Tuesday, December 30, 2014

DUI Arrest: Should I Choose The Blood Test or The Breath Test?





If you are
arrested for a
DUI in Orange County, you are obligated under California’s
implied consent law, found at California
Vehicle Code Section 23612, to take either a blood test or a breath test to determine your blood-alcohol
content. You do NOT have the right to consult with your
Orange County DUI defense Attorney before choosing which test to take.
Moreover, if you REFUSE to take either the breath test or the blood test, the
police can obtain a search warrant and take your blood by force. Not only will
the police have the blood evidence to support the DUI charge, but you will also
be charged with a
refusal to take a blood or breath test. This will carry extra penalties,
including jail time, and a much longer
license suspension from the DMV.


So, which
test should you take? Well, most
DUI defense lawyers in Orange County agree that there is no “clear cut”
answer. A breath test is not as accurate as a blood test. But this inaccuracy
can work to your adventive IF you are in the elimination phase. That is, if all
of the alcohol you consumed has moved from your stomach to your blood and your
body is now eliminating that alcohol. If you are in the absorptive phase, where
all the alcohol has not yet been absorbed into your bloodstream, then the
breath test will actually read higher than your true blood-alcohol.
An advantage
of the breath test is that there are more defenses for your
DUI Lawyer to work with in court. For example, a low carbohydrate diet
may cause a slightly higher reading on a breath test. Also, diabetes may also
cause a higher reading. Mouth alcohol, which is alcohol that has moved from the
stomach to the mouth, can also give a false high reading. These defenses are
NOT available with a blood test.
A major
disadvantage to the breath test is that it is usually given at the scene of the
arrest and thus close to the time of driving. A blood test on the other hand is
given at the police station, jail or hospital. It usually takes an hour or two
from the time of driving before a blood test can be given. This window of time
gives your
DUI defense attorney room to argue that your blood
alcohol content at the time of driving was much lower than at the time the test
was given.

If you’ve
been arrested for a DUI,
DUI
with injury
, or DUI
with a prior DUI conviction, call The Law Offices of EJ Stopyro at (949)
559-5500 today for a free and confidential consultation. You can also visit us
online at
www.ejesquire.com. We have
offices at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano,
CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.


 
 

Wednesday, December 17, 2014

DUI Punishment: Home Confinement or “House Arrest” is Less Available

Being
arrested for a
DUI is a harrowing experience, to say the least. As an
experienced
DUI defense Lawyer in Orange County I can tell you that most people who
are arrested for a first-offense DUI are pretty traumatized by the experience.
Typically, this is the first time they have been arrested, handcuffed, and
taken to the Orange County jail, where they spend around ten hours before they
are released. Even though the punishment for a typical first-offense DUI in
Orange County doesn’t include jail time, most of my clients who experience a
first-offense DUI arrest swear that it will never happen again.






Unfortunately,
it is a statistical fact known all too well to
Orange County DUI Attorneys that a certain percentage of those who are arrested for
a first-offense DUI will be arrested for a second-offense DUI within ten years
of their first-offense DUI conviction. And unfortunately for them the
punishment in Orange County for a second-offense DUI is no slap on the wrist.
The typical jail sentence in Orange County for a second-offense DUI—where there
is no accident, child in the car, or excessive speed—is somewhere between 60
and 90 days in the Orange County jail.


Now, in the
past, a
DUI defense attorney representing a person facing charges
for a second-offense DUI in Orange County could often get permission from the
court to allow their client to serve this 60 to 90 days as “home confinement”
or “secured electronic confinement” (“SEC”) instead of actual time in the
Orange County jail. Under this program, the defendant wore a GPS bracelet, was
allowed to leave their home to go to work and the mandatory
Alcohol program, but was otherwise required to stay
home during their sentence. I can tell you from first-hand experience that
there is a night and day difference between serving jail time and home
confinement.


However, with
the changing of presiding judges in the Orange County courts that handle DUI
charges, the days of home confinement, house arrest or SEC are fading fast.
These days the judges are very reluctant to allow for home confinement. This
means that the alternatives to jail time that can be sought by an
Orange County DUI lawyer are becoming slim. Some of the alternatives include
time in a Residential Alcohol Treatment facility, serving time in a private
jail or “pay and stay”, the DUI court program, or serving the jail sentence on
weekends. While none of these alternatives are as forgiving as home
confinement, they are still better than actually serving jail time.


Moreover,
while these remaining options are still, for the most part, available to most “standard”
second-offense DUI offenders—where there is no accident, child in the car, or
excessive speed—they are usually NOT available when the offense involved is a
third-offense DUI. In that case most judges will require jail time. And the
typical jail sentence for a third-offense DUI is about eight months in the
Orange County jail.


If you are
accused of a DUI in Orange County, call The Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced
Orange County DUI defense attorney. You can also get information about
your DUI charge by visiting our website at
www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.

Sunday, November 16, 2014

DUI And The “Negligent Operation” Suspension

If you are
arrested for a
DUI or a DUI with injury in California the officer who arrests
you will confiscate your driver’s license and give you a pink piece of paper to
act as your “temporary” license. A careful read of the prolix legal dialogue on
the pink paper will explain that if you or your
Orange County DUI defense lawyer don’t call the DMV to demand your
right to a
 DMV hearing in the matter, a suspension will automatically be
imposed beginning 30 days after the date of arrest. This suspension, called an
Administrative Per se or “APS” suspension is four months in length for a
first-offense DUI and one year for a second-offense or third offense DUI.






