What To Do If You Are Stopped For A DUI

DUI Attorneys in Orange County

Orange County DUI Lawyer

Law Offices of EJ Stopyro

Although there are exceptions, as a general rule, if you are stopped by the police after you have been drinking, DUI lawyers recommend the following tips:

1. PAY ATTENTION TO YOUR DRIVING while you are pulling over. When you see the red light in your mirror, don’t panic. HOW you drive now is very important. If you drive in an unsafe manner, make wide or narrow turns, don’t park within the lines of a parking spot, or hit the curb when you park, this can be used as evidence to convict you of DUI in court proceedings. The officer will write it in his report and it will be evidence to show that you couldn’t operate a car safely. So when you pull over, give all your attention to driving.

2. DO NOT answer the officer’s questions about what you drank or ate or even where you are coming from. There are many ways to do it; you can say that you’re not comfortable answering questions without your lawyer. Be polite but remember that all you need to give the officer is your name, license, registration, and proof of insurance. Beyond that, it’s best to give as little information as possible. Be ready to be arrestedbecause there is a good chance you will be. But nothing you say is going to help you anyway. But WHAT YOU DON’T SAY may help prevent charges even being filed later on for lack of evidence. Help your DUI lawyer help you later on.

3. DO NOT take any field sobriety tests. Including the test where the cop asks you to follow his finger. (Horizontal Gaze Nystagmus) DON’T DO IT! These tests are VOLUNTARY, but most people don’t know it. Simply politely decline to take any field sobriety tests.

4. DO NOT submit to a voluntary breath test. Most police agencies in Orange County will ask people to take a breath test BEFORE the driver has been arrested. This test is voluntary and you should NOT take it. Again, be polite but firm.

5. DO submit to either a breath or blood test AFTER you have been arrested. Under California’s “implied consent” law, all drivers must take a test after arrest and refusal to do so will result in increased penalties. Deciding which test to take is a bit tricky. A breath test is less accurate and reliable than a blood test and therefore easier to attack in court. However, a breath test SHOULD NOT be taken close to the time of drinking because the breath machine will usually read HIGHER than your actual BAC if the test is taken while alcohol is still being absorbed from the stomach. (absorptive phase) Once all the alcohol has moved from your stomach to your bloodstream and your body is now eliminating alcohol, (elimination phase), then a breath test can actually read low in your favor. So if the testing is done long after you finished your last drink, a breath test is probably best.

These tips will NOT help prevent you from being ARRESTED for a DUI. However, they may be quite effective at preventing you from being CONVICTED of drunk driving. If you’ve been charged with a DUI in Orange County it is important that you consult with an Orange County DUI attorney with outstanding case results. Call theLaw Offices of EJ Stopyro at(949) 559-5500 to consult with an Orange County drug DUI lawyertoday. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County

Orange County DUI Attorney

 

DUI For Pilots: Wet Reckless May Save Your Certificate

DUI Lawyers in Orange County

Orange County DUI Attorney

Law Offices of EJ Stopyro

If you are a pilot who is convicted of an Orange County DUI, a DUI with injury or DUI by drugs, then Title 14 of the Code of Federal Regulations, Section 61.15 requires you to report the DUI conviction to the F.A.A.. This reporting requirement also applies to drunk boating as well as any action on your driver’s license—including a DMV suspension, restriction or revocation. The report of the DUI or other action must be made within 60 days of the action. Specifically, the statute requires a pilot to report;

“1)          a conviction of any statute relating to the operation of a motor vehicle while intoxicated by alcohol or a drug, while impaired by alcohol or a drug or while under the influence of alcohol or a drug;

2)            the cancellation or suspension of a license for a cause related to the above; and

3)            the denial of a state to issue a license for any cause above listed.”

Moreover, a prior DUI or other reportable action within three years of this action is grounds for revocation or suspension of a pilot’s certificate. It’s also grounds to deny a new pilot a certificate for one year following the conviction. A refusal to take a blood test or breath test is also subject to discipline.

Under this statute it is CLEAR that a conviction for a DUI in Orange County must be reported to the F.A.A.. However, a wet reckless is a different story. A wet reckless includes means that you admit to “consumption of alcohol” or “ingestion of a drug” but it does NOT admit intoxication, impairment, or even being under the influence. Therefore, a wet reckless conviction is arguably NOT subject to mandatory reporting requirements. Thus, if your Orange County DUI lawyer can get your charge reduced to a wet reckless, this MAY save your certificate, depending on what happens at the DMV.

