MUST a Marine Corps Reservist self-report a DUI Arrest that occurred while the Marine was NOT on duty (in status)?

Discussion- The Navy has a NAVINSTR-, Nav Instruction, that MANDATES that Sailors (and Marines too), self-report ANY arrest or criminal charge.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

I used the term MUST above because it is the basis of a criminal charge.  That is, if the UCMJ says you MUST do something and you fail to do it you can be Court-Martialed.  ALSO, you can receive lesser PUNISHMENT.  That means, Article 15/Non-Judicial Punishment/Captain’s Mast.  NJP has to be processed THROUGH JAG/Attorney channels, BUT there is no Judge, no prosecutor and no defense counsel (though you get to speak with a defense counsel, military and civilian if you want), prior to NJP.  Unless you are attached to a ship, you can also turn down NJP and demand trial by Court-Martial (bringing in criminal procedure and judges lawyers etc).  Thus, there has to be a crime (punitive article) underlying any such charge.  For ACTIVE DUTY (so Regular Navy/Marine/Air Force/Army etc), AND those Reservists/Guardsmen ON DUTY/IN STATUS, Navy/Marines MUST report any arrest/charge.  Failure to do so can result in Court-Martial etc.  It has in the past.  Servicemember failed to report arrest, underlying charge dismissed, whatever, but military Court-Martialed and Convicted servicemember for failure to report (and this has happened more than once and if I remember correctly was also drummed out (With such a charge and the fact that they brought it to CM, they were looking for the kick.  They got it. 

However, Reservists/guardsmen are DIFFERENT. If they do something while NOT in status there is no jurisdiction over them. They cannot be punished for their “out of status” conduct. Hence, if the DWI Arrest occurred while out of status he also need not report. That is, if he failed to and they found out could they Court-Martial him, NJP him, administratively separate him, or such, based on the MISCONDUCT OF failure to report? NO. They cannot because jurisdiction does not lie. Therefore, in most cases he/she need not.

Anyone facing a DUI arrest in California should consult with a criminal defense attorney and a JAG lawyer as soon as possible to get specific legal advice regarding there individual situation.

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Can Physical Ailments Such As Long Covid Cause False Positives During Field Sobriety Tests?

The PAS requires a certain amount of breath pressure before it will capture a sample of breath suitable for a BAC result. Many folks have physical limitations or breathing problems that limit their ability to perform. For example, if a person is suffer from Long Covid they can have lung scarring that may prevent them from providing sufficient breath pressure to obtain a result on the preliminary alcohol screening device.

Second, people with physical disabilities may not be able to perform SFST exercises. Long Covid patients again may have problems. Some officers may ask if the subject has medical problems but not actually “dig in” and inquire whether they may be suffering from Long Covid.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

There is a real danger of cops making incorrect arrest decisions on drivers showing signs of fatigue, shortness of breath and other symptoms of Long Covid. These objective symptoms can be confused with alcohol and/or drug impairment.

Most DUI Attorneys will or should inquire whether the client is afflicted with certain medical conditions that can create possible issues in the defense of DWI.

Regarding SFST exercises, only the HGN requires the officer to perform a “medical assessment”. Other FSTs such as the Walk and Turn and One Leg Stand do not require a medical assessment phase. Therefore, common physical ailments can often mimic signs of impairment.

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The DMV Must Prove A Driver Was Properly Admonished Of The Consequences In Order To Suspend A License For A Refusal


When a driver was not admonished in compliance with Vehicle Code section 23612(a)(1)(D), because the officers improperly read the admonition or misstated the admonition, a refusal finding cannot be sustained at a DMV hearing.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

 Decker v. Department of Motor Vehicles, (“Decker”) (1972) 6 Cal.3d 903, holds that when a police officer provides an inaccurate test admonition following a DUI arrest, there cannot be a refusal. 

In Decker, the California Supreme Court addressed the elements of section 13353. The appellant was arrested for DUI and advised that if he refused to submit to chemical testing, his driving privileges could be suspended for a period of six months. Id. at 905. Decker responded that he understood that admonition but that “they won’t take my driver’s license.” Id. The court rejected DMV’s argument that substantial compliance with the requirements of section 13353 was sufficient. Id. at 906.