Even if you
or your
DUI defense Attorney in Orange County requests this hearing, this usually
only delays the inevitable suspension. The APS hearing is a civil procedure and
the burden of evidence required to find against the driver is very low—a preponderance
of the evidence. Moreover, the driver is not entitled to a jury. Rather, the DMV
employee or “Hearing Officer” sits as both judge and prosecutor with great
leeway to interpret the rules of evidence very loosely. The DMV need only show
that 1) you were driving; 2) the officer had reasonable suspicion to stop you
(a traffic violation); the officer had probable cause to arrest you for DUI
(bad field sobriety tests, bad driving, odor of alcohol, red eyes, etc.); and
4) that your blood alcohol level on a
breath test or blood test was 0.08% or higher.


But this is
only the first of TWO suspensions that arise from a DUI arrest. If your
DUI Lawyer cant find a defense to your case in court or cannot find a
defense to the charge in court or cant get the charge reduced to a
wet reckless, then you may have to plead guilty
to the DUI. If you plead guilty or are found guilty of a DUI, the court MUST
immediately notify the DMV which then imposes a “Conviction Suspension”. For a
first-offense DUI this is a six month suspension. For a second or third offense
DUI the conviction suspension is two years.


Now, if this
is a first-offense DUI, as most DUIs are, then your
DUI Attorney can get you a restricted license after serving only 30 days
of suspension. A restricted license will allow you to drive to and from work as
well as any “work related” driving. However, if you have other traffic offenses
on your record, you may also face a “negligent operation” suspension. This
suspension lasts six months and is NOT subject to a restricted license.


A Negligent
Operation suspension is issued if you have too many “points” on your driving
record. The Negligent Operation suspension is found in Sections 12810 and
12810.5 of the California Vehicle Code. Under these provisions, most moving
violations count as one point. A DUI however, counts as two points. SO does the
violation of driving on a suspended license. Under this statutory scheme, if a
driver gets four or more points in any 12-month period, six or more points in
any 24-month period, or eight or more points in 36-months, they will get a
Negligent Operation suspension.


So, for
example, if a driver is arrested for a first-offense DUI, and the driver has two
moving violations within the past year, the driver will probably face three
suspensions: the APS suspension, the DUI Conviction suspension, and the
Negligent Operation suspension. While the driver’s
DUI defense Attorney will likely be able to get the driver a restricted license
after 30 days for the first two suspensions, there is no restricted license
available for the Negligent Operation suspension and the driver will likely
face a six-month period of suspension.


If you are charged
with a DUI in the Orange County courts, call The Law Offices of EJ Stopyro at
(949) 559-5500 for a free and confidential telephonic consultation with an
experienced
DUI lawyer. You can also get more
information from our website at
www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.

Monday, November 10, 2014

Proposition 47: Important Changes in the Law

Proposition 47 has changed the treatment of theft crimes as
well as drug crimes by the California criminal justice system. Passage of Prop.
47 has transformed “wobblers”—crimes that could be charged as felonies or
misdemeanors—into straight misdemeanors. Orange County criminal defense lawyers welcome this change because
the District
Attorney
can no longer charge many crimes as felonies but can only charge
them as misdemeanors. This change greatly reduces the District Attorneys “leverage”
to force a defendant to plead to a crime rather than risk a felony conviction
and possible prison sentences.





The crimes affected by Prop. 47 include some of the most
familiar crimes to criminal defense attorneys in Orange County including   (Health and Safety Code Section 11350), Possession of
Concentrated Cannabis (Hashish), Grand Theft, Petty Theft, Forgery, Commercial
Burglary, Check Fraud and Receiving Stolen Property.


Possession of a Controlled Substance:


Before Prop. 47, Health and Safety Code Section 11350 made drug
possession
including opiates, heroin, cocaine, and codeine a FELONY. Now,
possession of these drugs is a misdemeanor except for those with a serious
criminal history or those required to register as a sex offender. The same is
true of possession of hashish (concentrated cannabis).


Grand Theft/Receiving Stolen Property:


Grand Theft is theft of property exceeding $950.00 in value.
Prior to Prop. 47 grand theft also included theft of lesser values of certain
types of property—farm crops, firearms, vehicles, etc. After Prop. 47, theft of
all property with a value of $950.00 or less is petty theft. This rule now also
applies to Receiving Stolen Property. Prior to Prop. 47 Receiving Stolen Property
was a wobbler and could be charged as a felony or misdemeanor. Now, unless the
value of the property exceeds $950.00 it is only a misdemeanor.


Petty Theft With Priors:


Before Prop. 47, a person who committed petty theft and who
had three prior theft convictions (petty theft, grand theft, burglary,
receiving stolen property, robbery, AUTO THEFT, carjacking) could be charged
with a felony. Prop. 47abolished this rule and now theft of property with a
value of $950.00 or less is petty theft and can only be charged as a
misdemeanor unless the defendant has a serious criminal history or is required
to register as a sex offender.


Check Fraud:


Before Prop. 47, Check Fraud under $450.00 where the defendant had no prior conviction
for check fraud
, was a misdemeanor. All other check fraud was a wobbler and
could be charged as a felony. Now, Check Fraud not exceeding $950.00 where the
defendant has no more than two prior check fraud convictions is a misdemeanor.