The plea to a wet reckless in court is only half the battle. Your DUI attorney must still deal with the DMV. If you lose the DMV hearing, then the reporting requirements still apply, even though you were only convicted of a wet reckless. This is because the reporting requirements will be triggered by the DMV suspension of your driver’s license.

If you are a pilot and you are charged with a DUI in Orange County it is essential that you contact an Orange County DUI defense lawyer as soon as possible. For more information call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Attorney in Orange County

Orange County DUI Laywers

 

DUI And The Attorney: State Bar Discipline

DUI Attorneys in Orange County

Orange County DUI Lawyer

Law Offices of EJ Stopyro

Attorneys in California who have an Orange County DUI conviction, particularly a DUI with injury a refusal, a drug DUI, or a DUI with priors often suffer far reaching consequences on their career. California Business & Professions Code §490 authorizes the California State Bar to discipline an attorney who has been convicted of a crime that is substantially related to the qualifications, functions, or duties of the legal profession. Moreover, any DUI lawyer in Orange County will tell you that B&P Code §480 allows the California State Bar to deny a license to an applicant based upon a conviction of a crime, including an Orange County DUI. So if you are a lawyer in Orange County, or are planning on becoming an attorney and you face a charge of drunk driving (DUI) in Orange County, you should immediately consult with an experienced Orange County DUI lawyer with outstanding case results.

The California Department of Justice will notify the California State Bar of any arrest of its licensees. The State Bar may send a letter to the attorney asking them to make a statement about the DUI arrest. This statement is usually made under penalty of perjury, so it is best to have your DUI lawyer help you with it. It is important NOT to ignore this request because this may be interpreted as a “lack of remorse” or “unwillingness to cooperate”. Depending on the circumstances, a lawyer accused of DUI may want to seek treatment or embark on a recovery program as soon as possible. After all, B&P Code Section 482 require the State Bar to take into account all competent evidence of rehabilitation furnished by the attorney.

The Business And Professions Code requires an attorney to report a conviction of a crime in the following situations:

·         The bringing of an indictment of information charging a felony against the attorney.

·         The conviction of the attorney, including any verdict of guilty, or plea of guilty or no contest of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.

Under this statute, a typical first-offense DUI does NOT trigger the reporting requirements. However, if the offense included driving on a suspended license or leaving the scene of the accident, these ARE considered crimes of moral turpitude and do require reporting.

The State Bar usually does not impose discipline for a “standard” first-offense DUI. (If they even find out about it.) However, they may impose discipline for a very high blood-alcohol level on the breath test or blood test. The State Bar typically will discipline for a second-offense DUI because this repeated criminal conduct indicates alcohol abuse. The Supreme Court has held that under these circumstances the State Bar need not sit back and wait until the attorney’s alcohol abuse problem begins to affect the attorney’s practice of law. In re Kelly (1990) 52 Cal.3d 487, 495.

Aside from the State Bar, attorneys also face a DMV hearing and a possible driver’s license suspension. If you have a prior DUI within 10 years the DUI penalties from the court proceedings can be particularly stiff. Therefore, it is essential that you contact an Orange County DUI defense lawyer as soon as possible. For more information call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County
Orange County DUI Attorney

 

Make The Arrest: YOU Have The Power!

Criminal Defense Attorney in Orange County
Orange County Criminal Defense Lawyers

Law Offices of EJ Stopyro

Police officers aren’t the only ones who can lawfully arrest another person who commits a crime, such as assault& battery, burglary, domestic violence, drugs, or even DUI. You can too! Criminal defense lawyers know that the lawful authority for YOU to make an arrest is found in Section 837 of the California Penal Code. That section states:

“A private person may arrest another:

1) For a pubic offense [misdemeanor] committed or attempted in his presence.

2) When the person arrested has committed a felony, although not in his presence.

3) When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

These arrest powers that you and I have are very similar to the arrest powers given to the police. The major difference is that the police can arrest somebody when they have probable cause to believe that someone committed a misdemeanor in their presence, whether or not it really was.

So, for example, if a person assaults you, threatens you with physical harm, or assaults or threatens anyone, including your criminal defense attorney, IN YOUR PRESENCE, you have the lawful authority to arrest that person. You simply tell that person that you are placing them under arrest and that they are NOT free to leave. Then, call 911 and get help. When the police come, it is not THEIR decision to arrest the person—YOU have already placed them under arrest. The police MUST then take that person into custody or give that person a citation telling them WHEN to appear in court.

