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, 2^nd
floor, San Juan Capistrano, CA 92675 and at 1901 Newport Blvd., Suite 350,
Costa Mesa, CA 92627.

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, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

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, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

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.4^th 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, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd. Suite 350, Costa Mesa, CA 92675.

DUI Speed Enhancement: Mandatory Jail Time

DUI Attorneys in Orange County know that If you are convicted of a
first-offense DUI in California you face up to six months of jail time. A
second or third offense DUI within ten years carries up to one year in jail. And
a fourth offense DUI within ten years can be punished as a misdemeanor or a
felony. If it is charged as a felony, as it almost always is in Orange County,
it is punishable by up to three years in the state prison.

Despite
these extremely harsh punishments, any Orange County DUI lawyer will tell you that the maximum punishment is rarely
given, especially in the case of a first-offense DUI. In fact, in Orange
County, a first-offense DUI will usually not draw any jail time at all.
However, there are instances where a judge simply MUST sentence a DUI defendant
to time in the Orange County jail. In certain cases, the law requires that a
judge “enhance” any sentence with actual jail time. One particular instance of
this is a DUI “speed enhancement” found at Section 23582 of the California
Vehicle Code.

Vehicle Code
Section 23582 states that any person who driver a motor vehicle 30 or more
miles per hour over the posted freeway speed limit, or 20 or more miles per
hour over the speed limit on other roadways, in a reckless manner, while they
are also driving under the influence of alcohol or drugs in violation of
Vehicle Code Section 23152 or 23153 [DUI with injury], must serve an additional 60 days
in jail on top of the sentence they get for the DUI. So, for example, if you
are convicted of a first-offense DUI and the speed enhancement in Orange
County, you may get sentenced to no jail for the first-offense DUI and yet get
sentenced to 60 days in the Orange County jail for the speed enhancement.
Unfortunately, as your DUI defense Lawyer knows, the judge’s hands are tied.
The law REQUIRES that the judge impose this 60-day sentence if you are
convicted of the DUI and the speed enhancement is found to be true.

However, it
is important to remember that speeding alone is not enough to establish the DUI
speed enhancement. It must also be shown that the driver drove in a reckless
manner. And the fact that the driver is DUI is NOT evidence of reckless driving
for this enhancement. Thus, a skilled DUI defense attorney can often successfully challenge the speed enhancement where
there is no independent showing of reckless driving. Another way your DUI
lawyer can defend against the DUI speed enhancement is to negotiate a
settlement with the Orange County District Attorney whereby the driver pleads
guilty to a wet reckless instead of a DUI.

A wet
reckless has many advantages to a DUI and it can be difficult to get the DA to
allow it. However, in the case of a DUI speed enhancement, the wet reckless
charge has the added advantage of avoiding the enhancement altogether.
Remember, the DUI speed enhancement only applies if the driver is convicted of
DUI, not a wet reckless.

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

The DUI DMV Hearing: What If I Need More Time

California
law requires that a peace officer—including Orange County sheriff’s deputies,
CHP officers, and police officers from Irvine, Huntington Beach and every other
city to confiscate the California driver’s license from any driver they arrest
for DUI. Consequently, when a peace officer makes a DUI
arrest in Orange County, whether at a DUI checkpoint or as a result of a DUI
investigation after a traffic stop or accident, that officer will take your
California driver’s license and give you a pink piece of paper to act as your
temporary license. The paper also includes a warning that either the driver or
the driver’s Orange County DUI defense attorney must call the DMV to request an APS
hearing within ten days of the DUI arrest. Failure of the driver or their DUI
lawyer to make that call will result in an automatic driver’s license
suspension. The length of the suspension depends on several factors including
whether the driver has any prior DUI convictions as well as the driver’s blood
or breath alcohol level as determined by a breath test or blood test.

When the
driver, or their Orange County DUI Attorney calls the DMV to set the  DMV hearing (APS hearing), they will be given the choice of an
in-person hearing or a telephonic hearing. The driver or their DUI attorney
must also be sure to ask for a “stay” of the license suspension as well as “discovery”.
The stay of suspension means that any suspension must not start until and
unless the driver or their DUI defense lawyer loses the DMV hearing. Discovery
means that the police report, the DS 367, and the forensic alcohol report
should all be sent by the DMV to the driver or their DUI lawyer. Then, the DMV
will provide the driver or their DUI attorney with a list of available dates
and times for the hearing. The date of the hearing is usually set about 45 days
from when the driver or their DUI attorney make the call.

When the
time for the DMV hearing rolls around, the driver or their DUI Lawyer in Orange County may need more time to prepare for the hearing.
Government Code Section 11524(a) gives the DMV hearing officer discretion to
grant a request for a continuance by the driver or the driver’s DUI defense
attorney. However, the driver or their lawyer must make a showing of “good
cause” to get a continuance. For example, if the “discovery” didn’t arrive
until shortly before the DMV hearing and the driver’s DUI lawyer wants to
subpoena witnesses or information referred to in the discovery, things such as
audio or video recordings or calibration and maintenance logs for any
breath-testing device used. This would be good cause to grant a continuance to
the DMV hearing. If a continuance is granted, the DMV hearing officer and the driver’s
DUI defense attorney will set a new date, usually three or four weeks down the
road, for the hearing.

