Tuesday, April 29, 2014

Possession Of A Controlled Substance: What The DA Must Prove Part III

Drug
defense lawyers in Orange County






In parts I and II of this
blog I discussed the first two elements of the charge of Possession of a
controlled substance—Health and Safety Code Section 11350. In this final blog
dealing with the elements of a possession charge I’ll discuss the final two
elements; 3) that the person charged knew that the drug possessed was an
illegal drug; and 4) that there was enough of the drug to be used as a
controlled substance. These two final elements can also be fruitful ground for
your Orange County criminal
defense lawyer
to defend against the charge of drug
possession
.


Knowledge of What The
Substance Was


The DA must prove, beyond any
reasonable doubt, that the defendant charged with simple possession of a drug,
knew that the substance they controlled, either directly or constructively, was
in fact an illicit drug. For example, if a person is in possession of a white
powdery substance, and the person knows they possess this powder, they still aren’t
guilty of violating Health and Safety Code Section 11550 unless they KNEW the
white powder was an illegal drug and not something like baking soda or talcum
powder. However, as experienced
Irvine
drug defense lawyers
know, this element,
like the others, can be proven with circumstantial evidence.


For example, if the police
find a balloon filled with heroin in the defendant’s pocket, the fact that the
defendant has a history of heroin use is circumstantial evidence that the
defendant knew the balloon contained heroin. Also, if the police officer also finds
paraphernalia in the defendant’s possession for using the heroin, such as a syringe,
this is also circumstantial evidence of the defendant’s knowledge. Other types
of circumstantial evidence commonly seen by
Newport
Beach drug defense lawyers
to show knowledge
include the fact that the defendant is on probation for a drug offense and “furtive”
movements by the defendant indicating a consciousness of guilt about the
substance.


Amount Must Be “Useable”


For a long time, not even Orange
County drug defense attorneys
knew exactly
what this meant. And although the Supreme Court tried to clear up the
confusion, it still isn’t black and white. It used to be the law that the amount
found had to be able to “produce a narcotic effect”. But under the Supreme
Court case of People v. Rubalcava
(1993) 6 Cal.4th 62, there is no requirement that any potential
narcotic effect or purity be proven. The only time a usable quantity does not
exist is when it is a blackened residue or a useless trace. Of course, it is up
to the jury to decide what a “useless trace” is—and up to your
Huntington
Beach drug defense attorney
to convince
them.


If you are facing criminal
charges in the Orange County courts, 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. Our main offices is at
32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.


Monday, April 28, 2014

DUI With Prior Conviction: What Constitutes A Prior Conviction



DUI Attorneys in Orange County                           





Being
arrested for a
DUI is bad enough. But when you have a prior DUI
conviction on your record, it gets exponentially worse. Any experienced
Orange County DUI Lawyer will tell you that while a first-offense DUI in
Orange County generally will NOT draw any jail time—if there was no child in
the car, no extremely excessive speed, and no accident—a “second offense” will
usually result in 45 to 60 days in the
Orange
County jail
. A prior DUI
only counts if it occurred within ten years of the present DUI. The more prior
convictions a defendant has, the worse it gets. A fourth offense within ten
years is a “wobbler”, meaning it can be charged as a misdemeanor or a felony.
However,
Huntington Beach DUI Lawyers know that in Orange County a fourth
offense is almost always charged by the District Attorney as a felony and is
punishable by up to three years in the state prison.


However, not
all prior DUI convictions can be considered prior offenses for sentencing
purposes. A conviction for DUI in another state can sometimes be successfully
challenged by a skilled
Santa Ana DUI Lawyer. You see, the DUI laws in other
states almost always read slightly different than the California DUI law found
at California Vehicle Code Sections 23152 (DUI) and 23153 (
DUI
with injury
). If it is
possible for the other state’s law to be violated without violating California’s
DUI law, then the prior out-of-state conviction cannot be considered a prior
conviction in the Orange County court.


