Sunday, March 31, 2013

Preliminary Alcohol Screening (PAS) Test: DUI Arrest In Orange County



A Preliminary Alcohol Screening (PAS) machine is portable, handheld breath test device The preliminary alcohol screening test is not supposed to be determinative” of your blood-alcohol content but is a “field sobriety test” which may be used as a further investigative tool in order to establish reasonable cause to believe a person was driving a vehicle while under the influence of alcohol. DUI Lawyers in Orange County routinely challenge the validity of the results for these breath-testing devices, which must be used, calibrated and maintained in accordance with the guidelines of Title 17.
It is now fairly routine for law enforcement in Orange County to use the PAS during a DUI investigation. This test is voluntary and the law specifically requires the DUI officer to tell you that you don’t have to take the test. Your refusal to take the PAS test during a DUI investigation cannot be used against you in court. In my experience a majority of police and CHP officers in Orange County do tell people that they may refuse the PAS, but a good number of officers make it a policy not to admonish the subject of a DUI investigation that he or she may refuse the test. Unfortunately, even if a DUI investigator does not comply with their legal duty to tell people that the test if voluntary, the result is still admissible in court. The only consequence is that your Orange County DUI Attorney will tell the jury that the officer was supposed to tell the person on trial for a DUI of the voluntary nature of the test but didn’t do it.
The most commonly used PAS device in California is the Alco-Sensor IV, which is capable of being downloaded, making the computer printout of all information processed through the unit. Some models are also capable of having a printed breath ticket processed at the time the test is given. As with any other breath machine, the PJAS doesn’t save any breath sample.

If the DUI officer does not use the PAS correctly, or if the PAS device was not properly calibrated or maintained, your DUI defense lawyer will make an Evidence Code Section 402 motion just before trial starts. In order to justify admitting the PAS evidence the District Attorney (DA) must either 1) show that the law enforcement agency responsible for the PAS has complied with the regulations set out in Title 17 of the California Code of Regulations for the maintenance of the PAS equipment and the training of personnel administering the test; or 2) Provide independent proof that the PAS test met three foundational requirements of People v. Adams (1976) 59 Cal.App.3d 559—That the PAS machine was in proper working order; That the test used was properly administered; and The operator was competent and qualified.
If you have been arrested for DUI in Orange County and would like to consult with an experienced and highly qualified Orange County DUI lawyer call the Law Offices of EJ Stopyro at (949) 559-5500 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

Thursday, March 28, 2013

DUI Arrest: Horizontal Gaze Nystagmus


Horizontal Gaze Nystagmus (HGN) is an involuntary jerking of the eyes that may indicate the presence of alcohol or drugs during a DUI investigation. DUI Attorneys in Orange County know that this is usually the first field sobriety test that the officer asks you to take when performing a DUI investigation. The test is supposed to be given when both the officer and the driver are standing, yet many cops perform it when the driver is still sitting in the car. The cop conducting the DUI investigation is then supposed to hold an object (stimulus) 12 to 15 inches from the driver’s face, just above eye level, while the driver follows the stimulus with ONLY their eyes. (The head is supposed to remain perfectly still.) The DUI officer is then supposed to move the stimulus slowly across the plane of the driver’s eyes. It is supposed to take 3 to 4 seconds to complete one arc but it is common for DUI officers to move the stimulus too fast. At least two passes are supposed to be performed. If any aspect of the Horizontal Gaze Nystagmus test is performed incorrectly, your Orange County DUI Lawyer should point this out to the jury.

The theory is that as the eyes move from side to side, the movement should be smooth, like two marbles rolling across a flat polished glass surface. The presence of alcohol can cause the eyes to move less smoothly—like two marbles rolling across course sand paper.
The officer conducting the DUI investigation is supposed to start moving the stimulus from the center, moving to one side. The DUI investigator is supposed to keep moving the stimulus to the side until the cop cannot see any white of the eye. (maximum deviation) This usually occurs at about 45 degrees. The DUI investigator is supposed to hold it there for four seconds before moving the other way. When the stimulus is at maximum deviation, a slight jerking of the eye, called nystagmus, will occur in about half the population. However, if alcohol is on board, the nystagmus becomes very distinct. This “distinct nystagmus” is a clue that the DUI investigator looks for. The earlier the nystagmus occurs the more alcohol is in the persons system. Therefore, the DUI investigator is also looking to see at what angle the nystagmus occurs. If nystagmus occurs before maximum deviation, the DUI investigator is supposed to hold the stimulus at that spot for at least two seconds while noting the angle of onset.