Forgery:


Before Prop. 47, all forgery crimes were wobblers and could
be charged as felonies. Now, forgery offenses including bonds, checks, traveler’s
checks, bank bills, and bank notes not exceeding $950.00 are misdemeanors.


Commercial Burglary:


Prior to Prop. 47, if a person entered a store with the
intent to shoplift, the person could be charged with Commercial Burglary, which
is a wobbler and can be punished as a felony or misdemeanor. Now, the intent no
longer matters. If the defendant entered the store during regular business
hours with the intent to shoplift and does shoplift, it is a misdemeanor
shoplifting charge if the value of the goods or services does not exceed  $950.00.


These important changes in the law will have a drastic
impact on how your Orange County criminal
defense lawyer
handles your case. Since the prosecutor no longer has the
leverage to charge these minor offenses as felonies, DEFENSE ATTORNEYS have
more room to litigate legitimate issues and will likely get better results for
their clients charged with these offenses.


If you have been charged with a crime, call The Law Offices
of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic consultation.
You’ll speak to an experienced criminal
defense attorney
about your options in your case. You can also visit us
online at www.ejesquire.com. We have
offices at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.

Tuesday, November 4, 2014

What’s The Difference Between Petty Theft And Shoplifting?

Petty theft is the crime of theft on a small scale. A theft
crime is considered to be petty theft if the amount of goods or services taken
is $950.00 or less.  Petty theft is found
in section 484 of the California Penal Code. Theft of an amount greater than
$950.00 is called Grand
theft
and is a “wobbler”, meaning it can be charged as either a
misdemeanor or a felony. “shoplifting
is a slang term which refers to petty theft. Shoplifting is a subdivision of
petty theft and the term “petty theft” is typically used in the context of a
petty theft from a retail outlet. Thus, as any Orange County criminal defense lawyer
will tell you, shoplifting is usually charges as petty theft. However, if the
cost of the goods or services taken exceeds $950.00, then the shoplifting will
be charged as grand theft.





If a defendant commits shoplifting and is charged with petty
theft, the defendant’s Orange
County criminal defense attorney
may be able to get the misdemeanor charge
of petty theft reduced to an infraction if the cost of the goods or services
taken was less than $50.00 and the defendant has no prior theft convictions on
their record. The reduction in charge from a misdemeanor to an infraction is
discretionary with the District Attorney. Getting the DA to reduce a petty
theft to an infraction will often depend on the skill and persuasiveness of the
defendant’s theft lawyer. For example,
if there is a possible defense to the charge of petty theft, then a skilled
criminal defense lawyer can often use this as leverage to get the charged
reduced. A prosecutor does not want to take a case to trial if they could lose
it.


Probably the most common defense in a petty theft case is
that of intent. In order to convict a person of petty theft the DA must prove
that the defendant intended to permanently deprive the owner of the property.
So, for example, if the defendant’s theft
attorney
can show that the defendant intended to pay for the item but
absent mindedly left the store before doing so, the defendant is NOT guilty of
petty theft because they did not harbor the requisite intent. On the other
hand, if the prosecutor can prove that the defendant intended to take the item
even before the defendant entered the store, then the defendant can be charged with
the much more serious offense of burglary.


For example, if the defendant is caught with a modified
shopping bag with special hidden compartments as well as wire cutters for
removing security tags, these special implements may be sufficient to prove
that the defendant entered the store with the intent to commit the theft crime.
In this case the District Attorney would likely charge the defendant with
burglary. The defendant’s criminal defense lawyer would then have to present an
innocent explanation of why the defendant possessed these items.


A conviction of petty theft carries a possible penalty of up
to six months in the Orange County jail and a fine of up to $1,000.00, as well
as restitution to the victim. If the defendant’s criminal defense attorney can get
the charge reduced to an infraction there is no possible jail time.


If you have been accused of a theft crime in Orange County
call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and
confidential telephonic consultation with an experienced criminal defense attorney. We’ll explain your
options and possible defenses and tell you what will happen in court. You can
also visit our website at www.ejesquire.com.
We have office locations at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627
and at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA
92675.

Thursday, October 30, 2014

DUI Arrest: Should I Refuse a Blood or Breath Test?

As a
practicing
DUI defense lawyer in Orange County one of the most common questions I’m
asked is “should I refuse to take a
blood test or breath test if I’m arrested for DUI?” The answer is an unequivocal “no”.  Let’s be clear here, I’m not talking about the
“voluntary” breath test the officer usually asks the driver to take during a
DUI investigation. This voluntary breath test, called a “preliminary alcohol
screening” test or PAS for short is a different story. I recommend that a
driver NOT take this breath test. By the way, although the California Vehicle Code
specifically requires that a police officer conducting a DUI investigation tell
the driver that the test is voluntary and that the driver is under no
obligation to take the test, many officers do not tell the driver of the
voluntary nature of the test.






The DUI
officer usually asks the driver to take this PAS test after the driver has
submitted to several field sobriety tests—which, by the way, are also
voluntary. And, as any qualified
DUI Attorney in Orange County will tell you, if a driver declines
to take the PAS test, the officer will likely arrest the driver for DUI. The
reason for this is that once a driver has been arrested for DUI the driver is
now obligated under California’s implied consent law (Vehicle Code Section23612) to submit to either a blood test or breath test to determine the driver’s
blood alcohol content. This post-arrest test is MANDATORY and virtually all
DUI defense lawyers recommend submitting to it.


