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.