For example,
Dan was convicted in 2013 of DUI in Nevada under a statute that made it illegal
to “operate” a motor vehicle with a blood-alcohol level of 0.08% or more. Then,
in 2014 Dan was arrested for drunk driving in Orange County. The DA at the Harbor
Justice Center alleged that Dan had a prior conviction in Nevada and therefore
wanted to punish Dan with a 60-day jail sentence. But Dan’s
Irvine DUI Attorney explained to the judge that Nevada’s law made it illegal to
sit in a motor vehicle with the keys in the ignition if the person was at a
0.08%. This is different from California’s law which requires actual movement
of the vehicle before a defendant can be convicted of DUI. Since the Nevada law
could be violated by conduct that does NOT constitute a DUI in California, the
prior Nevada conviction can’t be used as a prior conviction against Dan. Even
if Dan was actually driving in Nevada when he was arrested, it doesn’t matter.
The Nevada conviction still cannot be considered a prior DUI conviction under
California law.


The term “prior
conviction” is actually misleading. The new term is “separate offense”. The
reason for the change in terms is because of a change in the law. It is no
longer necessary that the conviction of the first DUI occur BEFORE the conviction
of the second. For example, Dylan was arrested in San Clemente in November of
2013. This was Dylan’s first DUI arrest. While Dylan’s
San Clemente DUI Lawyer was litigating his case in the Harbor Justice Center,
Dylan was arrested for another DUI in Huntington Beach in March of 2014. Dylan,
with the help of his
Westminster DUI Lawyer immediately pled guilty to the
second DUI in the West Justice Center BEFORE the DA learned of his first arrest
for DUI. Since Dylan had no prior convictions, the Huntington Beach DUI was
treated as a first offense and Dylan go no jail time. However, when Dylan and
his
Orange County DUI Attorney return to the Harbor Justice Center,
the DA has now learned of his conviction of the Huntington Beach DUI at the West
Justice Center. The DA now amends to the Complaint alleging a “separate violation”
and now treating Dylan as a second-offender. Even though the “first violation”
actually occurred AFTER the San Clemente DUI, Dylan will be sentenced as
someone with a prior DUI conviction.


If you are
charged with DUI in Orange County, call The
Law Offices of EJ Stopyro
at (949)
559-5500
for a free and confidential telephonic consultation with an
experienced
DUI Attorney. You can also visit our website at www.ejesquire.com. We have meeting offices
throughout Orange County but our main offices is located at 32072 Camino
Capistrano, 2nd floor, San Juan Capistrano, CA 92675

Sunday, April 27, 2014

Misdemeanor Hit And Run: How To Defend Against The Charge

criminal defense lawyers in Orange County





In California, there are two kinds of hit and run. Felony
hit and run happens when someone other than the defendant was injured in an
accident and the defendant left the scene without stopping and exchanging
information. Any hit
and run lawyer in Orange County
knows that the far more common version of
hit and run is misdemeanor hit and run, which is distinguished from felony hit
and run by the fact that nobody (other than perhaps the defendant) was injured
in the accident. Misdemeanor hit and run occurs where there is property damage
only. The property that is damaged can be someone else’s vehicle, real property
such as a house or shed, vegetation on real property such as a tree or garden,
or even personal property, such as a wagon on a sidewalk.


Where a driver causes damage to any property, California
Vehicle Code §20002
imposes on the driver a specific duty to stop and
either give their name and address to the owner of the property (or person in
charge of it) or leave that information in a conspicuous place. (such as under
the windshield wiper of a parked car. If the driver leaves their information in
a conspicuous place, their duty doesn’t end there. They must also, “without
unnecessary delay”, notify the police in the city where the accident happened
or the CHP of the accident. Newport Beach hit and run attorneys know all too well that this
little known second requirement of calling the police can get people in
trouble.


For example, if you are at the beach on a crowded street,
attempting to parallel park, which many people don’t do on a regular basis, and
you accidently strike a parked car, you must leave a note with your name,
address, and brief description of what happened. But, if you have a cell phone,
and who doesn’t, then you must also call the police or CHP “without unnecessary
delay” and report the accident. You might also want to call your criminal
defense attorney
while you’re at it. If you are in an accident and the
other driver is there, then you must give your name and residential address to
that driver. Moreover, if the other driver wants to see your vehicle
registration and/or driver’s license, you MUST show these to the other driver.
They, of course, have the reciprocal duty to give their name and address and,
if you request it, they MUST show you their driver’s license and vehicle
registration.