In so doing, the Decker court agreed with the rationale and conclusion set forth in Giomi v. Department of Motor Vehicles, (1971) 15 Cal.App.3d 905, 907, which held that a proper warning of the consequence of refusal is one of the elements essential to suspension of license. Hence, an admonition is adequate if it states that refusal “would probably” cause suspension, but an admonition that refusal “could” result in suspension was insufficient because it suggests only a possibility of suspension. Id. at 905. The Decker court stated that an officer’s qualification of the admonition, without explanation, could mislead the driver concerning the legal realities of the situation and thereby defeat the purpose behind the statute. Id. at 907.

The court cautioned that a trial court is obligated to determine whether the driver was in fact misled by inaccurate advice and whether his refusal to submit to a test was a result thereof. Id. at 907. See also Hoberman-Kelly v. Valverde, (2013) 213 Cal.App.4th 626, 632-33 (where driver expresses confusion, arresting officer must elaborate on the juxtaposition of Miranda warning and implied consent warning and inter alia, inform him that he has no right to consult an attorney before making a decision that he will or will not submit to chemical test).

Defending a refusal allegation at a DMV hearing is imperative if the client wishes to keep his driving privileges in California. If the APS hearing results in a finding of a chemical test refusal the license will be suspended and cannot be set aside even if the driver is successful in getting an acquittal in Court.

Matthew Ruff is a Nationally Recognized DUI Lawyer in Torrance CA. With over 25 years experience in defending drunk driving cases, Matt is often consulted by other professionals for guidance in this very complex area of the law.

Top Torrance DUI Lawyer Matthew Ruff wins Refusal Hearing

In order to win a DMV hearing involving a refusal allegation you must be prepared and be familiar with the current laws in California. Matthew has the highest track record of “set asides” for APS Hearings. What this means is he saves licenses for his clients who have been arrested for DUI. Refusals are particularly difficult because the officer usually does a good job of submitting paperwork that will guarantee a suspension of your license. Why? Because the officer wants to punish you for being non compliant and follow his orders. Vehicle Code section 13353 governs the suspension and/or revocation of your license for failure to submit to a chemical test.

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If you have been recently arrested for DUI and plan on traveling to Canada, you may face some obstacles.

For context, Canadian immigration officials sometimes ask foreign nationals entering by foot, car, bus, train, boat, or plane whether they have ever been arrested.  By the official’s training, experience, and hunches, follow-up questions would depend on the traveler’s answer and demeanor.

If you are planning on traveling to Canada in the near future and have recently been arrested for DUI you should be aware you may face admissibility to the Country.  Many attorneys believe that either the traveler’s admission of a DUI arrest, or the confirmation by digital record of a DUI arrest, without more, may be enough to trigger inadmissibility.

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

Some foreign nationals pass through with no questions at all.  It depends on staffing, how busy they are, and a profiling algorithm.  If entering by plane, officials may have passenger lists they can research ahead of time.

But just about every border crossing will have electronic passport scanners that can instantly bring up a criminal history.  Importantly, they don’t access state records; only data from the FBI National Crime Information Center (NCIC).

Here are details on how to check to see what’s in the NCIC database, prudent for any U.S. citizen heading to Canada with any doubt as to what will show up :

https://www.fbi.gov/services/cjis/identity-history-summary-checks

It used to take a month or more to obtain that FBI Identity History Summary.  But it’s now much faster.  What’s there and what’s not there is critical, including arrests, convictions, dismissals, and acquittals.  Sometimes the information there is incorrect or incomplete, depending on whether, when, and how accurately the data is sent there by local law enforcement agencies and courts.

Matthew Ruff is a Torrance DUI Lawyer with nearly 30 years experience defending drivers accused of all manner of alcohol and drug related charges.

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Were You Arrested For DUI and “Submitted” To a PAS Breath Test? You May Need To File A Motion To Suppress

In many cases the police take a breath sample in the field (PAS, short for preliminary alcohol screening) and fail to properly advise the person of their right to refuse under California law. Because the officer is seeking a sample of a person’s deep lung air, a breath sample is a search, Skinner v. Railway (1989) 489 U.S. 602, 616-617, which is not the case with other FSTs, See People v Bennett (1983) 139 Cal.App.3d 767, 771, and given that warrantless searches are presumptively illegal, the administration of the PAS test requires actual consent.

