Sunday, June 16, 2013

DUI Probation: No Driving With ANY Alcohol In Your System

DUI Lawyer in Orange County

DUI Probation: No Driving With ANY Alcohol In Your System
If you have been convicted of a DUI in Orange County or anywhere else in California, then you will most likely be on DUI probation for a period of three to five years following that DUI conviction. By law, one of the many terms of that DUI probation must be that you not drive with any measurable amount of alcohol in your system. DUI Attorneys in Orange County know that this provision, once largely ignored by law enforcement, is becoming a favorite of the police. California Vehicle Code section 23154 not only makes it a crime for anyone on DUI probation to consume an alcoholic beverage and drive a vehicle with a blood-alcohol level of 0.01% or greater, as measured by the Preliminary Alcohol Screening test (breath test) or any other test.

If law enforcement detains a driver and discovers that the driver is on DUI probation, the officer can require the driver to submit to a test. Of course, the initial detention by the officer must be legal. An officer can’t pull someone over just for being on probation. The officer must first observe a law violation (reasonable suspicion). If the detention is later challenged by the driver’s Orange County DUI Lawyer and found to be illegal, then all evidence must be thrown out (suppressed) and the case is almost always dismissed.
The driver on DUI probation does not have the right to consult with their Orange County DUI attorney before taking the test. If the driver on DUI probation refuses to take a breath test, the driver will be in violation of probation. This means that whatever jail time is hanging over the driver’s head from the underlying DUI case can be imposed by the judge. Furthermore, refusal to take the breath test by a driver on DUI probation will result, in accordance with California Vehicle Code section 13353.1, in license suspension for one to three years. (One year if the driver has never refused before). If the driver does take the breath test, as the driver SHOULD, then if the test shows that the driver has alcohol in their system, they now faces time in the  Orange County jail for the probation violation but no automatic license suspension of one to three years.

If you are facing charge for a DUI, DUI with injury, or any other crime relating to driving under the influence of drugs or alcohol, call the experienced Orange County DUI Attorneys at 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.

 

Monday, June 10, 2013

Chemical Test Refusal; Enhanced Penalties


If you are arrested for a DUI in Orange County, or anywhere in California for that matter, and you refuse to take a chemical test (blood test or breath test), then the law encourages or requires that the court enhance your punishment if you are convicted of a DUI. If you are not convicted of the DUI, then the enhancement no longer applies. California Vehicle Code Section 23577 states that when a person refuses a chemical test and is convicted of a first-offense DUI where nobody is injured, then the judge can add jail time to the first-offense sentence. The time added to the sentence ranges from two days to six months.

DUI Attorneys in Orange County know that although a first-offense DUI in Orange County is punishable by up to six months of jail time, when nobody is injured there is typically no jail time imposed. However, if there is a refusal allegation, judges are inclined to impose at least two days of jail time under Section 23577. If the first offense DUI is a DUI with injury, then Section 23577 REQUIRES at least two days of jail time.
When a driver is convicted of a second-offense DUI, with or without injury, then the law mandates at least 4 days in the county jail. This is the minimum that must be tacked on to whatever time the judge imposes for the underlying second-offense DUI. So, for example, if a driver is convicted of a second-offense DUI and sentenced to 90 days in the Orange County jail (a typical sentence), and the driver refused a blood or breath test, then the judge must tack on at least four extra days. This four days is just the minimum though. The judge can tack on an additional six months if the judge is so inclined to do so.