Failure to perform ANY of these duties can lead to your
arrest for misdemeanor hit and run. If, for example, you leave a note on the
parked car you accidently hit with your name and address, but don’t call the
police without delay, you can be charged with hit and run. Also, if you refuse
to show the other driver your driver’s license or registration after they have
requested it, you can be charged with hit and run. But an even more surprising
scenario that we Irvine hit and run lawyers see commonly occurs where the person
who is not at fault in the accident leaves without exchanging information. The
hit and run law applies to all drivers involved in an accident, even if you
were completely NOT at fault in the accident. If you leave the scene of an
accident where YOU were not at fault without exchanging information, you can be
charged with misdemeanor hit and run.


In order to convict a driver of misdemeanor hit and run the District Attorney
must prove all of the following:


1)      While driving,
the defendant was involved in an accident;


2)      The accident
caused damage to someone else’s property;


3)      The defendant
knew, or should have known, that they were involved in an accident that caused
property damage; and


4)      The defendant
failed to:


a.       Immediately
stop; or


b.      Locate the owner
or person in charge and give the required information; or


c.       Leave the
required information in a conspicuous place AND notify, without unnecessary
delay, the police or CHP.


There are many defenses that an experienced Huntington Beach hit and run attorney can use to attack these
elements. Misdemeanor hit and run is punishable by up to six months in the Orange County jail and a fine of up to $1,000.00.


If you are charged with hit and run call The Law Offices of
EJ Stopyro today for a free and confidential consultation. You’ll speak to an
experienced Mission Viejo hit and run lawyer about your options and possible
defenses. You can also visit us at www.ejesquire.com.
We have meeting offices throughout Orange County and our main offices is
located at 32072 Camino Capistrano, 2nd
floor, San Juan Capistrano, CA, 92675.


Saturday, April 26, 2014

Defending Drug Charges: Possession Or Purchase For Sale

Drug
defense lawyers in Orange County




California Health and Safety
Code Section 11351 says that any person who possesses for sale or purchases for
sale a controlled substance is guilty of a felony. Orange
County drug defense attorneys
know that while many offenses are “wobblers”,
meaning that they can be charged as either misdemeanors or felonies, H&S
Section 11351, possession
with intent to sell
, is a straight felony. It is punishable by a sentence
of two, three or four years in the state prison. While simple possession for
personal use of drugs like cocaine, methamphetamine, or heroin for personal use
under H&S 11350 can be “diverted” to drug programs such as PC 1000 or Prop.
36, possession or purchase for sale cannot be diverted.


Orange County criminal defense
lawyers
like PC 1000 and Prop. 36 because successful completion of either
program will result in the dismissal of the charge. Moreover, there is no jail
time involved when a case is diverted to PC 1000 or Prop. 36. Unfortunately, no
such relief is available in a sales case and conviction will result in a felony
conviction on the defendant’s record and, even where probation is granted,
almost always results in jail time.


So what does it take for a
person to be convicted of H&S 11351—possession or purchase for sale? Well, any
experienced
Orange
County drug defense lawyer
will tell you
that in order to get a conviction for this charge the
District Attorney must prove all of the following elements:


1)    That the accused exercised control or had the right to
exercise control over the controlled substance. (e.g. methamphetamine, cocaine,
heroin, Vicodin, etc.);


2)    That the accused had knowledge of the presence of the
substance;


3)    That the accused knew of the nature of the drug (that
it was an illegal drug); and


4)    That the accused had the specific intent to sell the
drug.


People v. Glass
(1975) 118 Cal.Rptr. 797. These elements can be proven by direct or
circumstantial evidence. For example, to prove the element that the accused
actually intended to sell the substance the police can introduce testimony from
an undercover officer or an informant that the defendant actually made or
attempted to make a sale. But such strong direct evidence is NOT needed to
prove intent to sell.


