Breathalyzer "Science" Shown Defective

Breathalyzer “Science” Shown Defective

Accuracy of science behind Breathalyzer tests provides defense in DUI cases

In the landmark case, People v. Timmie Lance McNeal, the California Supreme Court recognized that Breathalyzer tests produce variable [and inaccurate] results for different people, and unanimously ruled that juries can consider the accuracy of Breathalyzer tests to rebut the presumption of intoxication in DUI cases.  This ruling represents a major victory for California DUI defense attorneys, who have long-held the “science” used in Breathalyzer tests is highly questionable. 

Henry’s Law

Breathalyzer devices measure the amount of alcohol vapor in a person’s breath (presumably representing the level of alcohol contained in the person’s lungs, after being consumed, absorbed in the blood, and circulated throughout the body), and use a breath-to-blood ratio to convert the breath-alcohol level to an estimated blood-alcohol level.  Currently, a nationally accepted scientific formula, known as “Henry’s law,” is used to accomplish this breath-to-blood conversion.  However, the problem is that breath-to-blood ratios vary greatly from person to person, and are influenced by many factors which are not taken into account by the Breathalyzer devices – such as body temperature, atmospheric pressure, medical conditions (such as the person having a lung condition, like asthma, or only having one lung) and the precision of the measuring device.  In other words, the same Breathalyzer result for one person could show severe intoxication, while for another person it could show complete sobriety! 

California’s DUI Law

The Supreme Court’s holding in McNeal resolved inconsistencies between California’s two different DUI laws, where results from Breathalyzer tests under one law simply establish a presumption of intoxication, whereas in the other law, those same results define legal intoxication (essentially creating an irrebuttable presumption). 

Law 1 – Presumption of Intoxication.  California’s first DUI law requires proof that a driver was intoxicated, such as slurred speech and bloodshot eyes, and Breathalyzer tests may be used to establish a legal presumption of intoxication – jurors may presume someone is drunk if the Breathalyzer test shows a blood-alcohol level of at least 0.08 percent. 

Law 2 – Definition of Intoxication.  California’s second DUI law, passed by the Legislature in 1981 and updated in 1989, defined a drunk driver as someone with a blood-alcohol level of 0.08 percent, regardless of the person’s behavior or appearance.  Then, a 1994 Supreme Court decision extended that definition to include Breathalyzer results – meaning Breathalyzer tests showing a blood-alcohol level of at least 0.08 percent provide definitive evidence of legal intoxication.  The effect of this 1994 ruling was to bar drivers charged with this second law from attacking the accuracy and variability of Breathalyzer tests. 

Since this ruling, DUI defense attorneys have been unable to dispute Henry’s law as a basis for challenging the breath-test results or defending against DUI charges. 

McNeal Decision

In its unanimous decision, Justice Carol Corrigan explained that “defense evidence is relevant to rebut the presumption that the defendant was intoxicated, but not to remove the presumption altogether.”  Prosecutors believe this ruling will seriously hamper their ability to win convictions in DUI cases. 

The takeaway is that the Supreme Court’s decision in McNeal essentially overrules previous laws restricting DUI defense strategies, and provides drivers with an extremely strong weapon in their arsenal to combat DUI convictions.  If you’ve been charged with a DUI based on a Breathalyzer test, especially if your test results are very near the legal limit (0.08-1.00 percent), don’t wait – contact us today! 

How to Get a Liquor License in California

How to Get a Liquor License in California

The First Step to Starting a Bar

Many people dream of starting and owning their own restaurant or bar.  Especially in the City of Angeles, owning a restaurant or bar carries a very distinct level of acclaim, panache, and sophistication.  However, while the concept itself is exciting to most, the work required in simply starting the process of opening a restaurant or bar is confusing, complicated, expensive, frustrating, and fraught with pitfalls!