If a driver is convicted of a third-offense DUI and the person refused a chemical test, then the judge must add an additional 10 days to the sentence. Of course the mandatory sentence for a third-offense DUI is 120 days in the Orange County jail. This, again, is a minimum. Any Orange County DUI Lawyer will tell you that a third-offense DUI is punishable by up to a year in the Orange County jail and the typical sentence in Orange County is around 8 months. The refusal enhancement will add between 10 days and six months on top of that sentence. The refusal enhancement for a fourth-offense DUI is a minimum of 18 days and a maximum of six months in the Orange County jail. The underlying fourth-offense DUI will usually be charged as a felony and punished by between 16 months and three years in the state prison.
Your DUI Attorney in Orange County knows that in order to tack on the extra time for the refusal enhancement the DA must allege in the Complaint that the driver refused the chemical test and the jury must find the allegation to be true. Of course, this enhancement only applies to the court proceedings. The DMV will also enhance its punishment by requiring a one-year license suspension with no possibility of a restricted license.

For a free and confidential telephonic consultation call the Law Offices of EJ Stopyro at (949) 559-5500. Or visit our website at www.EJEsquire.com.

Saturday, June 8, 2013

DUI Arrest: What Should I Do If I’m Stopped By The Police


As an Orange County DUI Attorney, people frequently ask me what they should do when if they are stopped by the police after having consumed alcohol. (DUI drugs is a different story) When you have consumed alcohol only, there are some very important things to keep in mind. First of all, ALL field sobriety tests, including following the officers finger with your eyes (Horizontal Gaze Nystagmus test) are completely VOLUNTARY. That’s right! You do not have to take field sobriety tests. Furthermore, if you have consumed any alcohol, you probably should not take them. The “results” of these field sobriety tests are usually typed up by the arresting officer hours after you have been arrested for DUI and the officer must justify arresting you for DUI.

During the roadside DUI investigation the officer will probably ask you to take a breath test—called a “preliminary alcohol screening” test or “PAS”. Since you have not been put under arrest at this point, the breath test is completely voluntary. Although the law actually requires the officer to tell you that this test is voluntary, many officers do not. They simple ask you to take it. Again, if you have been drinking, it is usually NOT a good idea to take the test. Any skilled DUI Lawyer will tell you that if you have consumed alcohol recently and some of that alcohol is still in your stomach, you are in the “absorptive” phase where alcohol is still moving from your stomach to your bloodstream. During this phase-which can last from 15 minutes to 3 hours depending on whether you have food in your stomach—a breath test tends to read HIGH. That means that an actual blood-alcohol level of .06% can give a false reading of 0.08% on a breath test. Therefore, I do NOT recommend taking the voluntary breath test.
After being stopped by the police, the officer will ask you how much you have had to drink. This question should NOT be directly answered. Neither should you EVER lie. A safe answer would be to tell the officer that you have consumed some alcohol but that you are not impaired by it. The officer will, no doubt, insist that you answer the question, but don’t! Stick to the answer that you are “not impaired”. Do not give a specific number of drinks. If you lie and say that you have not been drinking, a later breath or blood test will expose you as a liar and jurors don’t like that.

Orange County DUI lawyers know the cold, hard truth that if you refuse to take field sobriety tests, don’t a straight answer about the number of drinks you have consumed, and refuse the voluntary breath test, you can expect to be arrested for DUI. Once you have been arrested for DUI, the officer will tell you that you MUST now take a blood or breath test. In most cases, it is actually better to take the blood test. There are a couple reasons for this. First of all, you can avoid the problem of a false high during the absorptive phase. Also, if you choose a breath test, it can usually be given right away, providing the DA with an alcohol level close to the time of driving. If you choose a blood test, the officer must take you to a blood tech. It usually takes an hour and a half before your blood is actually drawn. Now the DA only has one data point for an alcohol level and it is not close to the time of driving. Thus, your DUI Lawyer in Orange County can argue later that your blood-alcohol level was rising and was thus much lower than the measured result at the time of driving.
Nobody wants to be arrested for a DUI. However, being arrested is one thing, being convicted is an entirely different affair. By refusing field sobriety tests, the voluntary breath test, and to tell the officer how much you drank, you severely limit the evidence the DA has to convict you. And if you choose an experienced DUI Attorney in Orange County, you stand a fighting chance to have the charges reduced to a wet reckless, dismissed, or get an acquittal at trial.
For more information call the Law Offices of EJ Stopyro at (949) 559-5500.
Orange County DUI Attorneys