Other evidence found at the
scene, such as balloons for packaging heroin, substances used to “cut” heroin
or cocaine, or baggies used to package methamphetamine, are evidence to suggest
that defendant was going to sell the drugs. Also, a scale used to weigh
specific amounts of a drug, large amounts of cash, and “pay/owe” sheets are
typical evidence of sales. Moreover, as any Orange
County drug crimes lawyer
will tell you, a large amount of a drug is also evidence
of sales. In one case the court held that possession by the defendant of 172
grams of uncut heroin afforded reasonable inference of possession for sale.
Peple v. Grant (1969) 81 Cal.Rptr. 812.


Irvine
drug defense lawyers
know that another favorite piece of evidence used by
the DA to show sales is to show that the defendant has no other employment. Courts
have held that a defendant’s employment record is pertinent as it relates to
the defendant’s financial need to engage in the illegal sale of drugs. People v. Martin (1971) 95 Cal.Rptr.
250.


 


If you are charged with
possession a controlled substance for sale, or with any other drug crime in
Orange County, call The Law Offices of
EJ Stopyro
at (949) 559-5500 for
a free and confidential consultation. We’ll discuss the facts of your case and
the many successful defenses used by Mr. Stopyro to defend against drug
charges. You can also visit us online at www.ejesquire.com.
We have meeting offices throughout Orange County and our main office is located
at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675


DUI Alert: Diabetic Driver And The DUI Breath Test

DUI Attorney in Orange County                            
 
If you are the focus of a DUI investigation, either after a traffic stop or at a DUI checkpoint, the officer conducting the DUI investigation will probably request that you perform some voluntary field sobriety tests and then take a voluntary breath test. And if the officer ends up arresting you for drunk driving, the officer will ask you to choose between a breath test and a blood test. However, any experienced Orange County DUI Lawyer will tell you that if you are diabetic, whether type I or type II, then diabetes may give a false high reading on a DUI breath test.
 
Diabetes is a metabolic disorder that is characterized by hyperglycemia or high blood sugar. Type I diabetes, known as juvenile onset, is the most serious form of diabetes. Type I diabetes refers to the condition where the pancreas does not produce insulin, which is essential to regulate the body’s blood-sugar levels. This is caused by a breakdown of the islet cells in the pancreas. Without insulin, the body can’t break food down to be used as energy. So when a person has Type I diabetes, they must take insulin every day. Type II diabetes, called adult onset diabetes, refers to the condition where the pancreas doesn’t produce insulin or the body doesn’t use it properly. Type II diabetes is usually caused by genetic factors, obesity, and an unhealthy lifestyle.
 
When a diabetic’s blood sugar gets too high, their body can no longer break down carbohydrates. The body then begins to burn fat as a source of energy. This state is called ketoacidosis. Irvine DUI Attorneys know that when a diabetic is in a state of ketoacidosis, their body produces ketones and acetone. Acetone will give the person a distinctive smelling breath that can be easily mistaken for alcohol. Thus, a police officer conducting a DUI investigation may very easily thing they smell alcohol on a diabetic’s breath when they really smell acetone. Moreover, both ketones and acetone will be read by a breath testing device as alcohol and thus contribute to a high reading.
 
A diabetic in a state of ketosis will not only produce a false reading of alcohol on a breath test, but their outward appearance may also be mistaken for alcohol intoxication. Huntington Beach DUI Attorneys know that the classic symptoms of diabetic ketosis include not only frequent urination and extreme thirst and hunger, but also drowsiness, fatigue, blurred vision, and poor coordination. These are exactly the signs and symptoms that a DUI enforcement officer is looking for when deciding to make a DUI arrest. A diabetic with very little actual alcohol in their system may very well blow over a 0.08% if they are in a state of ketosis.
 
If you face charges for DUI or DUI with injury call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation with an experienced Orange County DUI Attorney. You can also visit us online at www.EJEsquire.com. We have meeting offices throughout Orange County. Our main offices is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.
Fullerton DUI Lawyers

Monday, April 21, 2014

Hearsay At The DMV Hearing: Official Records Exception

 
When a police officer, CHP officer of a deputy sheriff arrests someone for DUI, the officer takes the driver’s California driver’s license and gives them a temporary license. The driver, or their Lake Forest DUI Lawyer, must call the DMV schedule a DMV hearing (Administrative Per Se hearing) within ten days of the arrest. If no hearing is scheduled, the license suspension becomes automatic. If a DMV hearing is scheduled, then the driver can continue to drive until and unless their Orange County DUI Lawyer loses the DMV hearing or the driver pleads guilty to drunk driving in the Orange County court.
 