If a driver
refuses to take a blood or breath test after being arrested for DUI the driver
will suffer harsh consequences. This is why
DUI Attorneys recommend taking the test. A “refusal” will, by law, result
in a one-year suspension of the driver’s driving privileges. This one year
suspension does NOT allow for a restricted license. Moreover, although a first
offense DUI in Orange County usually does not result in jail time, a refusal subjects
the driver to a mandatory 48-hour jail sentence. A second-offense refusal
results in a two-year driver’s
license suspension with no eligibility for a restricted
license and a mandatory four-day jail sentence. A third-offense refusal gets a
driver a three-year license revocation without any restricted license and a
mandatory 10-day stay in the ORANGE COUNTY JAIL.


If you are
arrested for DUI it is important to remember that you do not have the right to
consult with your
DUI lawyer before agreeing to take the
mandatory blood or breath test. Once the officer arrests you he or she must
give you a proper advisement of your obligation to take the blood test or
breath test as well as the consequences of a refusal to do so. Most officers
read this admonishment off of a card they carry. Once the officer advises you
of the obligation to take the test you really only have one chance to either
agree or refuse. If you refuse to take the test initially, then that is all
that is needed to prove a refusal, even if you later change your mind and agree
to take the test.


While there
can be a benefit to refusing to take a blood or breath test—that the DA does
not have solid evidence of what your blood-alcohol level was at the time of
driving—this benefit is somewhat offset by the fact that you refused. You see,
at trial the fact that you refused to take a test can be used as evidence to
show that you KNEW you were too impaired to drive. So, while your
Orange County DUI lawyer can avoid a conviction for driving
with a blood-alcohol level above 0.08%, (Vehicle Code 23152(b)), the jury is
still likely to convict you of driving a vehicle while impaired (Vehicle Code 23152(a)).
Conviction of either offense is a conviction of DUI.


If you need
help with a DUI arrest call The Law Offices of EJ Stopyro today at (949)
559-5500 for a free and confidential consultation with an experienced DUI
attorney. You can also go to our website at
www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.

Monday, October 13, 2014

DUI Arrest: But I Passed The Field Sobriety Tests




As a DUI defense Lawyer with many years of handling DUI cases in the Orange County courts, I’ve talked to
thousands of people about their DUI arrest. One belief that the majority of
people arrested for DUI have in common is that they passed their
field
sobriety tests
—usually
with flying colors. In fact, they are often upset at the fact that the officer
arrested them for DUI after they performed SO WELL on the field sobriety tests.


But what
people don’t understand and most
Orange County DUI Attorney’S know, is that they are being graded on specific
behavior (cues) that they are not aware of. For example, when a police officer
has a driver perform the “walk and turn” field sobriety test, the driver is
asked to walk nine steps heel-to-toe, turn around, and walk nine steps back.
But what the driver isn’t told is that the officer is looking for “indications
of intoxication” or “”cues” such as whether there is a gap between the driver’s
toe and heel on any step of this “heel-to-toe” walk. If the driver raises
their hands AT ALL while walking the line, this too, is a cue. If the driver
“steps off” the line, which is often an imaginary line, then this too is a cue
to impairment. And if the driver doesn’t look continuously at their feet while
walking and turning, then this is also a failing grade on this field sobriety
test. 


All of the
field sobriety tests that a DUI officer asks you to perform will have a set of
cues that the officer is looking for. The one-legged stand, the Rhomberg test
(head tilt), nose touch, and even the horizontal gaze nystagmus test (follow
pen with eyes) have a list of cues. Since most of the driver’s who take field
sobriety tests weren’t even aware that they were being graded on these cues
they believe they passed the tests. But when their
Orange County DUI defense Lawyer gets the police report it inevitably
shows “poor” performance on the field sobriety tests—usually exhibiting two or
more cues of failure.


But even
doing very well on the field sobriety tests doesn’t mean you wont be arrested.
Field sobriety test evidence is NOT necessary to convict a driver of DUI. You
see, there are actually two ways for the DA to convict you of a DUI. One way is
to prove that a driver is too impaired by alcohol, drugs, or a combination of
alcohol and drugs, that the driver wasn’t able to drive a motor vehicle as well
as a sober person. To convict a person of DUI using this theory, the DA usually
relies heavily on the field sobriety tests as evidence of “impairment”.
However, the other way for the DA to convict you of DUI is to prove that you
had a blood-alcohol level of 0.08% or more while driving. This is typically how
most people are convicted. So the field sobriety evidence is usually not
important if the DA has a strong case that you are over a 0.08%.


If you’ve
been arrested for a DUI call The Law Offices of EJ Stopyro today at (949)
559-5500 for a free telephonic consultation with an experienced
Orange County DUI Defense Attorney. You can also visit our website at
www.ejesquire.com. We have offices at 32072 Camino
Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Monday, September 29, 2014

Domestic Violence And The Spousal Privilege: Do I Have To Testify Against My Spouse.

Any Orange County Domestic Violence Lawyer will tell you that a
typical domestic violence arrest in Orange County consists of one spouse being
arrested for some form of domestic violence, be it Criminal Threats,
Domestic
Battery
or Corporal
Injury
, against the other spouse. When the police respond to a domestic
violence call, they take a statement from the victim and arrest the defendant.
The police forward the report containing the victim spouse’s statement to the District
Attorney’s office.





