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SFFD Officer get DUI Dismissed due to bad machine calibrations

On Behalf of | Mar 22, 2015 | Firm News |

Do you just believe because the machine told you so that is what it is?  The breath instruments used in San Diego DUI cases are pretty complex.  You are getting a blood result from a puff of air.   There is already a myriad of issues that need to be examined.  Here, a judge reviewed the evidence and determined the machine was not properly calibtrated.  It is what it is.  The machine determination is not the gospel, especially when the machine is not kept up to standards.

This issue was only found through hard work and effort from an attorney.   They brought this issue to light.  This is the way law should be handled.  This is not someone getting off…this is a citizen who was accused and the state’s evidence could not survive scrutiny.


A San Francisco judge on Friday tossed out the case against a former city firefighter accused of driving drunk when his fire rig struck and badly injured a motorcyclist, ruling that police lacked the legal justification to arrest him.

In one final twist in an already tangled case, Superior Court Judge Kay Tsenincited delays and bungling by police in ruling that officers had no probable cause to arrest Michael Quinn several hours after his rig struck motorcyclist Jack Frazier.

Frazier, now 52, was thrown into a fire hydrant when the rig hit him late on the night of June 29, 2013, at Fifth and Howard streets. He suffered extensive injuries to his ribs, hip and ankle, and has a lawsuit pending against the city.

Quinn, now 44, was indicted in March 2014 on three drunken-driving-related counts – two felony charges of driving under the influence causing injury and one count of driving a commercial vehicle under the influence causing injury.

Quinn left the scene about 30 minutes after the 11:33 p.m. crash and did not show up at the fire station at Second and Howard streets, where he worked, until two hours after the incident. Sources told The Chronicle that a surveillance camera in bar near the crash had filmed him guzzling water before he returned to the station.

Quinn failed two Breathalyzer tests at the station that were administered by the Fire Department, according to testimony in the case. Police investigators, however, did not do a blood test until after 6 a.m.

By then, Quinn’s blood alcohol level was put at 0.11 percent, above the legal driving limit of 0.08 percent. Fire Department rules prohibit drivers from driving if their blood alcohol level is above 0.04 percent.

Prosecutors told a grand jury that Quinn’s blood alcohol at the time of the crash could have been as high as 0.31 percent, based on estimates of his metabolic rate.

But Tsenin dismissed the two Breathalyzer tests as unreliable because the Fire Department had not properly maintained, calibrated and tested the equipment. Those tests showed Quinn had blood-alcohol readings of 0.18 and 0.16 percent, according to the testimony of fire officials who administered the tests.

Tsenin then ruled that there was not enough evidence for police to arrest Quinn before they gave him the blood-alcohol test, given the delay of more than six hours before officers administered it. That delay meant police had no way of knowing whether Quinn had been drinking before the accident or after, the judge said.

Quinn, who had been out on bail, walked out of court cleared of all charges.

“I’m very happy we finally had the opportunity to present the facts and have the layers of this particular circumstance get peeled back and revealed for what it really was,” said James Bustamante, an attorney for Quinn. “To charge somebody in the circumstances in which they did, in my view, was an injustice.”

Bustamante said prosecutors should have taken the case to a preliminary hearing, not a grand jury. Defense attorneys can present their own witnesses at a preliminary hearing, something that does not happen in grand jury proceedings.

“They did it because they thought they were burying Quinn by the grand jury and over 1,000 pages of testimony which went unchallenged,” Bustamante said. “It is refreshing to be in front of a detached magistrate who is not swayed by politics or a one-way shot – that’s the way this thing is supposed to work.”

Alex Bastian, a spokesman for District Attorney George Gascón, said prosecutors might still pursue the case. “We completely disagree with the judge’s ruling and are exploring all appellate options,” he said.

Quinn resigned from the department soon after the incident. Assistant Chiefs Art Kenney and Dave Franklin were suspended for 10 and eight days, respectively, for their handling of the incident.

Patrick Gunning, one of Frazier’s lawyers, expressed disappointment at the outcome of the criminal case against Quinn.

“The evidence strongly supports that Mr. Quinn was exceedingly intoxicated while driving a fire engine, and he should face the consequences of his actions,” Gunning said.

Mindy Talmadge, spokeswoman for Fire Chief Joanne Hayes-White, said the chief had no comment.

The full article can be found here.