The DMV hearing can be held telephonically or in person. At the DMV hearing, there are three issues: 1) Did the cop have reasonable cause to believe the driver was driving under the influence of alcohol; 2) Was the driver lawfully arrested; and 3) Was the driver actually driving with a blood alcohol of 0.08% or more. These three issues can provide your Westminster DUI Lawyer with fertile ground to win the hearing.
 
Although there are many defenses that a Costa Mesa DUI Lawyer can raise at the DMV hearing, this blog will focus on the blood evidence. At the DMV hearing, the DMV hearing officer will have a copy of the arrest report, the client’s driving record, the DS 367 (an arrest report specially used by the DMV), and the forensic alcohol report. This last item is usually a one-page report containing the driver’s information (name, date of birth, etc.), the agency that made the DUI arrest, the time of the DUI arrest, the date and time of the blood draw, two results of the blood alcohol analysis, (each sample must be tested twice), and the date and time each analysis was conducted.
 
Typically, at a court hearing, a piece of paper with this information would not be allowed into evidence because it is “hearsay”. Hearsay is any statement that is NOT made at the hearing. So in court if the DA tried to introduce the forensic alcohol report, the driver’s Laguna Niguel DUI Lawyer would object on grounds of hearsay. The Fullerton DUI Lawyer’s objection would be sustained and the District Attorney would have to have the forensic analyst come into court and personally testify. At the DMV however, the rules of evidence are “relaxed” since it is a civil proceeding and not a criminal one. Thus, at the DMV, these forms are considered to be “public records”. Public records are exempt from the hearsay exclusionary rule as long as: 1) they are made by and within the scope of duty of a public employee; 2) they are made at or near the time of the act, condition or event (the DUI arrest in this case); and 3) the sources of information and the method and time of preparation were such as to indicate its trustworthiness.
 
So, at the DMV hearing, the only evidence of what the driver’s actual blood alcohol level was is usually this one-page forensic alcohol report. Laguna Beach DUI Attorneys have found that one way of successfully attacking this evidence is to show that the forensic report was NOT made at or near the time of the DUI arrest. In the case of Downer v. Zolin, 34 Cal.App.4th 578, the forensic analyst didn’t test the blood until five days after the driver was arrested for DUI. In that case the driver’s Anaheim DUI Attorney objected to the report on grounds of hearsay. The DMV overruled the DUI LAWYER’s objection and the driver appealed. The court of appeal held for the driver—finding that blood tested five days after the DUI arrest was not “at or near the time of the DUI arrest” as required by the public records exception found at section 1280 of the California Evidence Code. The suspension was ordered “set aside”.
 
If you are facing a license suspension after being arrested for a DUI call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange DUI Attorney. You can also visit our website at www.EJEsqiure.com. We have meeting offices throughout Orange County and our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675

Thursday, April 17, 2014

Possession of a Controlled Substance: What The DA Must Prove Part II

 
In my previous blog I discussed the elements of the offense of “possession of a controlled substance” that the District Attorney must prove in order to get a conviction for Health and Safety Code Section 11350. Orange County criminal defense attorneys will tell you that the elements that the DA must prove by evidence beyond a reasonable doubt are: 1) that the person being charged exercised control and dominion over the controlled substance; 2) that the person know of the controlled substance’s presence; 3) that the person charged knew that the drug possessed was an illegal drug; and 4) that there was enough of the drug at issue, (e.g., heroine, xanex, cocaine, methamphetamine, etc.), to be used as a controlled substance.
 
In my previous blog I discussed the first element—that the defendant had dominion and control, whether actual or constructive, over the controlled substance. A competent drug defense lawyer knows the second element of the charge requires that the DA prove the defendant knew of the drug’s presence. For example, if a friend leaves a package in your house, and the package contains a controlled substance, the DA must prove that you KNEW that the package contained the illegal controlled substance before you can be convicted of the offense. If someone were to hand you a bag that contained methamphetamine, the DA would have to prove that you KNEW the bag contained methamphetamine before you could be convicted of possessing it. This element can, of course, be proven by circumstantial evidence.
 
