California Criminal Lawyer Blog

Whenever an immigrant is involved in a criminal law proceeding, the type of plea or sentence imposed can cause severe consequences for a person's immigration status. Criminal law practitioners play a crucial role in ensuring that a defendant's immigration status is protected during the life of the criminal proceeding. The main way that a criminal defense lawyer can assist in this type of matter is to obtain a sentence modification (for cases where the sentence is already imposed) to avoid the negative effects of a specific judgment.

A sentence modification is a very powerful tool in the arsenal of a criminal lawyer defending an immigrant. If one is able to obtain an order reducing even credits (for in custody time) can open a door for specific types of relief through the immigration court. Obtaining waivers can help defend in removal (deportation) proceedings as they may totally invalidate the government's case for removal based on a conviction for an aggravated felony.

If a sentence modification is not possible, the attorney is left with the more arduous task of seeking to vacate a sentence. This requires an attack on the conviction itself by establishing that a ground exists to demonstrate the invalidity of the sentence or plea. This type of attack requires strong legal support to be successful.

Therefore, in most cases, your criminal defense counsel or Sacramento immigration lawyer will need to make a solid attempt to resolve any potential issues through the path of least resistance which is the sentence modification. In most cases, counsel should not encounter many obstacles in obtaining a sentence modification. Prosecutors like that the original sentence is not disturbed so it will not prompt heavy resistance from the opposing counsel. Thus, sentence modifications should be employed when possible to give the immigrant the best chance at maintaining lawful status in the U.S.

Jon Alexander, the elected District Attorney of Del Norte County, recently faced the California State Bar Court for allegations of professional misconduct. Seven charges of misconduct were issued against Alexander last year for various occurrences that transpired during his time as the DA. One of the charges relates to an event where Alexander allegedly spoke with a represented defendant about a case without defense counsel present. Other alleged offenses include failing to disclose potentially exculpatory evidence.

Alexander's professional license defense was reportedly void of any sign of remorse or recognition of misconduct. This seems to have factored heavily in the court's decision as the judge pointed out that his claims of discriminatory prosecution were without support. The judge also noted that Alexander's supporters did not fully comprehend the gravity of the situation.

Based on the showing by prosecutors, Judge Lucy Armendariz dismissed four of the charges, but also ordered that Alexander's law license be placed on inactive status. The judge also recommended that he suffer disbarment. Alexander still has the ability to request a review of this decision within 30 days. He released an email which suggests that he is considering taking this step. For now we will have to wait to see how the case plays out in the near future.

News spread on Tuesday, January 15, 2013, that another shooting resulted in loss of life. This time a Galt police officer was shot and killed as he was reportedly responding to a burglary call. As of 3:00 PM the officer's name has not been released. Reports indicate that after shooting the officer, the suspect turned the gun on himself.

Little detail is known at this point about the circumstances that led to this tragic event. Many questions will arise later such as: why did he do it? or where did the gun come from? was it legal or not?

Following recent mass shootings and what appears to be intensified gun violence, the nation is in the middle of a gun debate. California is not particularly known as a gun friendly state with gun laws that many perceive as too restrictive.

Some of the more recent new laws in California include:

1. A prohibition against the open carry of unloaded handguns in public (2012)
2. A prohibition against the open carry of unloaded long guns in public (2013)
3. Permission for cities to enact stricter controls on manufacturing and sales of imitation guns (2013)
4. Requirement to register long guns (new in 2014)

The California legislature is on track to pass as many laws as possible. Perhaps they should focus more on running an efficient government in Sacramento.

Continue reading "Gun Violence In Galt - Officer Dead" »

Several Sacramento media outlets have recently reported that Michael Joseph Chavez, age 33, has been found in Mexico, has been extradited, and is now sitting in the Sacramento County Jail. Those same sources refer to the man as someone who fled Sacramento in order to avoid prosecution of child molestation and child abuse charges. The apparent assumption is that since he left Sacramento, he must be guilty. It is unfortunate that many of Sacramento's news outlets forget to mention that an accused is presumed innocent until proven guilty.

The presumption of innocence is the cornerstone of our criminal justice system.This presumption forces the government to prove someone guilty beyond a reasonable doubt, the highest standard of proof in the land. The reason for the high standard is to try to prevent innocent people from being convicted of crimes. The standard of proof reflects a very real and healthy distrust of the government.

