May 18, 2011

Last week, I explained how some Bay Area drivers may be able to avoid a DUI conviction because their preliminary breath tests, called PAS tests, were performed with the defective Alco Sensor V.

The Peninsula’s Daily Post now reports that officials in Palo Alto have “narrowed” the affected cases in their city to 50.

San Mateo District Attorney Steve Wagstaffe was quoted as saying that there are no cases in San Mateo County that are affected by the Alco Sensor V. Ironically, San Mateo’s fiscal crisis may have “saved” DUI convictions in San Mateo County. Apparently, all the police agencies is San Mateo County use the older, cheaper and more reliable Alco Sensor IV, for the simple reason that they cannot afford the newer, more expensive and fatally defective Alco Sensor V.

As I have said many times on radio and TV, breath tests are based on voodoo science. In my experience, breath test DUI’s can often be effectively defended. The only difference now is that even the voodoo scientists are saying that their voodoo science isn’t working!

Anyone who has had a recent DUI charge in Santa Clara County should contact his/her attorney to determine whether his/her case may be affected. If yours is one of the cases affected, and the DA won’t offer some relief, you should talk to an experienced attorney about a motion to dismiss, a motion to withdraw your plea, appeal or writ of habeas corpus, depending upon the current status of your case.

Law Offices of Dean Johnson

Call 650-216-7155 for a free consultation.


Dean Johnson Explains Why Many California Dui Suspects May See Their Cases Dismissed

May 18, 2011

Many people who are, or have been, charged with Driving Under the Influence (also known as “drunk driving,” “DUI,” or “DWI”) may be able to get their charges reduced or see their cases dismissed altogether.

The District Attorney in Santa Clara, California, which includes San Jose, Palo Alto, Mountain View, Los Gatos and other communities, has announced that the mini breath test, called a “preliminary alcohol screening device” or “PAS test,” that was administered to drivers soon after they were stopped by police may have been defective.

The PAS test is a hand held device that police use as “field sobriety test” to determine whether to arrest someone who is suspected of drunk driving. The PAS test is administered at the scene of the arrest, and so is the first, and sometimes the best, measure of a person’s alcohol level at the time of driving.

The PAS test is not the same as what we commonly call a “breathalyzer.” The “breathalyzer” or “intoxilyzer” is a much more elaborate machine. The breathalyzer is administered after the arrest, when the suspect is taken to the police station or jail.

As I have said many times on radio and TV the science behind the breathalyzer is very shaky, and our office has been able to win many, many breathalyzer cases. But that is a story for another time.

Arrestees have the right to refuse the PAS test and to police are supposed to advise the arrestee of that right. Suspects do not have the right to refuse a breathalyzer. When at the station or jail, the suspect must take a breath or blood test (even if they have previously taken the PAS test). Refusal to take the blood or breath test is called a “refusal.” A refusal to take the test can be used against the suspect at trial. It also carries a longer jail term, and a longer license suspension with the DMV.

The Santa Clara DA learned recently from Alco Sensor, the manufacturer of the most popular PAS test, that their latest model, the Alco-Sensor V, is defective and is being recalled.

The DA is now notifying attorneys who represented defendants in cases involving the Alco-Sensor V of the problem. It is unknown what the DA will offer these cases. However, the PAS test is often a critical piece of evidence in close cases. Without that evidence, the DA’s case could become much weaker and the DA may offer a reduced charge (sometimes called a “wet reckless”) or may dismiss the case altogether. (The wet reckless is often a good deal because it carries no jail, requires only a small fine and does not lead to suspension of the driver’s license by the DMV.)

The DA also said that the defective Alco-Sensor V’s were used by the Palo Alto Police. The DA’s Palo Alto office is looking into an unknown number of cases there.

Most Police officer use the older Alco-Sensor IV, which has not experienced any problems (that we know of).

Ventura and Los Angeles Counties have also experienced problems with the “erractic” performance of the Alco-Sensor V.

People who were recently charged with a DUI in Santa Clara County (or other counties for that matter) should contact their attorneys to determine whether their case was an Alco-Sensor V case, and, if so, what can be done about the case. If the DA doesn’t give some relief, defendants should consider a motion to withdraw plea, motion for a new trial, appeal, habeas corpus or other remedies, depending upon the facts and status of your case.

People who have been charged with a DUI in Ventura, Los Angeles and other Counties should do likewise

Law Offices of Dean Johnson

Call 650-216-7115 for a free consultation.


May 3, 2011


The case between the NFL and it players is important for football fans and for all fans of pro sports, but it may also have dire implications for the labor movement.

First, the outcome could decide whether there will be a football season at all.

Second, and perhaps of lesser importance to some people, both the players and the league are playing a very dangerous legal game. They are raising issues that could affect the future, not only of pro sports, but of all of organized labor.

The entire litigation is a bargaining ploy by both sides designed to give them leverage in contract negotiations.

To understand the legal background, you have to know a little labor history. Here it is in a nutshell:

1. Labor law and Antitrust Law potentially conflict with one another. Antitrust Law, specifically Section 1 of the Sherman Antitrust Act prohibits “all contracts, combinations and conspiracies in restraint of trade.” Theoretically, both unionization and sports leagues violate antitrust laws. When union members combine into a single organization-a union-to negotiate wages, and when employers bargain exclusively with a union, both employers and employees are engaged in a “combination in restraint of trade.” When team owners form a league, refuse to hire any players except through a draft, and set salary caps, they are engaged in a classic “combination in restraint of trade.”

