Misdemeanor Hit And Run: Can I Avoid Jail?

Misdemeanor hit-and-run is defined by California Vehicle
Code Section 20002. This section essentially requires the driver of a vehicle
who is involved in a collision—directly or indirectly, to stop at the scene of
the collision and provide their identity, contact information and insurance
information. criminal defense
lawyers are well aware that failure to meet the requirements of California’s
misdemeanor hit and run law will result in steep penalties. Conviction of
misdemeanor hit and run carries the possible penalty of six months in the
Orange County jail.

A good criminal
defense attorney will seek to find a remedy that does not require their
client to serve any time in jail. My favorite alternative, and one I almost
always request from the court, is called a compromise. Under Penal Code Section
1378, if a victim of a hit and run acknowledges to the court that they have
received satisfaction for the injury—that is, the defendant has paid for the
damage, and also states that they no longer desire prosecution of the
defendant, the judge has the discretion to dismiss the case against the
defendant. If the judge allows the civil compromise, not only does the
defendant avoid jail time, they avoid a conviction altogether.

Obviously a judge does not grant a civil compromise in every
case. In fact, it is the exception. This is where the help of a skilled Orange County criminal defense
attorney can be critical. It is often the discussion between your defense
attorney and the judge that takes place back in the judge’s chambers that makes
all the difference. If the criminal
defense lawyer is persuasive, the judge can be moved to allow for the civil
compromise to be allowed and the charge of hit and run to be dismisses. This
will depend, of course, on the facts of the particular case.

If you face charges for hit and run, call The Law Offices of
EJ Stopyro at (949) 559-5500 for a free and confidential telephonic
consultation with an experienced criminal defense attorney. You can also visit
us online at www.ejesquire.com. Our main
office is at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675.

Misdemeanor Arrest: Your Right To Release On Citation

When someone is arrested for a misdemeanor offense, such as a first-offense DUI or misdemeanor Domestic Violence, they are usually issued a citation and released. When the officer decides to issue a citation, the defendant must sign the citation, giving their promise to appear at a specific Orange County court at a specific time and date. If the defendant, or their Orange County criminal defense lawyer doesn’t show up for court at the designated time and place, the judge will issue a “bench warrant” for the defendant’s arrest. If the defendant refuses to sign a citation, the officer will arrest the defendant and take them before a magistrate or judge.

However, criminal defense attorneys in Orange County know that a misdemeanor arrest does not mean that you will automatically be released on citation. Although the law generally requires that a defendant charged with only a misdemeanor must be cited and released, there are specific instances laid out in California Penal Code Section 853.6 where a police officer can take the defendant into custody where bail will be set. These instances include, but are not limited to, the following:

1)      Where the arrestee is so intoxicated that they are a danger to themselves or others;

2)      Where the arrestee needs medical attention and cant care for their own safety;

3)      Where the arrestee has a warrant out for their arrest or cannot produce satisfactory identification;

4)      Where immediate release would somehow jeopardize prosecution of the offense;

5)      Where there is a good chance that the offense would continue if the person were not taken into custody—this often happens in situations of ASSAULT AND BATTERY;

6)      Where there is reason to believe that the defendant will NOT appear as promised; and

7)      When the driver is arrested for DUI, whether DUI with injury, drug DUI or DUI with priors.

Thus, in cases of most misdemeanors, such as Criminal Threats or theft, the defendant is entitled to release on citation. However, in the case of any DUI arrest, the defendant is not entitled to release on citation. Thus, in many counties across California, even those arrested for a non-injury first-offense DUI are required to post bail before they can be released from the Orange County jail. In Orange County however, most of those arrested for first-offense DUI are released on citation without posting bail. This is a policy based on overcrowding in the Orange County jail.

Where bail is required, the amount is usually determined by the Orange County Bail Schedule. This document lists suggested bail amounts for specific crimes. For example, the bail amount set for a second-offense DUI is $10,000.00. This means that the defendant, or more likely someone on the defendant’s behalf, will give that amount to the court as surety for the defendant’s appearance in court. If the defendant, or their DUI Attorney, doesn’t appear in court at the appointed time and place, this amount is forfeited.

More commonly, the defendant’s DUI Lawyer will put the defendant in contact with a bail bondsman. The bondsman will charge the defendant a specific sum of money, usually ten percent of the bail amount, and will then post the entire bail amount on the defendant’s behalf. The sum paid to the bail agent is non-refundable. When the case is over, the bail bondsman gets the full ten thousand dollars refunded and makes a thousand dollar profit. However, if the defendant runs away and doesn’t show up for court, the bail bondsman loses the entire ten thousand dollars, which is forfeited to the court.