The DA then reviews the report and files a Complaint with
the court, listing the domestic violence charges against the defendant spouse.
However, the police report, and the statement made by the victim spouse, is NOT
admissible as evidence in court. A statement made out of court is called “hearsay”
and is objectionable to the defendant’s Domestic Violence Attorney in Orange County. In order to prosecute
the defendant spouse at trial, the DA will need to put a witness on the stand
who actually saw the domestic violence occur. In most cases, the only witness
is the victim spouse.


Often, by the time the trial rolls around, which is
typically months after the domestic violence occurred, the victim spouse no
longer wishes to prosecute the defendant spouse. The victim spouse usually does
not want to send their spouse to jail or to have their spouse bear a conviction
for misdemeanor or felony domestic violence. However, it is not up to a victim
of a crime to decide whether prosecution should occur. It is entirely up to the
DA to decide to prosecute for a crime. At this point the victim spouse is
merely a witness to the crime of domestic violence and the DA will subpoena
this reluctant witness to testify against their spouse.


But what about the marital privilege? Doesn’t the law
prohibit forcing one spouse to testify against the other? This is a question we
Domestic Violence
Lawyers in Orange County
get all the time. Well yes…sort of. There is a
marital privilege in California, as in many states, which prohibits forcing a
spouse to testify against the other. This privilege is found at Section 971 of
the California Evidence Code and it states:
 
Except as
otherwise provided by statute, a married person



whose spouse is a
party to a proceeding has a privilege not to be



called as a
witness by an adverse party to that proceeding without



the prior express
consent of the spouse having the privilege under


this section
unless the party calling the spouse does so in good faith without
knowledge of the marital relationship.



And if this privilege hadn’t been amended by the legislature
it WOULD prevent forcing one spouse to testify against the other in a domestic
violence trial. However, this privilege WAS amended by Evidence Code Section
972 which specifically states that the marital privilege is not available in a
criminal action where one spouse is accused of committing a crime against the
other. Therefore, criminal defense lawyers in Orange County can no longer rely on
the marital privilege to keep a reluctant spouse off the witness stand in a
domestic violence trial.


If you have been charged with a domestic violence offense,
call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and
confidential telephonic consultation. You can also visit our website at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Tuesday, September 9, 2014

Domestic Violence: Counseling For The Victim

When a defendant is convicted of Domestic Violence
in Orange County, either by a trial or through a plea deal negotiated by their Orange County
Domestic Violence Lawyer
, the law requires that, as a term of probation,
the defendant must successful complete a domestic violence counseling program.
This domestic violence program is either a 52-week batterer’s treatment program
or an anger management program, depending on the charge they were convicted of.
In this way, the law ensures that someone who has committed domestic violence
is given counseling and a chance to break the cycle of domestic violence.





Of course, mental health experts tell us that the cycle of
domestic violence is most often perpetuated by both the defendant AND the
victim. Thus, it would be best to provide counseling to both the defendant and
the victim in order to break the cycle of domestic violence. However, since the
victim is no on probation, it can be difficult for the court or the defendant’s
Orange County Domestic Violence Attorney to convince the victim to
attend counseling.


In order to address this problem the court has come up with
a creative solution. You see, when a defendant is convicted of domestic
violence, they are usually served with a Protective Order
(restraining order)
by the court which prohibits the defendant from having any contact with the
victim. However, the victim of domestic violence can petition the court to
modify a protective order to allow the defendant to have peaceful contact with
the victim. Since the defendant and the victim are often married, and often
even have children together, such a modification is usually granted.


But granting such a petition lies within the sound
discretion of the court. And judges in Orange County will often require the
petitioner (the victim of domestic battery) to attend counseling before the court
will grant modification of a protective order.


Domestic
Violence Lawyers
know that the most common counseling required by the
Orange County court is the Personal Empowerment Program. This program consists
of ten sessions (once a week for ten weeks). Each session is two hours long.
The program is designed to teach victims how to help break the cycle of
domestic violence. And in Orange County it is typical for a judge to require a
victim to complete some or all of the ten sessions before the judge will modify
the protective order to allow for peaceful contact between the defendant and
the victim.


If you or a loved one is charged with domestic violence, Criminal Threats,
Corporal Injury,
or any other crime of violence, call The Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced Orange County criminal defense lawyer.
You can also visit us at www.ejeaquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92675.

Thursday, September 4, 2014

DUI Probation: One-Year Mandatory Suspension For Driving With A 0.01%.

If you are
convicted of a DUI in California, the law requires that as a term of your DUI
probation you not drive with any alcohol in your system. Any
DUI defense lawyer in Orange County worth their salt will tell you that
it doesn’t matter if it is a first-offense DUI or if you have one or more prior
DUI convictions within ten years. Your
DUI probation MUST contain the condition that you not
drive with any alcohol in your system. Of course, the length of your DUI
probation does depend on whether it is a first-offense DUI or whether you have
prior DUI convictions.






The length
of a first-offense DUI probation period is typically three years. This minimum
length of DUI probation is required by law. For a second-offense or more within
ten years this minimum length of DUI probation increases to five years.
Moreover,
Orange County DUI
attorneys
know
that if you are on DUI probation you are required to submit to a breath test if
a police officer requests it.