Furthermore, there is no implied consent to take a PAS test. Vehicle Code §23612 (a)(1)(A) provides that “any person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood or breath for the purpose of determining the alcohol content of his or her blood if lawfully arrested . . .” V.C. §23612 (a)(1)(C) provides in essence that “the testing shall be incidental to a lawful arrest” . . . for DUI. Vehicle Code §23612(a)(1)(A) and 23612(a)(1)(C) do not apply to the P.A.S. test because the defendant was not lawfully arrested when the police searched defendant.

Where the government relies on consent to justify a warrantless search, it must establish by substantial evidence that the consent was voluntarily given. Mere acquiescence to a claim of authority will not suffice. The People must show that consent was uncontaminated by any duress or coercion, actual or implied. People v. Challoner (1982) 136 Cal.App.3d 779, 781. When a driver is confronted by an armed and uniformed police officer to blow into a breath box on the roadside or face arrest, the circumstances are pregnant with coercion.

Here defendant never vocalized any words whose meaning could be construed as consent to the test. Although he offered no resistance to the administration of the PAS test, the defendant’s conduct can only be construed as “submitting” to a PAS test.  There was no manifestation of consent. The evidence instead shows that defendant submitted to the search and that this submission was due to the officer’s expression of lawful authority.  Acquiescence to lawful authority does not amount to consent. (See People vs Ling (2017) 15 Cal App 5th Supp 1.)

California law requires the officer to tell the suspect they have a right to refuse the PAS. The Police Officer clearly failed to follow the law in this case.

Vehicle Code section 23612 (H and I) states:

(h) A preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of Section 23140, 23152, or 23153 is a field sobriety test and may be used by an officer as a further investigative tool.

(i) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. The person’s obligation to submit to a blood, breath, or urine test, as required by this section, for the purpose of determining the alcohol or drug content of that person’s blood, is not satisfied by the person submitting to a preliminary alcohol screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test. (Emphasis Added).

The California Vehicle Code §15 directs that the use of the term “shall” is mandatory as it relates to the language contained in Vehicle Code §23612.

Indeed, People vs Jackson (1990) 189 Cal App 4th 1461 confirmed the requirement that a driver be advised of the statutory right to be advised of the purpose of the search and to refuse the intrusion as mandated in VC 23612.

The failure of the officer to follow the legal command to inform the defendant that he had an expressly enacted right to refuse the PAS test, has Fourth Amendment significance. It must be remembered that mere “submission” to a search is not the equivalent of consent. Where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority. See Florida v. Royer (1983) 460 US 491,497.

Here, because the officer failed to comply with the law there is no evidence of a “knowing and intelligent waiver” of the right.

Courts have long held that the “touchstone of the Fourth Amendment to the United States Constitution is reasonableness. (See Florida v. Jimeno (1991) 500 U.S. 248, 250), it is not reasonable for a policeman to ignore a statutory command designed to protect people’s liberty. As such, the PAS numerical results should be suppressed as unreasonable and collected without a search warrant.

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Arrested For DUI, Do You Need A Criminal Defense Attorney Or A DUI Lawyer?

Matthew Ruff, Torrance Criminal Defense Attorney

In California the charge of driving under the influence is a misdemeanor criminal offense unless someone is hurt or the accused has more the 3 priors in the last 10 years. The offense carries stiff penalties such as potential jail time and loss of driving privileges. When choosing who to defend you is it better to get a criminal defense lawyer or someone who specializes in drunk driving cases?

Since the charge includes DMV consequences in addition to possible penal consequences it is best to choose an attorney who has special knowledge of DWI and the intricacies involved. For example, the administrative hearing associated with the case involves evidentiary rules and procedures more akin to civil than criminal. The unique legal rules require an understanding of a broad spectrum of law.

The evidence in a driving while intoxicated case is also very different than any other case. For instance, the tests given to a suspected impaired driver are called SFST’s and require an understanding of NHTSA standardized training and the protocol and methods utilized in the administration of the tests. A DUI Lawyer is educated on the methods to attack the tests in Court and to cross examine the police officer regarding any mistakes made in the investigation.

With regard to the chemical test aspects of the case, it is imperative to have an understanding of the science and regulations which govern drug and alcohol testing in the State of California. You see in order to establish defenses in the case you must be able to spot issues such as defects in the blood collection process or how the breath test was conducted. Moreover, the 4th Amendment to the Constitution which protects citizens from unreasonable searches and seizures plays a big part of driving under the influence practice. The lawyer must have a working knowledge of the case law and statutory laws governing the challenge of police practices.