As citizens, it is OUR responsibility to step up and take an active role in protecting our neighborhoods, our families, and ourselves. When we see a theft, assault,marijuana crime or child endangerment happen in our presence, WE have the authority, and arguably the responsibility to arrest the one committing it. Of course, let the POLICE do the “dirty work” of taking the person into custody. This is what the police are for and this is why we pay them so much money.

If you have been arrested by the police or by a private citizen for an Orange County burglary, marijuana sales, drug sales, criminal threat, DUI or any other crime in Orange County you must consult with a criminal defense lawyer in Orange County. Call the Law Offices of EJ Stopyro at (949) 559-5500 to speak with an Orange County DUI defense attorney today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Domestic Violence Lawyer in Orange County
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DUI Checkpoints: Huntington Beach Gets A Grant

DUI Attorneys in Orange County
Orange County DUI Lawyers

Courtesy of the Law Offices of EJ Stopyro

DUI checkpoints are a major enforcement tool used by Orange County law enforcement agencies to detect and arrest drunk driving. Drivers may be legally detained at these DUI checkpoints and, if alcohol is detected, police will request that they take field sobriety tests and a “voluntary” breath test. This may lead to the driver being arrested for DUI and subjected to harsh penalties through the court proceedings as well as a license suspension after a DMV hearing.

The Huntington Beach Police Department has just been awarded a grant of $107,500.00 by the California Office of Traffic Safety, according to the Orange County Register. The grant will be used to set up and operate eleven DUI checkpoints in Huntington Beach. This amounts to roughly one DUI checkpoint every month for the next year.

The DUI checkpoints operated by the Huntington Beach Police are usually manned by officers who are working overtime. The grant money will be used mainly to pay the overtime for officers to operate the checkpoints. Budget cuts in the Huntington Beach Police Department have forced the Department to eliminate its DUI enforcement unit—a group of officers who specifically look to make DUI arrests in Huntington Beach. This is why the police department applied for the grant. According to the Huntington Beach Police Department, DUI arrests are down this year because of the loss of their DUI enforcement unit. In fact, Huntington Beach ranked among the five worst cities for alcohol related collisions among 53 cities with populations between one hundred thousand and two hundred and fifty thousand, according to Police Chief Ken Small.

 Although the Supreme Court has held that DUI checkpoints are constitutionally permissible, there are specific criteria that must be observed in order for a DUI checkpoint arrest to be legal.

1.         The public must be given advanced notice of the checkpoint. The location and time of operation must be provided to the media;

2.         As drivers approach the checkpoint they must have the opportunity to avoid the checkpoint if they choose. Drivers who turn to avoid the checkpoint cannot be stopped solely because they turned to avoid the checkpoint.

3.         There must be a random formula for deciding which cars to stop--for example, every 5th car.

4.         The location of the checkpoint must be reasonable can't be put in a dangerous situation.

5.         The sobriety checkpoint must be well marked, well lit, and have adequate signs to notify approaching drivers.

6.         The duration of the stop must be limited and reasonable. The intrusiveness of the stop must be minimized as much as possible.

7.         Field officers are limited in their discretion.

8.         Safety conditions must be maintained.

For more information call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyer in Orange County

Orange County DUI Attorneys

 

Penalties For Violating A Domestic Violence Restraining Order

Orange County Domestic Violence Lawyers
Criminal Defense Attorneys in Orange County
Courtesy of Law Offices of EJ Stopyro

 In California a battery is defined as “any willful and unlawful use of force of violence upon the person of another.” (California Penal Code Section 242) Any domestic violence lawyer in Orange County will tell you that under California law, a battery becomes a crime of domestic violence if the victim is in a special relationship to the defendant. Penal Code Section 243, one of Orange County’s primary domestic violence laws, makes battery a crime of domestic violence if the victim is the spouse, ex-spouse, cohabitant, parent of the defendant’s child, fiancé, fiancée, or in a dating relationship with the defendant.

While ordinary battery (battery committed on someone notin a special relationship to the defendant) is punishable by up to six months in jail, domestic battery is punishable by up to one year in the Orange County jail. Also, domestic violence attorneys in Orange County know that if you are convicted of domestic battery under Penal Code Section 243, you will be required to attend a minimum 52-week batterer’s treatment program at your expense. But perhaps most importantly a conviction for a crime of domestic violence on your record can have far reaching consequences on employment and background checks. If you have a prior conviction under Section 243, then a new conviction will carry mandatory jail time.