Does flight to avoid prosecution indicate a guilty conscience? When I was a prosecutor my answer was resounding "yes." Now, as a defense attorney, I've experienced the system on both sides and my answer has changed. No, I'm not trying to protect any current clients here and I haven't been brainwashed by defense ideology. I've seen however how the system can bring serious criminal charges against innocent people. Even in cases that eventually end up being dismissed, people's lives, professions and reputations are being marred by arrest records. Now that I have experienced "the other side" I can say that flight to avoid prosecution can mean a guilty conscience, but not always. People wrongfully accused of horrific crimes such as child abuse or child molestation may choose to flee to avoid being in a spotlight fighting these type of charges.

You may be reading this and may think that if you were ever wrongfully accused of something so horrific as child abuse or child endangerment, you would want your day in court to clear your name. Unfortunately, that is not very realistic. People who were wrongfully accused and who have prevailed in court are not simply able to just pick up their lives from where they were prior to their arrest. No matter how many times a jury or a judge declares them "not guilty" or even "factually innocent" the stigma of the arrest and accusation never goes away.

It was the great coach Phil Jackson who once said: "Always keep an open mind and a compassionate heart."

Continue reading "Man Accused of Sacramento Child Molestation Charges Extradited " »

The attorneys and entire staff at Law Offices of David W. Bonilla are thinking of and sending a prayer to the students, teachers and all families affected by the senseless tragedy that occurred this morning in Newtown, Connecticut.

It is unfortunate that in times like these many choose to highjack the tragedy and argue their political view. There may be a time to argue about gun control and other political issues but that time is not today.

Today is a time to think, pray, mediate, be thankful and focus on family.

No, we're not in the business of encouraging criminal conduct but the old saying of crime doesn't pay proved not to be true for Sergey Pautov this week. News reports indicate that Mr. Pautov has just settled a federal civil rights case against Placer County for somewhere around $825,00.

The settlement was a result of a lawsuit filed by Mr. Pautov against Placer County after he was shot by an off-duty Placer County Sheriff sergeant in his posterior. The circumstances of the shooting involved Mr. Pautov stealing a few Scratchers lottery tickets from a Rocklin convenience store on May 29, 2011. You see, the off-duty officer shot Mr. Pautov as he was making his getaway.

Mr. Pautov brought a police abuse suit but many questions remain unanswered, like why did the officer shoot? While many people may feel that thieves should be shot on the spot, fortunately the law does not allow for that. We don't know if the officer could articulate any justification for shooting Mr. Pautov and that may have played a major role in the decision to settle the federal suit.

In California, one can use reasonable force to protect property but that force cannot rise to the level of deadly force. Shooting someone is considered deadly force regardless of where they are hit.

There were no reports of whether any of the the stolen scratchers were winners.

Continue reading "Crime Pays" »

Grigoriy Bukhantsov, age 19, is sitting in Sacramento county jail accused of the unthinkable. Grigoriy Bukhantsov is accused of killing 23-year-old Alina Bukhantsov and her children - 3-year-old Emmanuela and 2-year-old Avenir.

Reports indicate that Denis Bukhantsov, the husband and father of the victims, discovered the bodies when he arrived home on October 23. According to the Sacramento Sheriff's department the scene was so traumatizing that first responders, who are used to gruesome scenes, had to be counseled.

The sad reality is that Grigoriy is the brother of Denis Bukhantsov. According to media reports, Denis recently allowed a homeless and troubled Grigoriy to stay in the home.

Court records indicate that Grigoriy's own parents believed he was a danger. Two separate filings for restraining orders detail Grigoriy Bukhantsov's troubled mind. In the restraining order applications the parents indicate that Grigoriy made death threats.

Sacramento County criminal court records indicate that the suspect was on a prior occasion convicted of the crime of first degree burglary. The Sacramento County District Attorney's office in its complaint has alleged this prior strike conviction along with the three counts of first degree murder and the special circumstance of multiple killings.

A prior strike conviction has the effect of doubling the sentence on a new felony conviction. This may not matter in the case since a first degree murder conviction carries a mandatory life sentence. The prosecutors may still use this conviction in their decision of whether to pursue the death penalty in the present case. Many other factors, including discussions with the victim's family, will have a role in the decision regarding pursuing the death penalty.