For example, if the police also found paraphernalia on your person used for smoking methamphetamine, you have a prior conviction for sales of methamphetamine, you are on felony probation for manufacturing methamphetamine, and you ran when the police officer approached you, this would be sufficient circumstantial evidence to convince a jury that you knew the bag contained methamphetamine. Orange County drug defense attorneys will tell you that there is a narrow exception that does allow you to possess otherwise illegal controlled substances. If you possess the drug. If, for example, you found a bag of cocaine in a playground, you could legally possess this cocaine if your purpose was to dispose of or destroy the cocaine or otherwise prevent other people from unlawfully possessing it. This is a recognized exception to the law prohibiting possession of illegal drugs like heroin, cocaine or methamphetamine.
 
If you are being charged with selling, transporting or giving away,  manufacturing drugs, possession with intent to sell, drug sales, or drug possession of a controlled substance, call The Law Offices of EJ Stopyro to speak to an experienced Orange County criminal defense lawyer. The consultation is free and confidential. You can also visit us at www.ejesquire.com. We have meeting offices throughout Orange County and our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675

Tuesday, April 15, 2014

Petty Theft: A Prior Theft Offense Can Be Detrimental

 
Theft is defined by Section 484 of the California Penal Code. It states, in relevant part, “every person who shall feloniously steal, take, carry away, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor of service of another, is guilty of theft.” This definition of theft, long and contorted even by the standards of an Orange County criminal defense attorney, covers just about every way that most thefts occur.
 
Grand theft is, generally, theft where the value of that which is taken exceeds $950.00, where farm crops are stolen and the value exceeds $250.00, where the property is taken from the person of another, where the property taken is a farm animal, whether dead or alive, or where the property taken is a firearm or an automobile, regardless of its value. criminal defense lawyers in Orange County know that grand theft is a “wobbler”, which means it can be charged as a misdemeanor or a felony and punished by up to a year in the county jail or by up to three years in the state prison. Petty theft includes theft of goods or services with a value of $950.00 or less. Petty theft charges usually arise out of shoplifting. Although, if the DA can show an intent to steal by the person BEFORE they entered the store, the DA will also charge the defendant with burglary. Petty theft is a misdemeanor and is punishable by up to six months in the county jail and a fine of up to $1,000.00.
 
Where a person is charged with petty theft and the value of the goods or services taken is below $50.00, the person charged with petty theft may be able to get the charge reduced to an infraction. However, your criminal defense attorney in Orange County cannot get this reduction if you have ANY other previous theft convictions on your record. Moreover, this reduction is discretionary and the District Attorney is not required to reduce the charge to an infraction. That’s why it is important for your theft lawyer to convince the DA to reduce the charge based on your record, your personal factors, and the facts of your case.
 
While petty theft is generally a misdemeanor punishable by a fine and/or up to six months of jail time, there is a rather draconian exception where the defendant has a prior theft offense. Under Penal Code Section 666, a petty theft offense becomes a wobbler, punishable as a misdemeanor by up to a year in jail or punishable as a felony by up to three years in the state prison if the defendant has a qualifying prior conviction. So, what does it take for a petty theft charge to be bumped up to a felony under this section? Well, the list is pretty complicated, even for an experienced ORANGE COUNTY CRIMINAL DEFENSE LAWYER. But basically, if the defendant has any of the following prior convictions the enhanced punishment applies:
 
·        A person with three or more prior theft convictions, including; petty theft, grand theft, theft from an elder, auto theft, burglary, carjacking, robbery, or felony receiving stolen property AND who served any jail or prison time on the prior offenses; or
 
·        A registered sex offender or a person with a prior “strike” offense with a single prior conviction for a theft offense including petty theft, grand theft, elder theft, auto theft, burglary, carjacking robbery, felony receiving stolen property AND the person served some jail or prison time for the prior theft offense.
 