If you are
on DUI probation and you are stopped by a police officer, you are required to
disclose that you are on DUI probation. Moreover, the fact that you are on DUI probation
is available to the police officer through his mobile computer unit. So what
happens if you violate your DUI probation by having some alcohol in your system
while driving? Well,
Orange County DUI defense
attorneys
will
tell you that first of all you can be arrested. By the very nature of DUI probation
you will have some jail time hanging over your head. And if you are found by
the court to be in violation of DUI probation, the judge can order you to serve
some or all of the jail time remaining.






Also, this
violation is reported to the DMV by the officer by a form called a DS 367,
which the officer fills out and sends to the DMV. The Officer will also seize
your license and give you a pink piece of paper to act as a temporary. Unless
you or your
Orange County DUI defense
lawyer
calls the
DMV within ten days to request a hearing, your driving privileges will be
suspended for one year. The suspension will begin 30 days after the date of
arrest. If you or your
DUI Lawyer do set a  DMV hearing, then a hearing will be set and the DMV must find
evidence to prove the following three issues:






1)      That the police officer had
reasonable cause to believe that you were driving a motor vehicle in violation
of Vehicle Code Section 23152 (DUI), 23153 (
DUI
with injury
) or
23154 (DUI probation);


2)      That you were placed under lawful
arrest; and


3)      That you were driving a motor vehicle
when you had a 0.01% or more by weight of alcohol in your blood while on DUI
probation.
The
suspension issued for violating DUI probation by having 0.01% or more of
alcohol in your blood is a one year suspension with NO POSSIBILITY of a
restricted license during this period. That’s right! No restricted license for
the entire one-year period.




If you face charges
for a DUI, DUI with injury, or violation of DUI probation, you need to talk to
an experienced
Orange County DUI Attorney. Call The Law Offices of EJ Stopyro
at (949) 559-5500 for a free and confidential telephonic consultation. You can
also visit us at
www.ejesquire.com. We
have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627.




Monday, September 1, 2014

Dismissal Of Criminal Charges: Your Right To Speedy Prosecution

When someone is arrested or charged with a crime such as domestic violence
or hit and run,
they have the right to a speedy and public trial. This means that the DA cant
drag their feet when it comes to moving the case along. However, as an experienced
Orange County criminal defense attorney
I can tell you that it is not uncommon for the DA to take a long time before
filing the criminal complaint, especially in cases of petty theft (shoplifting), drug
possession
, and other minor offenses. However, if the delay is not
justified, the defendant may be entitled to a dismissal of the charges.





criminal defense lawyers in Orange County know that the Sixth Amendment
to the United States Constitution, applied to the states through the Fourteenth
Amendment, provides, in part: “In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial …” The right to a speedy trial is
a “fundamental right granted to the accused and … the policy of the law since
the time of the promulgation of the Magna Carta and the Habeas Corpus Act.” Harris v. Municipal Court (1930) 209 Cal. 55, 60; 285 P. 699.
The constitutional right to a speedy trial is triggered when a defendant
becomes “an accused.” Under the United States Constitution, a person becomes an
accused in a misdemeanor case on arrest for the charge, (be it DUI,
assault and battery, Domestic Battery or any other misdemeanor), or when a misdemeanor
complaint is filed, whichever occurs first. Serna
v. Superior Court
(1985) 40 Cal.3d 239, 262; 219 Cal.Rptr. 420.


If the delay in
prosecuting the defendant for domestic violence, hit and run or other
misdemeanor involved is less than one year, then the defendant’s
Orange County
Domestic Violence Lawyer
should
file a motion and the court should engage in a balancing process and include
consideration of: 1) the length of the delay; 2) the justification, if any, for
the delay; 3)
defendant’s assertion of the right; and 4) prejudice, if any, to the defendant.  (Barker v. Wingo, (1972) 407 U.S.
514, 530-532; 92 S.Ct. 2182.)
 However, if the delay exceeds one year in a misdemeanor case, prejudice
is presumed, and if no justification is shown the case must be dismissed.
 (Serna v. Superior Court, supra, 40 Cal.3d at p. 254.)
 


So, for example, if you are arrested for misdemeanor DUI,
you are typically released either on your own recognizance or on bail with a
date to appear in court for your arraignment. But, as any Orange County DUI Attorney knows,
when the court date comes, the DA often has not yet filed the criminal
complaint in the case. Thus, when you or your criminal
defense lawyer
show up for court, your name will NOT be on the calendar. If
this happens, you or your defense attorney should get a date stamped paper from
the DA’s office showing that you or your defense attorney showed up for the
original court date. The burden is then on the DA to notify you of a new court
date or to bring you before the judge on the new court date.


If there is substantial delay before the DA notifies you or
your criminal
defense attorney
of a new date, then your lawyer should file a motion
asking the court to dismiss the charges because of the substantial delay. If
the delay is more than a year in a misdemeanor case, then you may be entitled
to a dismissal of the charges as a matter of law.


If you face criminal charges in the Orange County court,
call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation with an experienced Orange County criminal defense
lawyer. You can also visit us at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Thursday, August 28, 2014

Orange County DUI: Why Are Field Sobriety Tests Important?

As far as
most people are concerned,
DUI law is pretty straight forward; if you drive with a
blood alcohol level of a 0.08% or more, than you are guilty of driving under
the influence of alcohol or drunk driving under California Vehicle Code section
23152(b). This seems pretty straight forward. But what if a person’s blood
alcohol is below the legal limit but they also have taken some kind of drug, be
it legal or illegal? Then the issue is not so clear. Or what if a person is
below the legal limit but their tolerance to alcohol is so low that they are
too drunk to drive with just a small amount of alcohol in their system?
DUI Attorneys in Orange County know that In these situations the
DUI law is less black and white.