Grigoriy Bukhantsov's defense attorneys have not made any substantial public comments regarding Mr. Bukhantsov mental status however given the circumstances, the suspect's mental health and status at the time of the killing will surely play an important role in his defense.

Continue reading "Rancho Cordova Homicides Shake Community" »

As in any criminal prosecution, Probable Cause for DUI Arrest to stop the driver of a motor vehicle may be an issue in a drunk driving case. Lacking sufficient cause, any evidence obtained as a result of the stop - which should include all evidence except observations of driving, must be suppressed. Assuming the existence of grounds for the stop, the prosecution must then justify the investigatory detention. Again, if there are insufficient objective and articulable facts upon which to warrant detaining the driver beyond a temporary stop, then a motion to suppress all subsequently-obtained evidence should be made. If successful, this will suppress all evidence but observations and statements made during the brief stop. Finally, if there existed probable cause to detain the individual for a field investigation (field sobriety tests and brief questioning) there must still exist a considerably greater amount of evidence of intoxication to warrant an arrest. (There must also exist the authority to arrest, involving the question of whether the offense was committed in the officer's presence.) Without such cause, evidence obtained after the arrest, consisting in most cases primarily of the blood-alcohol test or refusal, is subject to suppression.
In essence, this usually means in a DUI case that the prosecution must establish a considerably escalating amount of evidence at each of the three stages-stop, detention, and arrest. Lacking the sufficient quantum of evidence at any stage results in suppression of all evidence obtained thereafter.
There are, of course, thousands of federal and California cases interpreting in general terms what constitutes sufficient probable cause to justify stopping, detaining, and arresting a citizen. Certainly such authority should be used in a DUT motion to suppress. It should be clearly understood by defense counsel, however, that a "double standard" appears to exist when it comes to drunk driving situations. Put another way, both the trial and appellate courts often prove more willing to find probable cause in DUI cases than in other types of offenses.
To find out more about your rights and how to protect them contact our office at (916) 447-7842.
CA DUI Guide

In most cases, the person arrested for drunk driving will have his driver's license confiscated by the officer if he (1) takes a breath test showing .08% blood-alcohol or higher, (2) gives a blood or urine sample which will be analyzed later, or (3) refuses to be tested. He will also be given a pink sheet of paper which serves as both a notice of suspension and a 30-day temporary license. (For out-of-state drivers, the license will not be seized and the suspension will only be of the privilege to drive within California.)
It is critically important to CALL THE California DMV WITHIN 10 DAYS OF THE ARREST to request a hearing to contest the suspension; failure to do so will result in the suspension taking effect 30 days after the arrest. Requesting a hearing will also result in an extension of the 30-day temporary license, usually for another month or two depending upon when the hearing is held. Nothing is lost by requesting a hearing and a good DUI attorney has a fair chance of getting the suspension thrown out.
The California Department of Motor Vehicles is a huge bureaucracy with all of the inefficiency and incompetence that one has come to expect. The division of the DMV responsible for the "APS" suspension of licenses is the Drivers Safety Office (DSO), with branch offices located around the state. It is at these offices that the hearings will take place, presided over by a "hearing officer" -- a DMV employee without legal training who will serve as both prosecutor and judge. Without an attorney experienced in such hearings, the chances of obtaining a "set-aside" of the suspension are not good.
To find out more about your rights and how to protect them contact our office at (916) 447-7842.
CA DUI Guide