Here’s a recent example of how specific knowledge lended itself to the favorable resolution of a DUI case in Torrance Court. The client chose a breath test and Matt obtained the records of the machine used. He discovered a malfunction in the breath sample hose heater which he used to get a reduced charge in the case.

Another example is a case where the client submitted to a blood test and the BAC came back well above the legal limit. At the DMV hearing Matthew was able to expose the fact the sample may have been collected in violation of Title 17 of the California Code of Regulations. As a result the License was returned. You see, the Department of Motor Vehicles gives great weight to a violation of official regulations therefore a good understanding of the relevant rules and regulations will assure a favorable outcome. Likewise, in another retained case Counselor Ruff was able to expose a violation of then CCR 1219.3 which compels the breath test operator to continuously observe the subject for a minimum of 15 minutes prior to the collection of a breath sample, result was a dismissal and return of driving privileges.

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Does a Pilot Need To Report A Refusal to the FAA?

The answer to this question requires a brief discussion laws, rules and regulations. First, 14 Code of Federal Regulations (CFR) 61.15(e) requires that everyone holding a pilot’s license report motor vehicle actions (see 61.15(c) for definition but it includes DWI/DWAI conviction and breath test refusal revocation of license) to the FAA within 60 days. The contents of the report are described in 14 CFR 61.15(e) but at a bare minimum must include (1) the person’s name, address, DOB, and airmen certificate number; (2) the type of violation that resulted in the conviction or the administrative action; (3) the date of the conviction or administrative action; (4) the state that holds that record of conviction or administrative action; and (5) a statement of whether the motor vehicle action resulted from the same incident or arose out of the same factual circumstances related to a previously reported motor vehicle action. Note that the fifth point specifically references cases where a driver loses his/her license and is convicted of DWI/DWAI stemming from the same arrest. That said, a pilot’s license holder must report each of those motor vehicle actions with reference to the preceding action. Failure to comply with this section will result in denial of an application for a license for up to one year or suspension/revocation. See 14 CFR 61.15(f).

Top Torrance Criminal Lawyer
Matthew Ruff, Torrance Criminal Defense Attorney

 Further instructions for reporting and a guide for doing so can be found here: https://www.faa.gov/about/office_org/headquarters_offices/ash/ash_programs/investigations/airmen_duidwi

14 CFR 61.15(d) says that, except for a motor vehicle action that results from the same incident, a motor vehicle action occurring within three years of a previous motor vehicle action is grounds for denial of an application for a license for up to one year or suspension/revocation. That may be good news on its face, but a first-offense DWI arrest and/or refusal revocation is not out of the woods.

Pilot’s license holders must re-apply for their medical certificates on a regular basis. How often depends on the pilot’s age and rating. The application for a medical certificate (sample of which can be found here: https://www.gleim.com/public/pdf/ltf/faa_form8500.pdf

Question 18v, of the application, asks for any history of (1) arrests and/or convictions involving DWI/DWAI (have seen a couple versions of the applications online—appears that the older version asked for just convictions while the newer versions may ask for arrests as well); or (2) convictions or administrative action that resulted in a loss of driving privileges. If the answer is yes, that person is expected to provide further explanation that’s defined in the application. The person reviewing the application, called an AME, will review this information consistent with these instructions by the FAA:

In summary, when a pilot gets stopped and arrested for DUI and is issued a notice of suspension of their driving privileges he or she faces the reality that reporting the incident to the FAA will often be required, regardless whether they have been convicted in Court. It is wise to speak to an experienced DUI Lawyer if you have questions about your future. Our Attorneys can answer questions such as ”what are the consequences for a pilot convicted of a drunk driving?” and ”will I lose my pilots license if i get a DUI”.

If you are facing an upcoming Court date for DWI in California call Matt today for a discreet consultation about your case.

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Torrance Criminal Defense Attorney Matthew Ruff Explains Domestic Violence Laws in California

Anyone facing an upcoming DV criminal charge can easily be confused, scared and unsure of what the future holds, this article will explain the various domestic violence charges that can be filed against a person in the Torrance Court.

The most common crime involving DV is the Penal Code 273.5 charge that requires an actual injury or “traumatic condition” be inflicted on the victim. An injury does not need to be substantial or serious, it can simply be redness or a mark, however there must be something visible or medically diagnosed. This offense is commonly booked as a felony but it can be reduced or ”wobbled down” to a misdemeanor based on a variety of factors. The crime is sometimes referred to as ”spousal abuse” and it carries a minimum bail of $50,000.00.