The first step in starting any successful restaurant or bar is acquiring a liquor license.  In the State of California, the Department of Alcoholic Beverage Control (ABC) controls the issuance of liquor licenses.  While the process of acquiring a liquor license is multifaceted, complicated, and infinitely varied based on the type of establishment you wish to operate (e.g. bar, club, restaurant, etc.), the general steps to acquiring a liquor license are as follows:

1.       Control a Business Location

2.       Obtain Zoning Permits

3.       Buy Liquor License

4.       File Liquor License Application

Step 1 - Control a Business Location

The first step in acquiring a liquor license is obtaining control over an actual business location.  The ABC will only issue a liquor license to a real, physical retail location, and the basic ABC requirements for controlling a business location are as follows:

1.       Commercial Location - the proposed location for license must be a commercial location (no residential units allowed).

2.       Own Property - you must own the property for the proposed location, or have a lease agreement granting you right to control the proposed location.

3.       Name of Entity on Deed - the name on the property (or lease) must be in the name of the entity (e.g. corporation, partnership, LLC, etc.) who will apply with the ABC for a liquor license.

As stated above, the ABC will require proof that you have control over your proposed business.  However, even if you don't currently own or lease a location, you can still apply for a liquor license by providing the ABC with a signed lease for a business location, or a "letter of intent" with a prospective landlord to lease a commercial location. [Note, to reduce your risk, you should sign your lease so that it is subject to the final approval of your liquor license application.]

Step 2 - Obtain Zoning Permits

The second step in acquiring a liquor license is to comply with any local zoning regulations and obtain zoning permits that may be required by your city.  These zoning permits are generally called "Conditional Use Permits" (or "CUPs").

Zoning Permits

In order to find out if your city requires a zoning permit for the sale of alcoholic beverages at your business location, you will need to contact the zoning department of your local city or county and speak with a planner.  The planner will research the location's zoning information and tell you whether a zoning permit is required for your location. If a zoning permit is required, you will need to prepare and file a zoning application with the city or county - a task that requires the drafting of specialized maps, careful research, notification of local residents of your application, negotiation and the preparation of a written application. You may even have to attend a public hearing before the zoning board to make a case as to why your business should have the right to sell alcoholic beverages.

Zoning Affidavit

The ABC liquor license application requires that the applicant also file a "Zoning Affidavit" (ABC Form 255), indicating whether or not your local city requires a zoning permit for your business location.  Due to the complexity involved in acquiring the necessary zoning permits in any given city or county, it is strongly advised that you get professional help for this step. 

Step 3 - Buy Liquor License

The third step in acquiring a liquor license is actually buying a license from a private seller.  The State of California no longer issues hard liquor licenses, and therefore, these licenses can only be acquired by finding someone in your county who is willing to sell their license to you.  You can use a liquor license broker or try to negotiate the purchase of one directly from a private seller.

Additionally, the State of California requires an escrow account to be opened for the transfer of the liquor license (regardless of whether the liquor license is purchased through a broker or directly from a private party).  This liquor license escrow is not the same thing as a real estate escrow, and has a unique set of escrow requirements mandated by the ABC.  There are several escrow companies throughout California that specialize in liquor license transfers.

Step 4 - File California Liquor License Application

The fourth, and final, step in acquiring a liquor license is actually filing the liquor license application with the ABC.  The type of application you file depends on the specific type of business you intend to operate (e.g. those intending to start a bar could apply for License No. 40, which allows for On Sale Beer, whereas those intending to start a restaurant could apply for License No. 41, which allows for On Sale Beer & Wine at a "bona fide eating place").

After successfully filing your liquor license application, you will need to notify the surrounding community that you are applying for a liquor license.  The ABC requires three forms of notification:

1.       Building - posting a notification on your building for 30 days.

2.       Mail - mailing an official ABC notification to residents within 500 feet of your business.

3.       Newspaper - publishing a public notice in a local newspaper.

As you can see, the process of acquiring a liquor license - one step in a myriad of steps required to successfully start a restaurant or bar - is infinitely complex and highly specialized.  If you are thinking of starting a restaurant or bar, please contact us immediately!  We will provide you with ongoing representation and start-up document preparation - we will prepare all of the ABC documents (other than escrow documents) required by the ABC for a complete application, gather the required information from you and then carefully prepare your application paperwork for filing with the ABC.