A defendant's unusual driving is often the reason an officer pulls him or her over, hence this presumably unusual driving is often the first piece of evidence offered to the jury. On the off chance that the officer did not witness the defendant's driving, lay witnesses or circumstantial inference become part of the corpus delicti. This typically happens when there has been an accident and the officer arrives after the fact.
Most seasoned prosecutors would agree that the absolute most important evidence presented in a case is the testimony from the officer on the state of the defendant's driving. However, many defense lawyers hold the level of alcohol in the blood as the most vital piece of evidence, followed closely by the assessment of any field sobriety tests.
The types of evidence have been broken down into several groups in a manual developed by one of the most prominent prosecuting agencies in California. The categories in the order of importance are as follows: driving, appearance and demeanor, field sobriety tests (FSTs), and blood-alcohol test (or refusal). The manual dubs driving behavior as the most critical and states that FSTs, "which are not generally viewed by jurors as highly persuasive," are the least important.
Consider the following illustration of a particularly incriminating testimony by the officer to observe the defendant's driving. The officer first witnessed the defendant's car traveling at a very high speed. After the officer followed in pursuit, he/she observed the driver swerve across the lane lines 4 times. From there the officer could have witnessed the driver run through a stoplight, or disregard pedestrians attempting to cross at an intersection. When the officer turned on his flashing red lights, the defendant failed to pull over for nearly a quarter of a mile. When the defendant finally pulled to the side of the road, he/she parked the car at an irregular angle to the curb. The angle could possibly be a threat to traffic passing by.
With such condemnatory evidence to begin a case, how can the defense counsel respond? Naturally, each case is unique in itself. Accusing the officer of ulterior motives for condemning a defendant is not usually the best way to go about a defense. It is often most successful when the defense tackles each observation, one at a time, and produces a reasonable justification for the defendant's driving actions; the actions that caused the officer to misconstrue that the client was inebriated.
Speeding
Tackling first the issue of speeding, one method is to inquire how many speeding tickets the arresting officer has ever issued. How many of these tickets involved drunk driving? The answer to the latter question will most likely be "none". When an officer makes an arrest for driving while intoxicated, it is unusual that they also issue a speeding ticket. The series of questions brings up issues that will later evolve into an argument for the jury.
A. Why wasn't a speeding ticket issued if the defendant was actually speeding?
B. If speeding is a common trait among drunk drivers, why is it that the officer has never issued a ticket in any of his/her DUI arrests?
C. If speeding is not, in fact, a common trait among drunk drivers, why was the officer using it as evidence that the defendant was drunk in the first place?
For apparent reasons, California DUI lawyers should not provide the officer with a window of opportunity to further explain themselves during cross-examination. The topic should be discussed during argument if it has not been covered in redirect.
If the defendant did not have an accident, the issue of speeding could be used to his/her advantage, compelling the officer to acknowledge that driving above the normal speed limit requires better judgment. Speeding also requires faster coordination and better reflexes. With this in mind, speeding, itself, is evidence of sobriety. Therefore, rather than deny that the defendant was speeding, the fact that they were speeding at all can be used to their benefit. The attorney does not need to deny everything in this case. The defendant is not being charged for speeding, but for driving while intoxicated.

Ethanol, or ethyl alcohol (grain alcohol), is one of the earliest and most widely used drugs in existence. It is a clear fluid whose low molecular weight and high solubility in water cause it to diffuse rapidly through body tissue membranes and reach equilibrium in tissues at levels proportional to water content. Blood, for example, will hold proportionately more alcohol than will muscle tissue.
The concentration of alcohol in a DUI suspect's body depends on the amount of water contained in that body. The more water present in the body, the more diluted the alcohol will become as it is absorbed into the system. And the simple fact is that individuals vary according to the percentage of water that exists in their bodies.
In a study entitled Pharmacokinetics of Ethanol in Plasma and Whole Blood: Estimation of Total Body Water by the Dilution Principle, Jones, Hahn, and Stalberg, 42 European Journal of Clinical Pharmacology 445 (1992), researchers confirmed that the body water content varies from person to person. The content in men, interestingly, decreases with age - that is, the blood-alcohol concentration will become higher. Further, where an individual has experienced trauma, as in an automobile accident, the body's percentage of water will decrease. The same can also happen due to pathological conditions, as in persons with diarrhea, heart failure, or impaired renal function.
For alcohol to produce its effect, it must reach the brain. To accomplish this, it first passes into the bloodstream after absorption through the walls of the stomach and small intestines. This is a simple biochemical process of diffusion, which will continue as long as the concentration of alcohol in the stomach and intestines is higher than that in the blood.
In contrast to ordinary foods and many drugs, alcohol is absorbed rapidly from the stomach and even more rapidly from the small intestine just beyond the stomach. In fact, the presence of alcohol is initially detectable about five minutes after consumption, and its maximum concentration within the body tissues is achieved in somewhere between 1/2 hour and 1 1/2 hours. This rate of absorption in DUI cases can be accelerated if the subject has ingested significant amounts of water or materials containing water, and it can be slowed down if he has eaten food. The type of alcoholic beverage can also be a factor: beer will cause a slower increase in blood-alcohol concentration than distilled spirits, as well as a lower peak level and faster decline. Absorption is complete when the entire gastrointestinal tract reaches equilibrium with the remainder of the body; this can take as long as 21/2 hours but commonly occurs within 30 to 90 minutes. In any event, the rate of absorption of alcohol in a DUI case - and, as a result, the effect on the nervous system - varies according to the individual.