If the victim suffered “serious bodily injury” as a result of the domestic battery, the offense becomes a “wobbler”, meaning it can be charged as a misdemeanor or felony and is punishable by up to four years in prison. Therefore, if the battery resulted in injury you should consult with an Orange County domestic violence lawyer without delay. If the victim did not suffer serious bodily injury the offense is a misdemeanor.

One common defense used by domestic violence defense lawyers is to show that a “dating relationship” did not exist under this statute. “Dating relationship”, as used in this statute, is defined as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement.” Thus, the DA must show that the defendant had frequent intimate associations in order to establish that a dating relationship existed. To discuss more defenses and defense strategies call the Law Offices of EJ Stopyro today at (949) 559-5500for a free and confidential consultation with an experienced Orange County domestic violence lawyer.

Law Offices of EJ Stopyro

Criminal Defense Lawyers in Orange County

Orange County Domestic Violence Defense Attorneys

Orange County DUI Court Program: An Alternative To Jail

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

Being arrested for a DUI in OrangeCounty can be an extremely traumatic experience. DUI attorneys know the penalties for DUI are harsh, particularly if you have prior DUI convictions. Moreover, the law REQUIRES mandatory jail time if you have one of more prior drunk driving conviction. So if you DO have prior convictions on your record within the past ten years, then you face mandatory jail time. In Orange County, the District Attorney typically requires around 60 days in jail for a “standard” second-offense DUI. If it is a DUI with injury, it can be filed as a felony with possible prison time. A third-offense DUI carries a MANDATORY 120 days in the Orange County jail with a typical DA offer of 8 months in the Orange County Jail.

The truth is, if you do have prior DUI convictions within the past ten years, you may be addicted to alcohol. This is a fact that has been recognized by the court system and, as a result, Orange County has developed the DUI Court Program to address those addiction issues in those facing charges for DUI and especially for those who face mandatory jail time. The DUI Court Program addresses the addiction. If you are accepted into this program, you will have the chance to avoid all jail time in your case. However, the program is EXTREMELY INTENSE and involves individual and group counseling, psychological counseling, and frequent court appearances. Moreover, you must completely abstain from drug and alcohol use and you will be subject to random testing at any time.

The DUI Court program lasts for a minimum of one year and, during this time, you cannot use or even possess any alcohol or unauthorized drugs. If you violate those terms and relapse you will usually NOT be terminated from the program but will be given additional treatment. The program is truly revolutionary and DUI Lawyers do NOT recommend this program to their clients unless they are firmly devoted to controlling their addiction and becoming sober. If you ARE committed to getting and staying sober, the program is fantastic and can help save your live, your relationships and your career.

If you are facing mandatory jail time because of a DUI arrest, consult with an OrangeCounty DUI defense lawyer as soon as possible. For more information call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyer in Orange County
Orange County DUI Attorneys

Orange County DUI: Court Proceedings v. DMV Hearing

Law Offices of EJ Stopyro
Orange County DUI Lawyer
DUI Attorneys in Orange County

If you are stopped and arrested for drunk driving in Orange County, then you face possible consequences from both the Orange County court AND the DMV. If the results of your evidentiary breath test or blood test come back below a 0.08%, the DMV will NOT impose an APS suspension against you. In this case, if you can resolve your court charges with something other than a DUI, such as a wet reckless, dry reckless, exhibition of speed, or a dismissal, then you will avoid a suspension altogether. If your BAC is 0.08 or higher, then you face a battle on two fronts.

The court proceedings are to determine whether you can be found GUILTY of the crime of DUI and punished with jail, fines and an alcohol program. The DMV hearing is a civil proceeding to determine whether the DMV has grounds to suspend your license. For the most part, the proceedings are separate and have no bearing on each other. DUI lawyers know all too well that it is possible to win in one proceeding and lose in the other. The one exception is that a NOT GUILTY verdict in a DUI trial also requires the DMV to set aside the suspension and give you your license back.

In the court proceedings, the District Attorney (DA) must prove their DUI case beyond a reasonable doubt in order to convict you of a DUI. At the DMV hearing the evidentiary standard is much lower—the DMV need only prove its case against you by a preponderance of the evidence. In court, twelve independent civilians (jurors) must ALL agree that the DA has proved their case beyond a reasonable doubt. At the DMV hearing, a DMV employee sits as BOTH judge and as prosecutor. There is NO jury: the DMV employee gets to decide if he or she has proved their case by a preponderance of the evidence.