Tuesday, June 4, 2013

DUI Defense: Fighting The Breath Test


In a DUI trial, most jurors are primarily concerned with the alcohol level of the defendant. Jurors want that one piece of information that, at first blush, appears to be black and white—the blood-alcohol level of the person accused. So naturally, DUI Attorneys in Orange County closely scrutinize the test result, whether it be a blood test or a breath test. And most, if not all, Orange County DUI lawyers will agree that attacking a breath test result is much easier than going after a blood test. The reason for this is because the breath-testing device is simply much more unreliable and susceptible to error than the machinery used to test blood.

If your Orange County DUI Lawyer can convince a judge at the outset of trial that the breath test result is not reliable, then the judge will suppress that result and the District Attorney will not be able to present that evidence to the jury. One way for your DUI lawyer to convince the judge that the test result is unreliable is to show that the breath test was not given according to the procedures enumerated in Title 17 of the California Code of Regulations. Title 17 says that before any breath test can be given to a driver, the officer must watch the driver CONTINUOUSLY for 15 minutes before the test. The officer must use “all their senses” to detect whether the driver belches, burps or regurgitates.
This is important because if someone with alcohol in their stomach belches or regurgitates, tiny quantities of alcohol can be transported to the mouth and throat of the person. Even the smallest amounts of mouth alcohol, barely visible to the human eye, can cause a false high reading on a breath testing device. If the officer does not conduct the vital 15-minute observation period, the test is generally  considered unreliable. Therefore, it is important for your DUI Lawyer in Orange County to carefully review the evidence before trial and to thoroughly cross-examine the arresting officer at the DUI trial.

For more information on how to fight a DUI or DUI drugs call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak directly to an experienced Orange County DUI Attorney to learn your options. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Sunday, June 2, 2013



DUI Defense: Tolerance Can Make A Difference

When the DA in Orange County charge a person with DUI or DUI with injury, they allege a violation of TWO laws: the first, C.V.C Section 23152(a), makes it a crime to drive when you are too impaired by alcohol or drugs to drive safely, regardless of what your blood-alcohol level was. Under this law, for example, a person who blew a 0.06% on a breath test could still be found guilty of a DUI if the prosecutor can convince a jury that the driver was too impaired to drive safely.

The second charge in a typical DUI case is a violation of C.V.C. Section 23152(b). This law makes it a crime to drive with a blood-alcohol level of 0.08%, even if the driver is not impaired at all by the alcohol. Sometimes, in a DUI case, the driver’s Orange County DUI Attorneys can get the blood-alcohol evidence suppressed—which means the DA can’t use it at trial. In that case, and in cases where drivers are charged with drunk driving but who have blood-alcohol levels below a 0.08%, the issue of TOLERANCE can be very important. Orange County DUI lawyers know that in these cases tolerance can be instrumental in getting a “not guilty” verdict.

You see, research proves that many people develop a tolerance to the effects of alcohol. Although not everyone who drinks heavily does develop it, studies prove that many heavy drinkers DO develop it. Research shows that those who have developed tolerance can, with a BAC around the legal limit, perform nearly as well on field sobriety tests as “regular people” who have no alcohol in their system. A skilled Orange County DUI Lawyer will make sure that an expert witness explains the importance of tolerance to the jury at the DUI trial. Of course it is preferable to have the prosecution’s own expert witness educate the jury on the issue of tolerance through thorough cross-examination.

If you have been arrested for DUI in Orange County and would like to discuss the penalties, court proceedings, and your options, call the Law Offices of EJ Stopyro today at (949) 559-5500. You can consult with an experienced Orange County DUI Attorney over the phone and the consultation is free and confidential. Or visit our website at www.EJEsquire.com.