Hire a Proactive, affordable, and quality defense when you are facing San Diego DUI charges.  Whether you have been charged of a Lakeside DUI, Lemon Grove DUI, National City DUI, Cardiff DUI, Racho Santa Fe San Diego DUI, Rancho Bernardo DUI, Spring Valley DUI, Solana Beach DUI, Leucadia DUI, Golden Hills DUI, North Park DUI, Torrey Pines DUI, Eastlake DUI, Paradise Valley DUI, San Diego DUI, Poway DUI, Chula Vista DUI, La Mesa DUI, Santee DUI, Mission Valley DUI, Clairemont DUI, Point Loma DUI, La Jolla DUI, Carmel Valley DUI, Mira Mesa DUI, Pacific Beach DUI, Del Mar DUI, Encinitas DUI, Oceanside DUI, Ocean Beach DUI, Escondido DUI, Vista DUI, San Marcos DUI, Carlsbad DUI, El Cajon DUI, San Diego Expungement, San Diego Bench Warrant, San Diego Failure to Appear, San Diego Restraining Orders, San Diego Terminate Probation, San Diego Minor Possession of Alcohol, San Diego Probation Violation, San Diego Prop 47, it is vital you need to hire an attorney who knows how to defend your rights and can determine if the government can prove their case.  Contact the Law Office of Mark Deniz now for a free case evaluation at 858-751-4384 or send an email to [email protected].

Lets begin…First, title 17 requires that your blood or urine sample be retained for one year so that you may have it retested at a later time by an independent laboratory.

Title 17 of the California Code of Regulations establishes the protocol for how this state will administer, collect, store, and analyze San Diego blood and breath tests. when used as evidence relating to charges for Vehicle Code 23152(b) driving under the influence with a BAC of 0.08% or greater.

Any failure to comply with Title 17’s regulations could result in inaccurate blooc alcohol levels.  These need to be examined.

Title 17 and California DUI blood tests

Title 17 sets forth the requirements for California DUI chemical testing. With respect to California DUI blood tests, the most common Title 17 violations include (but are not limited to):

  • having an unauthorized technician perform the blood draw,
  • using an alcohol-based cleaning agent to sterilize the draw site,
  • having an insufficient amount of anticoagulant or preservative in the blood vial (these are placed in the vial to ensure that the blood sample doesn’t clot or ferment, both of which could produce false high BACs),
  • using a vial with expired anticoagulant or preservative,
  • not properly mixing the blood sample with the anticoagulant and preservative, and/or
  • not properly storing the blood sample.

Although experts believe that DUI blood tests are the most reliable of the three California chemical DUI tests, a Title 17 violation still leaves the BAC open to attack.

Blood test results are by no means 100% accurate. Errors in the preparation, collection, and storing of the sample frequently occur. As a result, a skilled DUI lawyer can often have inaccurate results excluded from evidence.”

Title 17 and San Diego DUI breath tests

With respect to San Diego DUI breath tests, Title 17 requires

  • that the breath sample comes from deep lung air (otherwise known as “alveolar air”),
  • that the person providing the sample is observed for at least 15 minutes prior to his/her breath sample,
  • that during that time, the person doesn’t eat, drink, smoke, vomit, or regurgitate, and
  • that the breath testing instrument is calibrated every ten days or 150 uses (whichever occurs first).

Title 17 imposes these safeguards to ensure that DUI breath tests are as accurate as possible. Any violation could result in a false reading.   Mouth alcohol fools California DUI breath testing instruments by replacing deep lung air with residual alcohol that lingers in the mouth. Although it’s true that most mouth alcohol will dissipate during the fifteen minute observation period that Title 17 requires, that’s not always the case.

A common occurance is the presence of GERD. GERD (a type of acid reflux) continuously produce mouth alcohol. Because this is a constant process, a person with GERD doesn’t necessarily display any physical signs which would be apparent to the officer during the observation period.

This is a critical fact that your DUI attorney will address when fighting a San Diego DUI, because it means that GERD can also cause a false high BAC on a DUI breath test.

Another significant violation that can lead to questionable BAC results relates to the maintenance and operation of the breath testing instrument. If, for example,

  • the breath testing machine wasn’t properly calibrated, or
  • the operator wasn’t properly trained on how to operate the specific breath testing instrument, then  the accuracy of your BAC results could have been compromised.

This is just a few issues that need to be examined in a San Diego DUI case.  Call  858-751-4384 now to be proactive and get started.  We offer free consultations.

You can begin a free DUI case evaluation here.

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