California has two basic drunk driving laws, found in Vehicle Code section 23152, sections (a) and (b):
• 23152(a) It is a misdemeanor to drive under the influence of alcohol and/or drugs.
• 23152(b) It is a misdemeanor to drive with .08% or more of alcohol in your blood.
Note: In most cases, both the 23152(a) and (b) offenses will be charged. Even though there is only one act, the law says that a defendant charged with drinking and driving can be convicted of BOTH offenses -- but can only be punished for one (the punishments are identical). Vehicle Code section 23153 sets forth the "felony DUI" provisions where an injury results from the drunk driving, while Penal Code sections 191.5 and 192 describe the crime of "vehicular manslaughter" where there is a death.
Procedurally, you should be aware of certain legal rights you have -- rights which are commonly ignored by the police:
• There must be legally sufficient facts to constitute "probable cause" to stop, detain and arrest you.
• You should be advised that submission to field sobriety testing and portable field breath testing is not required by law.
• Once arrested, you must be advised of your constitutional rights -- the "Miranda" warning -- before any further questioning takes place.
• You must be given a choice of breath or blood testing; if you refuse, you must be advised of the legal consequences (the "implied consent" advisement).
• If a breath test is administered at the police station, since the breath sample is not saved, you must be given a chance to obtain a blood sample for later independent testing by your defense attorney.

To have any questions answered contact our office at (916) 447-7842

A defendant charged in a criminal complaint with drunk driving will also, in most jurisdictions, be facing parallel administrative or civil proceedings. These proceedings, usually requested by the driver, are held for the purpose of deciding whether to uphold a suspension or revocation of his driver's license, either for (1) refusing to take a blood-alcohol test, or (2) for taking one that reflects a blood-alcohol concentration of at least .08 percent. That suspension is usually imposed -- and the license confiscated -- by the arresting officer.
In effect, these latest examples of the double standard prevalent in the DUI field constitute a presumption of guilt. But, as with sobriety checkpoints, they are being upheld by the state courts. Due process, apparently, is afforded by the fact that the individual is given a temporary license, usually good for 30 days, and a written notice that he has the right to an administrative hearing on the issue if he so demands within a given period of time.
These relatively new summary suspensions are authorized by so-called implied consent laws, which are the direct result of the federal government's successful "carrot-and-stick" attempt to get the states to adopt relatively uniform laws on drunk driving. Incorporated into the Alcohol-Impaired Driving Countermeasures Act of 1991, the summary license suspension proceedings reflect the "new philosophy" imposed upon the states of implied consent laws. The previous implied consent laws of the various states were aimed solely at the driver refusing to submit to blood-alcohol testing, and were theoretically designed to discourage such lack of cooperation. The new federal approach, however, abandons that view and emphasizes instead the immediate removal of the driver from the highways -- and a circumvention of the cumbersome criminal justice system. In effect, it creates a dual-track system of punishment (although the courts, to avoid nagging double jeopardy issues, like to refer to the suspensions as "administrative sanctions" rather than punishment). As of January 1999, first-offense administrative license suspensions ranged from as low as seven days (Virginia) to as high as one year (Georgia); ninety days appeared to be the most common period.
Although the original implied consent statutes passed decades ago were subject to procedural infirmities, today's statutes have largely survived broad constitutional attacks. Thus, for example, the admissibility of a refusal to submit to chemical testing has been held not a violation of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). The Sixth Amendment right to counsel has been held not to apply to proceedings where there is no risk of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 5. Ct. 2006, 32 L. Ed. 2d 520 (1972).