A “Strike” offense is a serious or violent crime as defined in Penal Code Sections 1192.7(c) and 667.5(c). This is a very long list and includes crimes such as first-degree burglary, robbery, rape, arson, mayhem, murder, carjacking, and inflicting great bodily injury on another.
 
A person in either of the above categories who is convicted of petty theft, even a simple shoplifting, can be punished by imprisonment in the state prison for up to three years.
 
If you are facing charges for petty theft, grand theft or any other theft crimes, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic consultation with an experienced Orange County theft attorney. You can also visit our website at www.ejesquire.com. We have meeting offices throughout Orange County but our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.

Sunday, April 13, 2014

DUI License Suspension: Clearing Up The Confusion

 
The minute you are arrested for DUI your driver’s license is in jeopardy. The arresting officer will take your California driver’s license from you and give you a pink piece of paper to act as a temporary driver’s license. The officer will say something to you that, most likely, will go in one ear and out the other. The stressful experience of being arrested for drunk driving is hardly conducive to understanding the technical provisions of law the officer is explaining. Of course there is plenty of fine print on the form that contains so much twisted legal jargon on it that DUI Attorneys in Orange County find it a bit confusing. So here is the summary of what will happen to your driving privileges as a result of DMV action and the court proceedings you and your Irvine DUI Lawyer are facing.
 
You now face TWO battles to save your driver’s license and TWO suspensions of your driving privileges. The first battle is with the DMV and the second takes place in court. To start, you or your Orange County DUI Attorney must call the DMV within ten days of the DUI arrests and request a DMV hearing. (Called an Administrative Per Se “APS” hearing) If you or your Newport Beach DUI attorney don’t make the call within ten days, then you have already lost the first battle and your driver’s license will be automatically suspended. This “APS” suspension will begin thirty days after you were arrested and the length of the LICENSE SUSPENSION will depend on several factors—including any prior DUI convictions and whether you refused to take a blood test or breath test after the DUI arrest. But if you or your Huntington Beach DUI Lawyer did request an APS hearing, then no APS suspension will occur unless you lose that DMV hearing. Although a DMV hearing is difficult to win—because it is a civil proceeding with a lower burden of proof, no right to a jury, “relaxed” evidentiary rules, and a DMV employee who sits as both judge and jury—DMV hearings can be won. Moreover, the DMV hearing gives your DUI Lawyer in Orange County a great opportunity to cross-examine the police officer without the District Attorney present to make objections.
 
If you do lose the DMV hearing, then the DMV will send you and your DUI Attorney in Orange County an APS suspension letter, telling you that the suspension will begin. The APS suspension typically begins a week after you and your Mission Viejo DUI Lawyer get the suspension letter from the DMV. For a first-offense DUI the APS suspension is a four-month suspension. However, you can get a restricted license after serving 30 days of the suspension. This 30 days is then followed by five months of “restricted” driving, where you can drive to and from the mandatory Alcohol program and any work related driving.
 
The second battle for your license happens in the Orange County Superior Court. If you plead guilty to a DUI, or are found guilty by a jury of a DUI, then the court reports this conviction to the DMV. The DMV in turn issues a “conviction suspension” of your driver’s license. This conviction suspension is a six month suspension. However, like the APS suspension, the conviction suspension can be reduced to a 30 day suspension followed by a period of restriction for five months. If your DUI Lawyer in Orange County can avoid a DUI conviction in court—either by getting the charges dropped or reduced to a wet reckless, then no conviction suspension will be issued. Moreover, if you have already served any of the APS suspension, you will get credit for this toward the conviction suspension.
 
So, for example, if you were arrested for a first-offense DUI with a blood-alcohol level below a 0.15% and your Aliso Viejo DUI Lawyer lost at the DMV hearing and your driver’s license was suspended for thirty days, and then you were driving on a restricted license for 60 days before you get the conviction suspension, you will get credit for the 30 days of suspension that you already served. Thus, you will not actually serve any more suspension time on the conviction suspension. You will now only have to serve five more months of restriction on your conviction suspension and there more months of restriction on your APS suspension. More good news; these two periods of restriction run concurrently. So you will only have to serve five more months of restriction before you can get your full driving privileges returned to you.
 