Nystagmus occurring at an angle of about 40 degrees is roughly correlated with a blood-alcohol of 0.10%. Nystagmus occurring at 35 degrees equates to a BAC of 0.15%, and at 30 degrees with a BAC of 0.20%. In DUI trials, prosecutors often attempt to have the arresting officer estimate a BAC based on the angle of onset. A good DUI Lawyer in Orange County will object to the introduction of the officer’s opinion as to a specific BAC as this evidence is not reliable enough to be admitted. The DA can only use this test to show that alcohol is present in the driver’s system and anything further MUST be objected to by your DUI lawyer.
If you have been arrested for DUI in Orange County and would like to consult with an Orange County DUI lawyer, call the Law Offices of EJ Stopyro at (949) 559-5500 to today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro

Tuesday, March 26, 2013

DUI Arrest And Implied Consent


If you are pulled over by the police, Orange County Sheriff’s, or the CHP and arrested for a DUI, the law requires that you submit to a breath test or blood test. DUI Lawyers in Orange County know that under the “deemed consent” provision of Vehicle Code §23612 anyone who drives a car is deemed to have given his or her consent to “chemical testing” of his or her blood, breath or urine. When a person is arrested for DUI they are given only a choice between tests of blood and breath, even though a urine test may be used if the other tests are unavailable. If you are arrested for drunk driving and you choose the breath test, then you must also be advised by the arresting officer that no breath sample is retained and that, consequently you may also have a blood or urine sample collected for later analysis if you so choose. The testing must be “incidental’ to a lawful arrest and the arrestee must be told that failure to submit to or complete the required test will result in a “refusal”, which is a separate charge bringing serious penalties.

Failure of the arresting officer to properly admonish you will NOT result in the suppression of any test result that they did get or in a dismissal of the charge. In fact the only real consequence of failing to properly admonish it that if the case goes to trial your DUI Attorney in Orange County gets to tell the jury that the police officer did not give the proper admonishment required by law. Although that doesn’t seem like much, (and it isn’t), I’ve seen a jury return a not guilty verdict because they did not like the fact that the police officer did not follow the law. Moreover, DUI defense attorneys know that if they can show a systematic pattern of the officer not admonishing DUI arrestees, then the failure of the officer to properly give the implied consent admonishment may give rise to a dismissal.
A person arrested for an Orange County DUI has the right to have a sample of either blood or urine retested by an independent agency at the arrestee’s expense. Usually, the arrestee’s DUI lawyer need only file an order for such testing, which is routinely signed. The DA’s failure to comply with such an order or the prosecutor’s failure to preserve the sample for future analysis may lead to the test when the arrestee’s Orange County DUI Attorney files a motion to suppress the evidence
If you face charges for a DUI in Orange County and would like to know your options, call the Law Offices of EJ Stopyro at (949) 559-5500 to consult with an Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro

Sunday, March 24, 2013

Orange County Courts: Your Right To A Preliminary Hearing



If you face charges for a crime in Orange County, includingdrug charges, domestic violence charges, DUI charges, theft, assault or any other felony offense, then you are entitled to a preliminary hearing to determine whether there is enough evidence against you and to give you a chance to present a defense. A preliminary hearing must be set within ten court days after your Orange County criminal defense attorney appears at your arraignment. This time requirement applies whether you are in custody or out of custody on your own recognizance or on bail.

You have the right to represent yourself at this hearing or be represented by a criminal defense lawyer in Orange County. You also have the right to an interpreter if you need one. At this hearing the prosecution must present sufficient evidence to convince the judge that probable cause exists to believe that a crime has been committed and that you committed it. The District Attorney usually has the police officers who were there testify as to what happens. At the preliminary hearing the testifying police officers are allowed to tell the judge what other civilian witnesses and victims told them. Testimony about what someone told you is called “hearsay” and is usually not allowed in court. But hearsay is allowed at the preliminary hearing. Your criminal defense lawyer then has the right to cross examine the police officers who testify.

At the preliminary hearing you have the right to present any evidence of an affirmative defense—although your Orange County domestic violence lawyer will usually reserve this evidence for trial. If the prosecutor does present enough evidence to meet the standard expressed above, the judge will issue a “holding order”, which means that the case against you will go forward. The preliminary hearing, as a rule, must be completed in “one session”,meaning the DA can’t request a “continuance” which is a postponement.