If you have been arrested for a 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 at www.ejesquire.com. We have offices in Costa Mesa and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

Pepper Spray: Felon In Possession Of Tear Gas

As an Orange
County criminal defense lawyer, I often come across instances where people
use pepper spray as both an offensive and defensive weapon. It is used both by
criminals, such as in the perpetration of a Domestic Violence,
burglary or assault and battery. It is also used by victims of would-be
attackers to ward off an attempted or completed assault and battery. Pepper
spray is an aerosol spray containing oils derived from cayenne pepper. It is an
extreme irritant to eyes and respiratory passages and can completely disable a
person. This non-lethal spray has become a favorite self-defense tool for the
general public in California. Although pepper spray is readily available in
stores throughout the state, not everyone can lawfully possess pepper spray.






While Orange
County criminal defense attorneys know that pepper spray is an excellent
non-lethal self-defense weapon, the California Penal Code makes it a crime for
a person who has been convicted of any felony or assault crime from to buy or
possess tear gas. Penal Code Section 22810 specifically says

“no person convicted of a felony
or any crime involving assault under the laws of the United States, the state
of California, or any other state, government or country, or convicted of
misuse of tear gas under subdivision (g), shall purchase, possess or use tear
gas or any tear gas weapon.”

 Section 17240 of the California Penal Code defines tear gas
as “any liquid, gaseous or solid substance intended to produce temporary physical
discomfort or permanent injury through being vaporized or otherwise dispersed in
the air.” Thus, a felon carrying pepper spray will be charged with felon in
possession of tear gas.

Another group of people who are forbidden from carrying
pepper spray are minors. Section 22810 is minors. The section reads “No minor
shall purchase, possess, or use tear gas or any tear gas weapon.” However,
minors 16-years old and older may carry and purchase pepper spray with a parent’s
permission. Also prohibited from carrying tear gas is any person addicted to a
narcotic drug. This section doesn’t prohibit persons convicted of a drug crime,
such as drug
sales, drug possession, or manufacturing
drugs from having pepper spray but only those who are currently addicted to
a narcotic drug.

If you have been charged with a crime in Orange County, call
The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
consultation with an experienced criminal
defense lawyer in Orange County. You can also visit us at www.ejesquire.com. We have offices in Costa
Mesa and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano,
CA 92675.

Residential Alcohol Treatment: An Alternative To Jail

A DUI conviction can have devastating consequences
including jail time, loss of employment where driving is required, a DUI
conviction on your record, loss of license, large court fines and costs for an Orange County DUI Attorney. Although most first-offense DUI convictions in
Orange County don’t result in jail time if there is no accident, excessive
speed, child in the car or other aggravating circumstances, a defendant with a
prior DUI conviction within ten years requires mandatory jail time.

In the
Orange County courts the length of the jail sentence depends on many factors including
how many prior DUI convictions the defendant has within the past ten years,
what the defendant’s blood-alcohol content was, whether there was an accident
or injury, whether there was any bad driving, how the defendant behaved towards
the police and others, and other aggravating or mitigating circumstance. These
are some of the factors that your DUI Lawyer in Orange County discusses with the judge when it comes to settling a
DUI case.

Typically,
in Orange County, a second-offense DUI will be punished by 60 to 150 days in
the Orange County jail. A third-offense usually draws between 120 and 240 days
in jail, and a fourth-offense is almost always charged as a felony and is given
a year to 16 months in the California state prison. While jail or prison time
is very hard to avoid for a third or fourth offense, a skilled DUI defense attorney can often persuade an Orange County
judge to allow for an alternative to jail in the case of a second-offense DUI.
One of the alternatives most favored by Orange County judges is treatment for
the defendant in a residential alcohol treatment facility.

A
residential alcohol facility is a live-n facility where residents are required to
remain sober and attend extensive group and individual counseling for alcohol
addiction. Usually, the residents are encouraged or required to go to work or
do volunteer work. The cost of these facilities varies greatly and it is the
defendant who is responsible for paying. The length of time required in the residential
alcohol treatment facility is subject to negotiation but typically a judge will
give day-for-day credit toward the jail sentence. So, for example, if the
District Attorney agrees to settle a second-offense DUI for 90 days of jail
time, the judge may be convinced by the defendants Orange County DUI lawyer to allow the defendant to do 90 days in a residential
treatment facility instead.

If you face
charges for a 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 ORANGE COUNTY DUI defense
lawyer. You can also 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.