Moreover, the rules of evidence are very “relaxed” in a DMVhearing. Where in a criminal trial the defendant has the right to personally confront witnesses against them, no such right exists in a DMV hearing and hearsay that would be inadmissible in a courtroom is routinely allowed as evidence in a DMV hearing. These lopsided rules make it important to have a skilled Orange County DUI attorney represent you at the DMV hearing. Even for a veteran DUI lawyer these hearings are difficult to win.

If you have been arrested for a DUI it is important that you contact an Orange County DUI defense lawyer as soon as possible. For more information call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com. For more information on the difference between the DMV hearing and the court proceedings click HERE.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County
Orange County DUI Attorney

Orange County Domestic Violence: Criminal Threats

Law Offices of EJ Stopyro

Orange County Domestic Violence Lawyer
Criminal Defense Attorney in Orange County

Although a typical domestic violence case involves an allegation of domestic battery or some kind of physical infliction of injury, it is not unusual for a complaint filed in court in an Orange County domestic violence case to also include a charge of making a criminal threat (also known as a “terrorist threat”). Not every threat can be prosecuted as a crime under the criminal threats statute. Penal Code Section 422 states:

“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear of his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year or by imprisonment in the state prison.”

So, only threats of “death or great bodily injury” are criminalized by this law and will be prosecuted by the Orange County District Attorney in domestic violence court. Threats to divorce or to obtain full custody of children do not qualify as criminal threats. Moreover, the person making the threat must INTEND it to be a threat. Domestic violence lawyers know that under California law, angry utterances or “ranting soliloquies, however violent or angry, are not criminal threats. People v. Teal (1998) 61 Cal.App.4^th 277, 281) Also, a criminal threat must have indications of seriousness and deliberate statements of purpose. In In Re Ricky T. (2001) 87 Cal.App.4^th1132, a teacher opened a door and accidently hit a student with the door. The student said “I’m going to get you”. The Court of Appeal held that the statement lacked deliberate statements of purpose. The court also found that the remark was ambiguous and was no more than a vague threat of retaliation.

Domestic violence attorneys also know that a threat need not convey a precise time or manner of execution in order to be prosecuted. In People v. Franz (2001) 88 Cal.App.4^th 1426, the defendant put his finger to his lips and made a “Shushing” noise while sliding his fingers across his throat. This was held to be an unequivocal statement of purpose and conveyed sufficient gravity of purpose and immediate prospect of executing the threat.

If you are facing charges for domestic violence, including criminal threats, call the Law Offices of EJ Stopyro today at (949) 559-5500. You can speak directly with an experienced Orange County criminal defense lawyer with outstanding credentials and case results. The consultation is free and confidential. Or visit our website at

Law Offices of EJ Stopyro

Criminal Defense Lawyer in Orange County
Domestic Violence Attorneys in Orange County

Orange County DUI Arrest And The Dry Reckless

Law Offices of EJ Stopyro

Orange County DUI Lawyer

DUI Attorneys in Orange County

If you are facing charges for an Orange County DUI, then the District Attorney has filed a complaint against you alleging that you violated Section 23152 of the California Vehicle Code. During the court proceedings, your DUI lawyer will evaluate all the evidence against you, including the results of the breath test or blood test, the results of the field sobrietytests, calibration and maintenance logs for these devices, any video in the case and the arrest report.

If there are weaknesses in the case, such as a blood-alcohol test result that is close to or below 0.08%, then the DA might settle the case against you if you plead to a lesser charge. A “wet reckless” is usually the next lowest charge and its advantages are discussed in our previous blog and on our DUI website on the Wet Reckless page. But sometimes your DUI attorney can get an even better offer. A “dry reckless” is a simple traffic violation that is NOT alcohol related. Although the fines for a dry reckless and a wet reckless are about the same, the dry reckless has some distinct advantages over the wet reckless.

A wet reckless conviction will count as a prior DUI if, within the next ten years, you are convicted of a DUI. So if you plead guilty to a wet reckless today, and three years from now you are arrested for a DUI, it will be charged as a “second offense” carrying mandatory jail time. (In Orange County a typical second-offense DUI gets 45 to 90 days of jail time.) However, if your Orange County DUI lawyer gets you a dry reckless, this DOES NOT COUNT as a prior DUI if you are arrested again.