If you have been arrested for a felony in Orange County and would like to talk to an experienced criminal defense lawyer with outstanding case results, call the Law Offices of EJ Stopyro at (949) 559-5500. The consultation is free and completely confidential. Or visit our website at www.EJEsquire.com.

Criminal Defense Lawyers in Orange County

Thursday, March 21, 2013

DUI Arrests In O.C.: St. Patrick’s Day


According to the Orange County Register, 38 law enforcement agencies formed a DUI task force over the weekend to focus on arresting drunk drivers in Orange County for the St. Patrick’s day holiday. These agencies used DUI dedicated roving patrols as well as DUI checkpoints, tactics well known to DUI Attorneys in Orange County, to enforce DUI laws. On Sunday alone this task force arrested 45 people for suspicion of DUI, according to the article. These include all arrests for DUI in Orange County, whether on county roads or freeways. The paper reported that last year a total of 64 DUI arrests were made, but that total was for the entire weekend.

Roving patrols typically saturate areas with a historic high incidence of DUI drivers—typically areas around popular entertainment districts with establishments that sell alcohol. The roving DUI patrols will look for any reason to pull a driver over, perhaps expired registration, cell phone or seatbelt violations, or a plethora of other vehicle code violations. Once a driver is stopped by the roving patrol, the officer quickly determines if the driver has consumed any alcohol; by asking the driver and by detecting any odor of an alcoholic beverage. Also, the officer will quickly check the eyes of the driver for to see if they are red or watery. The officer will also listen to the driver’s speech to detect any slurring. If a driver has consumed any alcohol, the officer will quickly conduct a DUI investigation, which consists of voluntary field sobriety tests, a “voluntary” breath test, and questions about alcohol consumption.
If the officer believes that a person is under the influence of alcohol or drugs, the officer will arrest the driver and give him or her a choice of a mandatory post-arrest blood test or breath test. If the result is relatively close to the legal limit of 0.08%, the driver should consult with an Orange County DUI Attorneyto determine the possibility of getting the charge reduced to a wet reckless.
The task force also employed at least two DUI checkpoints; one in Irvine and one in San Clemente. Although DUI checkpoints are legal, they must be conducted according to specific legal criteria. Mistakes in following a specific protocol found by a DUI lawyer can be used to get DUI charges thrown out or reduced.
If you have been arrested for DUI in Orange County and would like and would like to consult with an experienced Orange County DUI lawyer to learn what to do in court and at the DMV, 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.

 

 

Monday, March 18, 2013

The DMV Hearing: How To Get The MVARS Video


If you are pulled over and subjected to a DUI investigation, complete with field sobriety tests, and end up facing charges for a DUI in the Orange County courts, you may want to look at the video from the police car BEFORE you plead guilty. The California Highway Patrol (CHP) and some other police agencies equip their patrol cars (and motorcycles) with forward facing cameras as well as audio recording from microphones on the officer and in the car. These recordings are extremely valuable evidence that can make or BREAK the case against you. In both the court proceedings and DMV proceedings (assuming that you or your Orange County DUI Attorney requested a DMV hearing), you are entitled to the video and audio recordings.

The CHP uses a system called Mobile Video Audio Recording System (MVARS) constantly records on its forward-facing camera. Once the patrol car activates it’s emergency lights (red or flashing lights), the system automatically saves the recording.
The footage on the camera will show EXACTLY how you drove prior to being pulled over. And often the field sobriety tests are performed on camera, with audio included. And in some cases this valuable footage shows that what the officer claimed in his report is absolutely wrong. In a recent case I handled the CHP officer said in his report that my client drove onto the shoulder of the roadway, driving one foot over the solid white line on the right. This was the officer’s justification for pulling my client over. The MVARS recording showed that my client did come close to the line but DID NOT DRIVE OVER THE LINE—completely discrediting the officer and utterly refuting his justification for the stop. That’s why this evidence can be so important and, depending on your case, it may be imperative that you, or your DUI Lawyer in Orange County, obtain this evidence from the arresting agency.