For these
cases there are separate subdivisions of Vehicle Code section 23152 which make
it illegal to drive with a combination of alcohol or drugs, or even just
alcohol below a 0.08%, it this combination of alcohol and drugs or just the
small amount of alcohol impairs the driver to the point where they can no
longer drive a motor vehicle with the same care and caution customary of a
sober person. But how do you know if someone is so impaired by a small amount
of alcohol, or a combination of alcohol and drugs, so that they cannot drive
with the care and caution of everyone else? Well,
DUI defense Lawyers in Orange County know that this issue is not a bright
line and there is often room for doubt.


One of the
primary means that the District Attorney uses to prove impairment to a jury is
their interpretation of the driver’s performance on field sobriety tests. Of
course, a skilled
DUI defense attorney in Orange County will offer a different
interpretation. On a typical DUI investigation a DUI officer will usually ask
the driver to perform at least three field sobriety tests. The most common
field sobriety tests include the walk and turn test, the Rhomberg test (tilt
head back while eyes are closed and maintain balance), the one-legged stand, horizontal
gaze nystagmus (following pen with eyes only), nose touch, and hand pat. The
tests are said to test a driver’s balance, coordination, divided attention
(ability to do two things at once) and ability to follow instructions. And in a
case where someone has a blood alcohol level below a 0.08% the field sobriety
tests are often the most important evidence in the case.


In low
blood-alcohol level cases, if there is no evidence of bad driving, which is the
best indicator of impairment for driving purposes, then the field sobriety
tests will often determine the outcome of the case. A skilled
DUI defense Lawyer is often able to turn the tables on the DA when it comes to
interpreting the performance on field sobriety tests. A DUI ATTORNEY does this
by offering alternative explanations for poor performance and by pointing out
all the things the driver did properly on the field sobriety tests. Moreover, a
good
DUI Lawyer will point out the inherent flaws in the tests as well as
highlight the inherent officer bias and how this could affect the accurate
recording of performance.


If you are
accused of DUI, DUI with injury,
DUI drugs, or any other crime, you will need
to speak to an experienced ORANGE COUNTY CRIMINAL DEFENSE ATTORNEY. Call The
Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
telephonic consultation. We have offices at 32072 Camino Capistrano, 2nd
floor, San Juan Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350,
Costa Mesa, CA 92627.

Wednesday, August 20, 2014

First-Offense DUI: Do I Need A Lawyer?

When someone
has been arrested for a second-offense, third-offense, or fourth-offense
DUI, there is no question that they need to get an Orange County DUI defense Lawyer. There very liberty is at stake and
any misstep could cause irreparable damage. But what about a first-offense DUI?
Does someone really need to spend thousands of dollars on an
Orange County DUI defense attorney for that? After all, the standard
sentence for a first-offense DUI in Orange County does NOT include jail time.
Not any! Rather, the defendant is put on three years of informal, unsupervised probation
with six months of time in the Orange County jail hanging over their head. The
sentence also includes over two grand in fines and the requirement that the defendant
complete an alcohol program. (The same alcohol program that the DMV requires
anyway)






The problem
with taking the court’s deal without the help of a
DUI attorney in Orange County is that you’ll never know how weak
the DA’s case against you really is. There may be issues in your case that an
untrained eye could never spot—issues that a trained
DUI defense attorney could turn into a reduced charge of a wet reckless or even a complete dismissal.  So, for this reason, I would NEVER recommend
pleading guilty to a first-offense DUI without the HELP of an experienced
DUI Lawyer in Orange County.


Now this doesn’t
mean that you should necessarily retain a DUI lawyer to handle your case from
start to finish. In fact, in most cases the full services of a DUI attorney are
not really needed in the case of a first-offense, non-injury, non-enhanced DUI.
But you should never plead guilty without having a DUI defense attorney review
the facts of your case first. The best way to do this is to provide the DUI
lawyer with the police report. This can be obtained through the DMV by
requesting a DMV hearing in your case and also requesting “discovery”. Some
DUI dui defense attorneys in Orange County will review the report on an hourly
basis. Another, far less effective way to have a DUI lawyer review the facts of
your case is to orally tell the DUI defense attorney what happened. A skilled
DUI lawyer will know what questions to ask to get as much pertinent information
from the client. These telephonic consultations usually don’t cost a thing.


So, I guess
the answer to the question: “do I need a
DUI defense Lawyer?” is YES. You DO need the help of an experienced Orange County
DUI defense attorney. But you don’t necessarily need to pay full price for
complete representation. At a minimum you need a consultation with a DUI
attorney. If that DUI attorney can point to concrete reasons why you need
representation, such as a suppression of evidence issue or a viable trial
defense, then you should consider retaining a DUI lawyer to handle your DUI
case with both the Orange County Superior Court and the
 DMV hearing.


If you would
like to discuss your case with an experienced Orange County DUI Attorney, call
The Law Offices of EJ Stopyro at (949) 559-5500. The telephonic consultation is
free and confidential. You can also visit us online at
www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Sunday, August 17, 2014

DUI Arrest: Mandatory Jail If A Minor Is In The Car

Everyone
knows that you face some serious consequences if you are arrested and convicted
of
DUI (drunk driving), whether it be for driving under the
influence of alcohol or for driving under the influence of drugs. You face up
to six months in jail for a first-offense DUI and a year or more for multiple
offenses within ten years of each other. Then there is the mandatory alcohol
program between six weeks and 18-months long, possible community service or
Caltrans work, attending a MADD seminar, paying steep fines, and the cost of
hiring an
Orange County DUI defense Attorney. Then there is the stigma of having
a DUI conviction on your record forever, even if it is “expunged”.