The Gorbals

The Gorbals

501 S. Spring Street, Los Angeles, CA 90013

For those of you who know me, you know my favorite type of bar is a speakeasy, and more generally, anything hidden/obscure.  Not those cheesy knock-offs claiming to be "speakeasy-esque", where the interior is made to look like a 1920's Prohibition-style underground drinking den, but the actual bar happens to be located on a major street with a giant neon sign reading something insulting like, "Speakeasy Bar".  [So much for "speaking easy", I guess.]  No, what I'm talking about is the kind of place where you have to walk down a hidden dark alley, around a few homeless guys and a dumpster with used heroin needles, down a sketchy flight of stairs, to a closed iron door where you need a secret password to get in, and then just when your date's about to mace you and run for her life, the large door opens and you escort her into a dimly-lit upscale establishment where the staff knows what they're doing and does it well.

So, The Gorbals of DTLA isn't quite that extreme; it isn't a speakeasy, nor does it claim to be.  But on a weekday night, it ranks very high on my list.  [I say "weekday," because the restaurant is located in the trendy/upcoming area along Gallery Row (5th & Spring), which can be pretty crowded and overrun with hipsters on the weekend; but mid-week, the scene's completely different and you're anxiously aware of how close you are to Skid Row.]

The Gorbals is located inside the lobby area of the historic Alexandia Hotel - one of Downtown Los Angeles' most notable landmarks, built in 1906 and formerly lauded as one of the most luxurious hotels in the country (frequented by Winston Churchill, William Taft and Theodore Roosevelt, to drop a few names), but recently renovated and currently serving as a low-income housing project.  The restaurant itself is marked only by a subtle, almost hidden sign, displayed above a thick wooden door, which is usually closed (making you think, "If there was a restaurant here, it's closed").  The door opens into a dimly-lit, simple yet romantic, small but uncrowded restaurant, with a modern looking stainless steel bar wrapping around the quaint room, accompanied by funky wooden art pedestal bar stools, large wooden communal tables, and a collection of small candlelit tables scattered throughout the darker areas atop the century-old tiled floor.

The restaurant was created by owner/chef, Ilan Hall, best known as the winner of the 2nd season of Top Chef, so you know the food's good. The place itself, as well as its food, was inspired by the Gorbals - a slum-like neighborhood in Glasgow, Scottland, where Hall's father had grown up; the kind of place widely known as a dangerous melting pot of poor immigrants (mainly Jewish, Indian and Pakistani) and multi-cultural food.

Likewise, The Gorbals is an amalgam of many different ethnicities and tastes, not limited to a certain style or cuisine, and is self-described as "Scottish, Jewish, Spanish, American; it is haggis burgers, paella, chicken skin sandwiches, gefilte fish 'n chips, and bacon-wrapped matzoh balls."

The menu offers a host of interesting and eclectic options (the bacon-wrapped matzoh balls are hugely popular), as well as a full bar, serving beer, wine, spirits and specialty cocktails.  So whether you're looking for a romantic dinner, a late night snack, or just a drink, The Gorbals has it all!

Oh, and for extra fun, make a right after leaving the restaurant, walk into another hallway, make a quick left up an unmarked flight of stairs [as though casually walking to someone's apartment], follow the music through another door, and you'll literally stumble into The Mezz - a hidden burlesque/jazz bar on the 2nd floor of the Alexandria.

All in all, The Gorbals has a great mix of ingredients that makes for a truly unique experience: a diamond-in-the-rough feel just outside Skid Row, hidden behind a closed door inside a blighted historic landmark currently serving as a housing project; upscale yet unpretentious; artsy but simple; dark hallways, corridors and unmarked stairs... For 2012, make this place a must.  And while you might be tempted, you probably won't need your mace.