Another advantage of the dry reckless over the wet reckless is that a conviction for a dry reckless will usually NOT cause your insurance to go up. Some insurance companies will increase a driver’s rates for a wet reckless conviction. The DA will usually not offer a dry reckless unless there are some serious problems with the evidence or a blood-alcohol level BELOW 0.08%.

If YOU are facing charges for a DUI in Orange County it is important that you consult with an experienced Orange County DUI defense lawyer with outstanding case results. Call the Law Offices of EJ Stopyro at (949) 559-5500 The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County
Orange County DUI Attorney

Orange County DUI Refusal Defenses

Law Offices of EJ Stopyro

Orange County DUI Lawyer

DUI Attorneys in Orange County

If you were arrested for an OrangeCounty DUI or DUI with injury the arresting officer should have told you that you MUST submit to either a blood test or a breath test under California’s implied consent law. (California Vehicle Code Section 23612) If you “refuse” to take one of these chemical tests, then you will be charged with a refusal in the court proceedings and at the DMV hearing. (See what constitutes a “refusal” in our previous blog or visit our website and click refusal) If the allegation of a refusal is sustained, it could mean mandatory jail time and a longer license suspension. If you ARE charged with a refusal, here are some of the possible defenses:

Officer Induced Confusion

If the police officer said or did anything during the DUI investigation that would reasonably have caused you to be confused with respect to your legal obligation to take a test, then a refusal cannot be sustained against you. For example, if the officer read you your Miranda rights (which state you have the right to a DUI attorney) directly before the test, and you mistakenly thought you had the right to talk to a DUI lawyer in Orange County before taking the test, then the confusion is reasonable.

Not Under Arrest Yet

Since the obligation to take a test of your breath or blood does not arise until after you have been arrested, if your DUI lawyer shows that the arresting officer admonished you about the test before you were actually arrested, then there is no refusal.

No Probable Cause to Stop You

The obligation to take a blood test or breath test also does not arise unless the officer had a lawful reason to stop you in the first place. DUI attorneys know that the officer must have observed you break the law before a stop can be considered legal. If the stop is not based on a law violation, then the refusal can’t be sustained in the court proceedings or at the DMV hearing.

Not Properly Admonished

Often, once an officer makes an arrest for DUI, he or she will informally ask the arrestee if they will take a blood or breath test. This "informal" request does not constitute a proper admonition of your obligation to take a test and the consequences if you don't. If the officer does not read the exact admonition as reproduced above, then the admonition is not proper and the refusal must be "set aside".

Head Injury

If a person arrested for an OrangeCounty DUI has suffered a head injury and that injury makes it difficult or impossible to understand the complex admonition, that person cannot be held accountable for a refusal and it must be "set aside".

Involuntary Intoxication

If you are arrested for DUI and are too intoxicated to understand the admonition, that will not save you from a refusal unless the intoxication was involuntary. For example, if someone puts a drug or alcohol in your food or drink without you knowing it, then the intoxication is involuntary and the refusal must be "set aside".

Operator Error

If you choose to take a breath test and you properly blow into the machine, but the machine doesn't give a reading, then this is probably the result of operator error. In this case you cannot be charged with a refusal. Since the error was not yours, the refusal must be "set aside".

If you are charged with a DUI call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County
Orange County DUI Attorney

DUI Arrest: Refusal To Take A Chemical Test

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

If you are stopped by the police at a DUI checkpoint or for a traffic violation and the officer arrests you for driving drunk or driving under the influence of drugs (DUI drugs) after a DUI investigation (which usually includes roadside fieldsobriety tests), then California Vehicle Code Section23612 requires that you submit to a chemical test to determine your blood-alcohol content. You do NOT have the right to have your Orange County DUI lawyer present during the test. In Orange County a chemical test means either a blood test or a breath test. If you refuse to take a chemical test then the law imposed additional penalties on you including additional jail time, a nine-month alcohol program for a first-offense (as opposed to the typical three-month DUI school), and a longer driver’s license suspension period following your DMV hearing. These penalties are heightened if there was a DUI with injury.

What Constitutes a Refusal

Dui lawyers in Orange County know that once the police officer reads you the admonition, your consent to submit to the test must be “clear and unambiguous”. Moreover, you only get one chance to agree to take the test after you have been properly admonished. If you do not consent to take a test after being admonished, then that constitutes a refusal.