Actual Case Result of Torrance Domestic Violence Attorney, Matthew Ruff

The second most common domestic violence charge is the crime of Penal Code section 243(e)(1). This offense is a misdemeanor and requires the person touch, assault, or batter an individual in a rude or threatening manner. The victim must be someone with whom the accused has had or us having a dating or intimate relationship, such as a boyfriend, girlfriend, wife, husband, etc. The bail on this offense is $25,000.00. The primary difference between this criminal charge and the PC 273.5 is that no injury or ”traumatic condition” was inflicted on the alleged victim. Put another way, the 243e1 is an assault or battery on a person where no mark was left or injury caused.

With regard to the potential punishment or consequences of the crimes discussed above, the misdemeanor carries a maximum penalty of 1 year in the county jail whereas the felony carries up to 3 years in a California State Prison. In addition, there are mandatory conditions of probation that must be imposed in every case such as domestic abuser classes, fines and the fact that a person convicted of any of these crimes can no longer own, possess or use a firearm.

There are many other crimes that fall under the “Domestic Violence” umbrella because the law allows the DA to classify any violent crime against a person with whom you have had a dating relationship a DV offense, however the two discussed above are the most common.

Torrance Criminal Defense Lawyer Matthew Ruff has nearly 30 years experience fighting domestic violence charges. Matt has obtained acquittals, dismissals, and all manner of reductions of these types of crimes. For more information about your particular case contact Matt directly for a discreet consultation and strategy session.

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I Got A DUI in Texas But I Am Moving To California, What Will CA Do?

Here is the scenario: Client has a pending DWI in Texas. He currently has a Texas Driver’s license but he is living in California.  If he sits out his 6 month license suspension in Texas and then Applies for a California license, will California give him a License and 2) will he be required to have SR-22 insurance in California 3) and if so how long? 

He should apply for a CA license before his TX license gets suspended.  CA would only then suspend his CA license if it picks up on the TX suspension—that won’t likely happen unless the CA DMV has some reason to run his driving record (Texas won’t report it out because he wasn’t license in CA at the time of the incident).

California is not going to require anything of him because the incident happened before he was licensed in CA.  However, he will want to get the TX suspension lifted asap and keep it lifted by maintaining the SR22 for the two years required on the Texas DUI case.

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Motion To Exclude Use Of Term “Drug Recognition Expert” (DRE) at Trial.

A Drug Recognition Expert (DRE) is a cop who has taken a specialized training course. According to the training manual, “The Drug Recognition Expert course is a series of three training phases that, collectively, prepare police officers and other qualified persons to serve as drug recognition experts (DRE).”. See NHTSA DRE Training Manual R5/13. DRE cops are used extensively in criminal cases where a DUI is charged involving drugs.

However, the term “Expert” has a very specific meaning in a legal context. In California a witness testifying in the form of an opinion may state on direct examination . . . his special knowledge, skill, experience, training, and education) upon which it is based . . . . . The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” (Evid. Code, § 802.).

Under California law a DRE must qualify as an expert under the evidence code and present a proper foundation, i.e., “a description of the DRE’s training, education, and experience in administering the test, together with a showing that the test was properly administered.

In many DUI cases police officers are referred to as Drug Recognition Experts by the District Attorney. This title should be objected to and the DA should be admonished to not use the title “expert” when referring to such witness before the jury.

To allow the officer The title of “Drug Recognition Expert” usurps the Court’s sole discretion to qualify expert testimony.

More importantly, it unduly suggests to a Jury that they should give the DRE more weight and credibility than they would other witnesses – infringing on their fact-finding function.

Instead of referring to the witness as an expert, you may want to propose an alternative such as “Drug Recognition OFFICER” or “Drug, Recognition EVALUATOR” as substitute titles for the police officer.

Ultimately it is up to the jury to decide if a witness is an “expert” or not. You should not allow the prosecutor to brain wash the jurors into believing he or she is. If the Court allows the witness to be called an expert it gives the jury an impression that the Court has endorsed this witness and cloak he or she with credibility before the jury ever considers the evidence.

Some of the most damaging evidence in a drug DUI case (DUID) will come from the DRE, it it important to try and neutralize that evidence whenever possible. Asking the Court to refrain from using a prejudicial term when referring to said witness is a good start.

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