 2010 On Thursday, Robert Gibbs, Obamas press secretary, responded to a question about the so-called Slaughter Rule (named after Rep. Slaughter, who sits on the rules committee) that will be used by Democrats to force through Obamas totalitarian care bill, probably over the weekend. Gibbs answer was deliberately opaque. By not addressing the question, he essentially said deem and pass will be used in the future to enact unpopular legislation, including a bill that will legalize millions of illegal immigrants. It is now official — the Constitution is dead. It may as well be used to wrap fish. Article 1, Section 7 of the Constitution requires that both houses of Congress hold recorded yea-or-nay votes on a bill before it can be presented to the president for his signature and before it can become law. Obama approves of sabotaging the Constitution. He said he does not spend a lot of time worrying about what the procedural rules are, in other words violating the spirit and law of the Constitution is not a biggie for him. What I can tell you is that the vote thats taken in the House will be a vote for health care reform. And if people vote yes, whatever form that takes, that is going to … Video Rating: 4 / 5