If the police do a “forced draw” where they hold you down and take your blood, you still will face a refusal charge. Even if you refuse at first but change your mind and agree to take a test later, and do take a test later, you can still be charged with a refusal based on your first answer. One offer plus one rejection equals a refusal, even if you later comply.

If the officer attempts to read the admonition to you and you are disruptive during the reading, this too is a refusal. Also, if you initially agree to take a test but are uncooperative during the test, this is also a refusal. For example, if you agree to take a breath test, but during the test you purposely don’t blow hard enough to get a result, then this is a refusal.

If you choose one test but are unable to complete it, then you must submit to the other test. So, for example, if you choose the breath teat but cannot blow hard enough or long enough (perhaps due to asthma or other ailment), then you must submit to the blood test. Failure to do so constitutes a refusal. However, if you suffer from hemophilia or if you are taking anticoagulant medicine, then you are exempt from taking a blood test

If you’ve been charged with a refusal and a DUI in Orange County it is important that you consult with an Orange County DUI attorney. Call the Law Offices of EJ Stopyro at (949) 559-5500 to consult with an Orange County DUI defense attorney today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Attorneys in Orange County
Orange County DUI Attorney

 

Penalties For Violating A Domestic Violence Restraining Order

Law Offices of EJ Stopyro
Orange County Domestic Violence Lawyers
Criminal Defense Attorneys in Orange County

If you’ve been arrested or convicted of domestic battery or child endangerment you were probably served with a domestic violence protective order or restraining order. Obeying the terms of the domestic violence protective order should be a top priority. Here’s why:

CaliforniaPenal Code Section 273.6 makes it a crime to knowingly and intentionally violate the terms of a protective order or restraining order. Generally, a first-offense for violating a domestic violence protective order is a misdemeanor punishable by up to one year in the Orange County jail and a fine of $1,000.00. If you are arrested for this crime it is important to consult with a domestic violence lawyer in Orange County right away. If the violation results in physical injury to the victim the law mandates a 30-day minimum jail sentence. This mandatory minimum can be reduced to two days if your domesticviolence defense lawyer can convince a judge that reduction is in the “interest of justice” based on the seriousness of the violation, the circumstances of the case, the safety of the victim and YOUR progress in counseling.

If you are convicted of violating a domestic violence protective order (restraining order) and you have a prior conviction for the same offense within the past seven years, then the offense becomes a “wobbler”. This means that the Orange County DistrictAttorney can charge the offense as either a misdemeanor (punishable by up to a year in jail), or as a felony (punishable by up to three years in the stateprison.

If you have a prior conviction for violating a domesticviolence protective order within one year of the present violation AND the current violation results in physical injury to the victim, then the offense is a wobbler. Moreover, even if the DA files it as a misdemeanor, the law mandates a minimum six-month jail sentence. However, if your domestic violence attorney can convince the court that the mandatory six-month sentence is not in the interest of justice, the court can reduce the mandatory minimum to thirty days. Your domestic violence lawyer must convince the judge that the reduction is warranted based on the seriousness of the current offense, the circumstances of the offense, that the victim’s safety is not jeopardized by the reduction, and that you are making progress in your court-mandated counseling.

What The DA Must Prove

In order to convict someone of violating a protective order or restraining order, the DA must prove ALL of the following:

1)      A court lawfully issued a written order prohibiting the defendant from specific conduct;

2)      The protective order was issued pursuant to specific legal code section;

3)      The defendant knew of the court order and knew of the specific requirements of the order;

4)      The defendant had the ability to follow the court order; and

5)      The defendant willfully violated the court order (that the defendant did it willingly or on purpose). (Judicial Council of California Criminal Jury Instruction #701)

Thus, if your domestic violence defense lawyer in Orange County can show that you were not properly served with the restraining order, did not have a real choice but to violate the order, or that the violation was not intentional then the DA may not be able to convict you of violation of a domestic violence protective order or restraining order under California Penal Code Section 273.6.

To discuss more defenses to a charge of violating a domestic violence restraining order call the Law Offices of EJ Stopyro today at (949) 559-5500. You’ll speak to an experiencedOrange County domestic violence attorney. The consultation is free and confidential.