A defendant charged in a criminal complaint with drunk driving will also, in most jurisdictions, be facing parallel administrative or civil proceedings. These proceedings, usually requested by the driver, are held for the purpose of deciding whether to uphold a suspension or revocation of his driver's license, either for (1) refusing to take a blood-alcohol test, or (2) for taking one that reflects a blood-alcohol concentration of at least .08 percent. That suspension is usually imposed -- and the license confiscated -- by the arresting officer.
In effect, these latest examples of the double standard prevalent in the DUI field constitute a presumption of guilt. But, as with sobriety checkpoints, they are being upheld by the state courts. Due process, apparently, is afforded by the fact that the individual is given a temporary license, usually good for 30 days, and a written notice that he has the right to an administrative hearing on the issue if he so demands within a given period of time.
These relatively new summary suspensions are authorized by so-called implied consent laws, which are the direct result of the federal government's successful "carrot-and-stick" attempt to get the states to adopt relatively uniform laws on drunk driving. Incorporated into the Alcohol-Impaired Driving Countermeasures Act of 1991, the summary license suspension proceedings reflect the "new philosophy" imposed upon the states of implied consent laws. The previous implied consent laws of the various states were aimed solely at the driver refusing to submit to blood-alcohol testing, and were theoretically designed to discourage such lack of cooperation. The new federal approach, however, abandons that view and emphasizes instead the immediate removal of the driver from the highways -- and a circumvention of the cumbersome criminal justice system. In effect, it creates a dual-track system of punishment (although the courts, to avoid nagging double jeopardy issues, like to refer to the suspensions as "administrative sanctions" rather than punishment). As of January 1999, first-offense administrative license suspensions ranged from as low as seven days (Virginia) to as high as one year (Georgia); ninety days appeared to be the most common period.
Although the original implied consent statutes passed decades ago were subject to procedural infirmities, today's statutes have largely survived broad constitutional attacks. Thus, for example, the admissibility of a refusal to submit to chemical testing has been held not a violation of the Fifth Amendment. South Dakota v. Neville, 459 U.S. 553, 103 S. Ct. 916, 74 L. Ed. 2d 748 (1983). The Sixth Amendment right to counsel has been held not to apply to proceedings where there is no risk of imprisonment. Argersinger v. Hamlin, 407 U.S. 25, 92 5. Ct. 2006, 32 L. Ed. 2d 520 (1972).

Blood samples obtained in drunk driving cases are generally -- but not always -- analyzed as whole blood (sometimes called "legal blood"). If the sample is withdrawn for medical purposes, however, the test will probably be done with serum (often referred to as "medical blood"). Serum is the clear yellowish fluid obtained from separating whole blood into its solid and liquid components (usually by centrifuging the sample); the liquid portion of the blood is called plasma, which is similar to serum. A third method involves precipitating proteins from the blood sample and centrifuging it; the result is a clear liquid called "supernatant," which is then analyzed.
Will analysis of serum/plasma or supernatant result in the same blood-alcohol readings as analysis of the whole blood? In a study entitled Distribution of Ethanol: Plasma to Whole Blood Ratios, Hodgson and Shajani, 18 Forensic Science journal 73 (1985), scientists attempted to determine the answer to this very question. The conclusion: Blood-alcohol concentrations in plasma were approximately 11 percent higher than that of whole blood, and those in supernatant samples were about 5 percent higher.
Thus, for example, evidence of a subject's blood-alcohol analysis indicating a .10 percent BAC may in fact reflect a true .09 percent if the plasma separation method of analysis was used. This has been confirmed in another study in which researchers concluded that a "person with an ethanol concentration of [.09 percent] in whole blood could have a reported concentration above [.10 percent] if either serum or plasma is analyzed." Winek & Carfagna, 11 Journal of Analytical Toxicology 267 (1987). Since many states permit the three types of "blood samples" to be used interchangeably in blood-alcohol analysis, counsel should certainly determine which type was actually used.
A simple technique for visually demonstrating the concept of testing blood that has aged and been subject to possible fermentation is to bring in a fresh vial of blood and compare it to the evidentiary sample withdrawn months earlier from the defendant. The fresh blood will be bright red, while the test sample will be nearly black.
For a study that found that serum-alcohol concentration can be up to 20 percent higher than blood-alcohol concentration, see Frajola, Blood Alcohol Testing in the Clinical Laboratories: Problems and Suggested Remedies, 39(3) Clinical Chemistry 377 (1993).
For legal case decisions, see Commonwealth v. Wanner, 605 A.2d 805 (Pa. Super. 1992), where the defendant appealed his DUI conviction on the grounds that the evidence of his blood-alcohol concentration was based on tests conducted on blood plasma rather than on whole blood, as required by statute. The appellate court agreed, citing the Bartolacci opinion; although that case addressed the use of blood serum rather than plasma, both involved tests on only portions of the blood. The court further found that tests on plasma resulted in BACs 15 to 20 percent higher than tests on whole blood.