Yet, recognition of unions and collective bargaining are not only allowed, but required, by federal law.

Congress resolved this conflict in part by granting an exemption from the antitrust laws for employers who bargain with a union. The courts have also granted a partial exemption from the antitrust laws for labor related activities.

A Union must be “certified” by the NLRB in order to become the exclusive bargaining unit for a group of workers. Workers can also “decertify” a union, if they no longer wish to be represented by a union. If there is no certified bargaining unit, the antitrust exemption goes away. In other words, if there is no certified union, each employer must bargain with each individual worker as to wages and working conditions.

For pro sports, this means, effectively, no player draft. Each team is free to bargain for the service of any player at any price.

2. Injunctions have traditionally been used as a weapon by management to stifle actions by employees. Historically, employers who were faced with a strike, or with threatened unionization, would seek and obtain injunction prohibiting collective action by their employees.

For this reason, the Norris-LaGuardia Act and other provisions of federal Labor Law prohibit Federal Courts from issuing injunctions in labor disputes.

In March, NFL players started this battle by decertifying the NFL Players’ Union. This meant that the NFL’s antitrust exemption went away. Players, led by quarterback Tom Brady, then sued the NFL for antitrust vioaltions.

The NFL treated the action as a strike, and locked the players out.

Players then argued to the Minnesota District Court that they would suffer “irreparable harm” from the lockout, and so asked for an injunction. The League responded that this was a labor dispute, and that, therefore, the federal court could not issue an injunction.

The trial judge disagreed. She said that this was an antitrust dispute, not a labor dispute and that, therefore, she could issue an injunction. So she enjoined (stopped) the lockout.

The league went to the Eighth Circuit Court of Appeals.** The court temporarily lifted the injunction. The decision was 2-1. So the bottom line is the lockout is back on for now.* But, the Eighth Circuit has yet to make its stay permanent. The Court will hear arguments from both sides before it decides. The future of the football season could hang in the the balance.

But there is a lot more at stake than one football season. The game that is being played here is dangerous for both sides, for pro sports and for labor-management relations everywhere. Pro football, and pro sports in general, have long feared the loss of the antitrust exemption. If the players’ tactic is successful, it might well be followed by players in other sports. The loss of the Antitrust exemption could make pro sports leagues unworkable.

The injunction is traditionally a weapon used by management against labor. If the players are successful in convincing the Eight Circuit that the injunction is available in labor disputes in certain contexts, they see it used against them, against players in other sports and against union members everywhere.

Both sides are aware that they are playing a high-stakes game of chicken, with potentially disastrous consequences. Neither side wants to kill the goose that laid the golden egg, but, with $9 Billion dollars in revenues at stake, games of brinkmanship can get out of hand.

The eighth circuit will set briefing schedules shortly to decide whether the their stay should be made permanent.

The case can be followed on PACER.

The case is Appeal No. 11-1898 Tom Brady, etc., al v. National Football League, et al..

*If this confusing process of injunctions, stays, stays of stays and so on on sounds familiar to those of us in the Bay Area, it is because we went through the same thing in the Prop 8 litigation. By the way, David Boies, counsel for the Prop 8 plaintiffs, also represents the NFL in this case.

**The choice of the Eighth Circuit as the venue for this case may be strategic. The Eight Circuit was the first to articulate the Mackey test. This test restricted the application of the NFL Antitrust Exemption.

Will Barry Bonds do jail time?

April 26, 2011

ABC7 Sports Director Larry Beil and legal analyst Dean Johnson discuss the outcome in the Barry Bonds case.

Law Offices of Dean Johnson

Dean Johnson previews Bonds closing arguments

April 26, 2011

ABC7 legal analyst Dean Johnson previews closing arguments in the Barry Bonds trial.

Law Offices of Dean Johnson

Bonds friend: I saw Barry and trainer with syringe – No Smoking Gun

April 26, 2011

“There’s no smoking gun here. There are statements from which one could infer that Greg Anderson is injecting people with some unknown, unspecified, undetectable substance. There are statements where one could infer that Greg Anderson is injecting Barry Bonds,” said ABC7 legal analyst Dean Johnson.

Law Offices of Dean Johnson

Dean Johnson on why ‘Bonds’ trainer Greg Anderson refuses to testify again’

April 26, 2011

Also on Tuesday, Bonds’ former trainer and childhood friend Greg Anderson was called to testify against Bonds and refused again.

“Clearly somebody who has already done over 18 months on the various times he’s gone in is not going to be affected by two weeks, so from a pure legal standpoint, I think it’s the theater of the absurd,” said Mark Geragos, Anderson’s lawyer.

Geragos says sending Anderson to prison goes beyond legal bounds designed to convince someone to testify and crosses over into punishment, which is not allowed in this situation. And he said Anderson is not refusing to testify to protect Bonds, but because feels prosecutors have lied to him.

“They didn’t play fair. He’s not going to play their game. It’s as simple as that,” said Geragos.

ABC7 legal analyst Dean Johnson thinks there might be another reason.

“If I were one of his defense attorneys, I would be pointing the finger at Greg Anderson saying, ‘This is the man who slipped the steroids to Barry Bonds. This is the man who ruined baseball.’ And Anderson doesn’t want to have that label placed on him,” said Johnson.

Law Offices of Dean Johnson