Law Offices of EJ Stopyro

Criminal Defense Lawyers in Orange County
Orange County Domestic Violence Defense Attorneys

 

Orange County DUI: Getting The Police Report And Other Evidence

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

Most of our clients who were pulled over by the police (or stopped at a DUI checkpoint), given field sobriety tests, and arrested for drunk driving (DUI), don’t understand why the officer stopped them in the first place and are sure that they passed all the field sobriety tests. Moreover, the officer usually doesn’t tell them what they blew on the voluntary breath test (Preliminary Alcohol Screening Test or PAS). Typically, someone who has been arrested for a DUI, DUI drugs or DUI with injury will ask their DUI lawyer inOrange County how they can get ahold of the police report and see what the officer wrote. When someone who has been arrested for a DUI contacts the OrangeCounty Sheriff’s Department, California Highway Patrol, or city police department and asks for the report they are told that they must go to court to get it.

There are usually two ways of obtaining the DUI arrest report. The first way is to get it through the Orange County DistrictAttorney’s office.  However, the DA will not make the DUI arrest report available until the arraignment for charges of DUI or wet reckless. Even on the day of arraignment prosecutors are reluctant to release the report to anyone but a DUI defense attorney. Also, the DUI arrest report and the forensic alcohol report are usually the only evidence available at the arraignment. If you want other evidence from the DA, such as the video/audio recording from the police car or calibration and maintenance logs for the machine used in the blood test or breath test, this must be requested from the DA and can take several weeks for the DA to get.

The other way of getting the DUI arrest report and other evidence relevant to your DUI case is through the DMV. In order to do this you, or your DUI attorneys in Orange County, must demand a DMV hearing to contest any license suspension. Also, when the demand for a DMV hearing is made, you must specifically request “discovery” in the matter. This discovery includes the DUI arrest report and the forensic alcohol report. Once a hearing is set the DMV will mail this discovery to you or to your DUI defense lawyer. If your DUI attorney gets the report he or she SHOULD immediately send a copy to the client. Other evidence, such as the video/audio and calibration and maintenance logs for the device used in the blood test or breath test can be obtained through the DMV subpoena process.

An initial review of the DUI arrest report and the forensic alcohol report will reveal your chances of getting the DUI reduced to a wetreckless or of beating the charges altogether. If you’ve been charged with driving under the influence of drugs or alcohol in Orange County and you would like to consult with an Orange County Drug DUI attorney with outstanding case results and credentials, call the Law Offices of EJ Stopyro at (949) 559-5500. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyer in Orange County
Orange County DUI Attorneys

Orange County Domestic Violence: Domestic Battery

Law Offices of EJ Stopyro
Orange County Domestic Violence Lawyers
Criminal Defense Attorneys in Orange County

In California a battery is defined as “any willful and unlawful use of force of violence upon the person of another.” (California Penal Code Section 242) Any domestic violence lawyer in Orange County will tell you that under California law, a battery becomes a crime of domestic violence if the victim is in a special relationship to the defendant. Penal Code Section 243, one of Orange County’s primary domestic violence laws, makes battery a crime of domestic violence if the victim is the spouse, ex-spouse, cohabitant, parent of the defendant’s child, fiancé, fiancée, or in a dating relationship with the defendant.

While ordinary battery (battery committed on someone not in a special relationship to the defendant) is punishable by up to six months in jail, domestic battery is punishable by up to one year in the Orange County jail. Also, domestic violence attorneys in Orange County know that if you are convicted of domestic battery under Penal Code Section 243, you will be required to attend a minimum 52-week batterer’s treatment program at your expense. But perhaps most importantly a conviction for a crime of domestic violence on your record can have far reaching consequences on employment and background checks. If you have a prior conviction under Section 243 then a new conviction will carry mandatory jail time.

If the victim suffered “serious bodily injury” as a result of the domestic battery, the offense becomes a “wobbler”, meaning it can be charged as a felony and is punishable by up to four years in prison. Therefore, if the battery resulted in injury you should consult with an Orange Countydomestic violence lawyer without delay. If the victim did not suffer serious bodily injury the offense is a misdemeanor.

One common defense used by domestic violence defense attorneys is to show that a “dating relationship” did not exist under this statute. “Dating relationship”, as used in this statute, is defined as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement.” Thus, the DA must show that the defendant had frequent intimate associations in order to establish that a dating relationship existed. To discuss more defenses and defense strategies contact a domestic violence lawyer in Orange County. Call the Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro
Criminal Defense Lawyers in Orange County
Orange County Domestic Violence Defense Attorneys