For tactical reasons, it is sometimes best to get this evidence from the DMV rather than from the court. If you or your drunk driving attorney have requested a hearing, then you have the right to issue subpoenas which are ORDERS, ordering a person or agency to give you specific evidence. In that case, you or your DUI lawyer will need to issue a DMV subpoena to the CHP or police agency in order to get the recording. Then, you and your defense lawyer can review the recording BEFORE you enter a plea in the court. This tactic can ensure that you get the best possible outcome in the Orange County court.
If you have been arrested for DUI in Orange County and would like to consult with an Orange County DUI lawyer, call the Law Offices of EJ Stopyro at (949) 559-5500 to today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro

Tuesday, March 12, 2013

DUI With Injury Or Death: Twice This Weekend In Orange County


Getting pulled over and arrested for a DUI  in Orange County can be a sobering experience. But when you consider the other possible outcomes, a DUI conviction is not all that bad. For example, crashing your car and injuring someone while you are driving drunk is a far more bleak possibility. Orange County DUI Lawyers know that a DUI with injury may very well be charged as a felony and jail time will very likely be imposed by a judge in the Orange County courts. And if a DUI results in somebody being killed, the driver will likely be charged with vehicular manslaughter. If the driver has a prior DUI conviction they will likely face murder charges since the Orange County District Attorney will probably be able to prove that the driver KNEW they were engaging in dangerous conduct.
Last weekend saw two such tragic incidents in Orange County. In Garden Grove, a 21-year-old girl crashed her car into a telephone pole and a building. One of her passengers, another 21-year-old girl was pronounced dead at the scene. Another passenger was taken to the hospital for her injuries. The driver now faces charges of felony DUI and vehicular manslaughter. If convicted, she will likely be sentenced to serve a period of years in the state prison.
In Santa Ana, a 37-year-old Costa Mesa man was driving with some passengers in his car. He lost control of his car and drove into a flood control channel. One of his passengers was thrown from the vehicle and was killed. The other passenger was taken to the hospital with the driver for their injuries. The driver now faces felony DUI charges and a count of vehicular manslaughter.
A legally impaired driver who causes an accident where someone else is injured, even slightly, can be charged with the felony of "DUI with injury". This is true even if the injured person was the driver's passenger and doesn't want to press charges. This offense is called a "wobbler" which means the prosecutor can charge it as a felony or a misdemeanor. If charged as a misdemeanor, it carries a maximum of one year in the county jail.
If you have been arrested for DUI or DUI with injury in Orange County, you’ll need to consult with an Orange County DUI lawyer today. 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

 

Thursday, March 7, 2013

Third-Offense DUI In Orange County


When someone is convicted of a DUI in Orange County, the penalties imposed by the court and the DMV can range from a hard slap-on-the-wrist to serious time in the Orange County jail. DUI Attorneys in Orange County know that the severity of the punishment is based on many factors including the blood-alcohol level result from the breath test or blood test, whether there was an accident, whether there was an injury, and whether the driver has any prior DUI convictions within the past ten years. (The fall-off period used to be seven years but was changed to ten years) If you have ANY prior DUI or wet reckless convictions within the past ten years then jail time is MANDATORY. A second-offense DUI must be punished by at least 4 days of jail time, a third offense requires 120 days in jail, and a 4th offense must be punished by at least six months in jail. (Usually, a 4th offense DUI in Orange County gets at least 16 months in prison.
When facing the serious penalties of a DUI conviction with a prior, it is always best to consult with a DUI lawyer. A skilled Orange County DUI Attorney  can help to get the best possible outcome in your case. The following is an actual case result achieved by the Law Offices of EJ Stopyro in People v. Masuro N. in the West Justice Center:
With two prior DUI's under his belt, Masuro was clocked speeding—going 70 in a 45 zone. He was too intoxicated to complete the field sobriety tests and two breath tests resulted in a reading of 0.18%. He was facing a year in the county jail plus an additional mandatory 60-day jail enhancement for the excessive speed.
Mr. Stopyro presented his argument to the judge that the lack of any other criminal record other than the two DUI’s showed that Masuro really had a drinking problem and wasn’t a criminal. Moreover, due to Masuro’s age (in his 70’s), it would be more beneficial to society to allow his client to serve 240 days of home confinement where his client could only leave his home to go to AA meetings, work, school, and an alcohol program. Although the DA opposed Mr. Stopyro’s request for home confinement, the judge granted it. (Department W-3 of the West Justice Center)
If you have been arrested for DUI in Orange County call the Law Offices of EJ Stopyro at (949) 559-5500 to consult with an Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.
Law Offices of EJ Stopyro