As bad as
all this is, the sentence gets worse if there was a minor in the car under
14-years old when the driver committed the DUI offense.
Orange County DUI defense lawyers will tell you that there are laws
called “enhancements” that require extra punishment, usually jail time, for
specific behaviors. As far as DUI’s are concerned, there are several
enhancements including mandatory jail enhancements where a DUI is committed
with excessive speed, with a blood-alcohol level over a 0.20%, and where a
minor under 14 is in the car.


CaliforniaVehicle Code Section 23572 requires mandatory jail time for a driver convicted of DUI when the
driving occurred with a minor under 14-years-old in the vehicle at the time. In
order for the enhancement to apply the DA must plead (that is, assert in a
formal Complaint) and prove that there was a minor in the car at the time of
driving AND that the minor was under 14-years of age at the time. If the DA
fails to do this your
DUI defense attorney can preclude them from applying the
enhancement at sentencing. The amount of jail time depends on whether this is a
first-offense DUI, second-offense DUI, third-offense dui or fourth-offense DUI.
For a first-offense DIU the statute requires a minimum 48 hours in jail. Thus,
although a first-offense DUI typically draws no jail time in Orange County, if
the enhancement is plead and proven, a judges hands are tied and he or she MUST
sentence the first-offender to jail for the DUI. A second-offense within ten
years of a prior DUI or wet reckless conviction will get an additional ten days
of time in the Orange County jail, on top of the base sentence, which is around
60 days of jail time.


A third-offense
DUI offender must be sentenced to an additional 30 days in the Orange County
jail. This is added to the bases sentence which is typically around 240 to 300
days in Orange County. A fourth-offense DUI, which is chargeable as a
misdemeanor or felony (almost always charged as a felony in Orange County) will
require an additional 90 days of jail time on top of the base sentence, which
is usually 16 months in state prison. Your
DUI defense lawyer will tell you that NONE of this additional jail time can be “stayed’
by the judge—the statute specifically says so. Therefore. The best way to avoid
it is usually for your
DUI lawyer in Orange County to negotiate a settlement with the
DA whereby the DA agrees to “strike” the enhancement. If your
DUI Attorney is very skilled he or she may be able to negotiate a plea to
a “
wet reckless’ which not only avoids the mandatory
jail time called for be the enhancement but also avoids mandatory jail time for
a second, third or fourth-offense DUI.


If you have
been arrested for DUI or DUI with injury in or near Orange County, call The Law
offices of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic
consultation. You can also go to our website at
www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Friday, August 15, 2014

Arrest: What Does It Mean

We all know that it is not a good thing to be arrested by
the police, whether for domestic violence, drugs, DUI
with injury
, assault and battery or any other crime. And most of us have
had some kind of encounter with the police where we weren’t necessarily free to
leave. So when does the situation where we are not free to leave transform into
an arrest? Does this transformation occur when the officer actually tells the
defendant that they are under arrest? Or does it begin when the defendant is
told of their right to an Orange
County criminal defense attorney
?





Penal Code Section 834 defines an arrest as “…taking a
person into custody”. Penal Code Section 835 expounds on this by stating “an
arrest is made by actual restraint of the person, or by submission to the
custody of an officer”. So an arrest doesn’t happen when an officer utters some
magic words, but rather when the officer actually takes the person into custody
for hit and run,
drug sales, grand theft or whatever other crime they are suspected of
committing. Once a person is arrested, there is no requirement that the officer
advise them of their rights to remain silent or to consult with an Orange County criminal defense lawyer.


So, the components of arrest are 1) a taking of the suspect
into custody; and 2) actual restraint or submission to custody. When this
occurs, the seizure of the person is considered an arrest and not a temporary
detention. This is very important because the legal justification required for
an arrest is much greater than that required for a temporary detention. criminal defense attorneys in Orange
County
know that the police can temporarily detain someone when they have a
reasonable suspicion based on articulable facts that the person detained is
involved in criminal activity. This is a much lower threshold than the probable
cause required for an arrest. Thus, if an officer is temporarily detaining
someone for domestic violence, hit and run, burglary, auto theft or any other
crime, and the temporary detention becomes an arrest, the officer must meet the
higher standard of probable cause.


Whether or not the officer had probable cause to arrest is
important because it bears directly on the issue of what evidence can be used
in court against the defendant. Although a person cannot resist an unlawful
arrest, the arrest must be lawful in order for any evidence that came about as
a result of the arrest to be used against the defendant in court. (Gikas
v. Zolin
6 Cal.4th 841) Thus, if the arrest was unlawful,
the defendant’s Orange County
criminal defense attorney
can bring a motion to suppress any evidence that
resulted from the unlawful arrest. This includes any observations or sensate
impressions perceived by the officer. Suppression of critical evidence often
leaves the District Attorney with insufficient evidence to prosecute the case,
resulting in a dismissal.


If you’ve been arrested for theft, battery on a peace
officer, or any other crime, call The Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced criminal
defense lawyer. You can also visit us online at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd. Suite 350, Costa Mesa, CA 92675.