If you have
been arrested for DUI, DUI WITH INJURY or a DRUG DUI call The Law Offices of EJ
Stopyro today at (949) 559-5500 for a free and confidential consultation with
an experienced Orange
County DUI defense lawyer . Or visit us at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and at
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Unlawful Arrest: Can You Use Force To Resist It?

In order to arrest a person in the California a police
officer must have either an arrest warrant, which is an order from the court
directing the police to arrest a person, or probable cause. Probable cause
means that the facts and circumstances were such that any reasonable and
prudent person would believe that the person being arrested has committed or is
committing a crime. If a police officer arrests a person without probable
cause, it is that person’s Orange
County criminal defense attorney to challenge the arrest in court as being
illegal.

In Orange County it is NOT unusual for the police or the
Orange County sheriff’s deputies to make unlawful arrests without the required
probable cause. We Orange County
criminal defense lawyers see this all too often. The favorite charges for
these officers are Penal Code
Section 647(f) [Drunk in Public] and Penal Code Section 148(a) [Resisting, Obstructing or Delaying
a Peace Officer]. The police often arrest people for these violations without
any probable cause at all. For instance, it is common for an officer to arrest
someone for being “drunk in public” who criticizes or questions the police when
that person has alcohol on their breath. If the person who has the temerity to
question or criticize or not to automatically obey the police does NOT have
alcohol on their breath, then the officer may choose to arrest them for Section
148(a)—resisting, obstructing, or delaying a peace officer.

When the police make an unlawful arrest, most of the people
they arrest more or less comply and submit to the officer’s force. However,
some people are so indignant at being wrongfully arrested that they physically
resist or fight back when the officer makes the arrest. These people are
typically charged with an additional charge of assault on a peace officer (Penal Code Section 243(b)).

Now, you might think that if the police wrongfully and
unlawfully arrest someone, the arrestee SHOULD have the right to fight back.
Unfortunately, as any criminal
defense lawyer in Orange County will tell you, this is not the law,. Penal
Code Section 834a states “If a person has knowledge, or by exercise of
reasonable care, should have knowledge, that he is being arrested by a peace
officer, it is the duty of such person to refrain from using force or any
weapon to resist such arrest.” (emphasis added) Thus, according to the law,
when a police officer wrongfully and unlawfully arrests us, we MUST submit to
that arrest.

Therefore, if you are wrongfully arrested for ANY charge, be
it Domestic
Violence, auto
theft, drug sales, hit and run, or any other charge, and you fight back, you will
also be charged with assault on a peace officer. Later, in court, your criminal
defense attorney can show that the arrest was unlawful. This may get the
underlying charge dismissed but it will not affect the charge of battery on a
peace officer under Penal Code Section 243(b). For example, if you are
wrongfully arrested for Criminal Threats and you use force to resist the unlawful arrest, your
criminal defense attorney in
Orange County may get the criminal threats charge dropped but you still
could be convicted of the battery charge.

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

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

Assault And Battery: Your Right To Self Defense

We all know that it is illegal to use force against someone
or even to threaten to use force against them. California Penal Code Section
242 states: “A battery is any willful and unlawful use of force ore violence
upon the person of another.” The unsuccessful or incomplete attempt to commit a
battery on someone is an assault under Section 240 of the Penal code. Moreover,
any Orange County criminal defense
lawyer knows that if you commit a battery on a police officer or person
acting in a peace officer type capacity, then you will be charged with battery
under Penal Code Section 243(b), which carries harsher penalties than battery
under Section 242.

A battery charge is very serious. If it is charged as a
misdemeanor under these sections it is punishable by up to a year in the Orange County jail. But there are defenses to a battery charge
that have been used successfully by criminal
defense attorneys in Orange County. The most common defense is the defense
of self-defense, which also includes the right to use force in defense of
others. According to the law, you can use force against someone if:

1)     
You reasonably believed that YOU or a THIRD PERSON was
in imminent danger of suffering bodily injury or of being touched unlawfully;
and

2)     
You REASONABLY believed that the immediate use of force
was necessary to defend against that danger; and

3)     
You used no more force than was reasonably necessary to
defend against the danger.

The danger must be imminent. So if the person threatens harm
at some future date, you are not justified in using force NOW to defend against
some possible future harm. Your criminal defense lawyer must be sure to
persuade the jury of an immediate threat. Also, if the person has threatened
you with harm in the past, then the jury gets to hear about these previous
threats too. If your assault
lawyer can successfully show the jury that you were threatened by this
person in the past, then the judge will tell the jury that since you have been
threatened by this person you are entitled to act quicker when it comes to
using force to defend yourself.

Also, you have no duty to retreat from someone who is
threatening you. Even if retreating would have effectively removed you from the
threat, you have no duty to retreat. Under California law you are entitled to
stand your ground and defend yourself from a threat. You can use only
reasonable force to match a threat. For example, a large, young, strong man who
is being assaulted by a very small, weak, and frail assailant would probably be
found to use UNREASONABLE force if he used a baseball bat to defeat the attack.
Your assault defense lawyer must be able to defend the amount of force that you
used and convince a jury that, under these particular circumstances, the amount
of force was reasonable.

If you have been charged with assault and battery, domestic
battery, assault on a police officer, Corporal Injury,
Criminal
Threats, or assault with a deadly weapon, you will need the advice of an
experienced Orange County criminal defense attorney. Call The Law Offices of EJ
Stopyro at (949) 559-5500 today for a free and confidential consultation. We
have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.