It is important to note here that the APS suspension and the conviction suspension run concurrently only if the APS suspension precedes the conviction suspension. In other words, if the conviction suspension is issued before the APS suspension, you wont get credit toward the APS suspension for any time served on the conviction suspension. This is why it is important for your Costa Mesa DUI Lawyer to make sure that the DMV hearing is resolved before your case is finalized in court.
If you have questions regarding the driver’s license suspension that results from a DUI, call The Law Offices of EJ Stopyro for a free and confidential consultation at (949) 559-5500. You can also visit our website at www.EJEsquire.com. We have meeting offices throughout Orange County and our main offices is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675

Sunday, April 6, 2014

How Much Does A DUI Lawyer Cost?


If you’ve been arrested for DUI you’re now faced with the prospect of hiring an Orange County DUI Lawyer to represent you in court and at the  DMV hearing. So, you’re probably wondering, how much does a DUI Lawyer cost? And once you start looking, you’ll find that the rates charged by DUI lawyers fluctuates wildly from as little as $800.00 to $15,000.00. So why the great disparity? Well, for one thing, there may be a great difference in what you get. But also the great difference occurs because there is no regulation in the industry controlling what a DUI attorney can charge.  So it is very important to understand exactly what the DUI attorney will do for the fee he or she charges.

The expensive but reputable firms will tell you that you get what you pay for. But that isn’t always true. These firms usually charge a lot of money and provide every service that you may (or may not) need. They will represent their clients at the DMV hearing as well as in court. They will also provide retesting of the blood sample, private investigator services if needed, expert testimony from a forensic toxicologist if needed, and representation at trial. However, the vast majority of DUI cases don’t need all of these services so the client ends up paying for services they never get. Moreover, the vast majority of DUI cases never go to trial, so the client pays for an expensive trial that never happens. Other services included in the high retainer, such as expert testimony and private investigator hours are also seldom needed. This results in a tremendous windfall for the DUI law firm that manifests itself in a nice office with a big staff driving new cars but does little to help the client.
On the other hand, DUI Attorneys in Orange County who charge as little as a thousand dollars up front to handle a DUI may not give your case the attention it needs. Many low cost DUI attorneys will simply look to settle your case as early as possible without bringing suppression or discovery motions, ensuring that the breath or blood testing devices were properly calibrated and maintained, issuing subpoenas for audio and video evidence in your case, interviewing witnesses, or visiting the scene where field sobriety tests were conducted if necessary.
So, if money is no object for you, well you probably should go with an expensive firm and pay for all the services you may need, whether or not you will actually need them. But for those who don’t have unlimited funds, it is a much better option to find an Orange County DUI Attorney with solid academic credentials and extensive experience litigating DUI cases who will perform all services necessary and only charge you for those services that YOUR case needs. The only way to do this is to actually interview DUI Attorney in Orange County. This shouldn’t be a problem as most DUI attorneys in Orange County do offer a free telephonic consultation. Those that do not offer a free telephonic consultation or who insist that you come to their office should be avoided.
A good DUI lawyer should be willing to talk extensively with you over the phone about your case. The DUI Attorney should be able to formulate an initial plan, telling you up front what services your case will need, whether they will also represent you at the DMV, and what he or she will charge for those services. For example, the DUI lawyer should tell you up front whether the blood sample should be retested, whether subpoenas will need to be issued, whether witness will need to be interviewed, the possible need for a private investigator and the likelihood of litigating any suppression motion. You should not pay for a trial or for an expert witness up front because there is a good chance that your case will not to trial. However, a DUI lawyer should tell you up front what he or she will charge if your case does go to trial. But this also requires some flexibility on your part. If, for example, during the course of representation, your DUI lawyer determines that hiring a private investigator is necessary, you should not balk at the prospect of paying for it.
At The Law Offices of EJ Stopyro we happily provide a lengthy free and confidential telephonic consultation and initial plan, including costs of all services that will be or may become necessary in your case. Call us at (949) 559-5500 for your free telephonic consultation. You can also visit our website at www.EJEsquire.com for attorney credentials, case results, and information about the charges you are facing. We have meeting offices throughout Orange County for convenience to our clients. Our main office is at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675
Orange County DUI Attorneys