Can The Cops Wait Outside A Bar To Make A DUI Arrest?

DUI Attorneys in Orange County will tell you that law enforcement
officials throughout the state of California are motivated to detect and arrest
those who are driving under the influence of drugs or alcohol. This includes
the California Highway Patrol as well as local police departments and county
sheriff departments. There is plenty of financial incentive to these police
agencies to make DUI arrests, such as grants from Mothers Against Drunk
Driving (MADD). Moreover, it is always politically important for law
enforcement agencies to devote resources—officers and vehicles—to exclusively
enforce DUI laws. These special DUI officers are often referred to as “saturation
patrols”.

As a DUI Lawyer in Orange County I’ve seen law enforcement use various
methods to find DUI drivers. DUI CHECKPOINTs is a favorite of local police
agencies as well as the Orange County Sheriff’s department. There is a specific
body of law that has developed dealing with requirements of these DUI
checkpoints. For example, the DUI checkpoints must be clearly marked, well lit,
and run in a safe manner. Also, drivers approaching the DUI checkpoint must
have the opportunity to turn and avoid it. Also, the time and location of the
DUI checkpoint must be published to the public so to give advanced notice of
the DUI checkpoint.

Another
method all too familiar to Orange County DUI lawyers  is to use saturation patrols. The main mission
of these officers is to detect and arrest drunk drivers. During prime hours,
these officers will look for “any legal reason” to stop vehicles in order to
determine if the driver is impaired by drugs or alcohol. They usually look for
any small violation, such as a broken license plate lamp, to pull a driver
over. If the officer detects any odor of alcohol, he or she will conduct a full
DUI investigation on the driver, complete with field sobriety tests and a
voluntary breath test or preliminary alcohol screening test (PAS).

Yet another
technique used by the cops and despised by DUI Attorneys is to park their car close to a bar
or establishment that serves alcohol. Then, the officer can observe the bar
patron as they exit and follow them when they drive away. The officer will then
look for any legal reason to stop a driver. Often the officer will use a
violation that is never otherwise addressed, such as an air freshener hanging
from the mirror and “obstructing” the driver’s view. Or a trailer hitch that
obstructs the officer’s view of the rear license plate. Then, when the officer
stops the driver, he or she will make contact with the driver and inevitably
smell alcohol coming from the driver. This triggers a full Dui investigation.

Although
this last tactic of “bar sitting” seems a little unfair, the United States
Supreme Court has held that it is, in fact, legal. The Court said that as long
as the officer finds a legitimate law violation, then the stop is legal. The
subjective intent of the officer is not a factor. Whether the officer observed
a legitimate law violation is the issue when determining the legality of the
stop and subsequent DUI arrest.

If you are
charged with a DUI call The Law Offices of EJ Stopyro at (949) 559-5500. You’ll
speak to an experienced DUI Attorney in Orange County who will assess your case right over
the phone. You can also visit 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.

DUI Speed Enhancement: Mandatory Jail

Being arrested and convicted of a DUI in Orange County can bring severe DUI penalties, including time in the Orange County jail, thousands of dollars in court fees and DUI Lawyer in Orange County fees, loss of your driver’s license, and the completion of an ALCOHOL PROGRAM.  Of course the harshness of the penalties will depend on factors such as whether you have any prior DUI convictions within the past ten years, whether anyone was hurt, whether there was an accident, and what your blood-alcohol concentration or BAC was.

For most first-offense DUI’s where the driver has no prior DUI convictions and where there was no accident or injuries or other aggravating circumstances, a defendant’s DUI Attorney in Orange County can easily secure a no-jail deal in exchange for pleading guilty to a DUI. However, there are circumstances where the District Attorney must impose some jail time, even for a first-offense DUI.

California Vehicle Code Section 23582, known as a DUI speed enhancement, requires that a court impose a MINIMUM of 60 days of jail time. In order for this enhancement to apply, the District Attorney must prove that the driver: 1) is guilty of a DUI; 2) That during the course of the DUI the driver drove 20 miles per hour over the speed limit on a surface street or 30 miles per hour over the speed limit on a freeway; and 3) that the driver drove in a reckless manner. If the jury finds all three elements to have been met, then the court MUST impose at least 60 days in the Orange County jail.

It is important to note that the speed enhancement doesn’t apply just because a driver was DUI and was driving the requisite 20 or 30 miles per hour over the speed limit. The third element must also be present—the driver must have been driving recklessly. The fact that a driver was drunk, driving and speeding does NOT prove recklessness. To prove recklessness, the DA must show other conduct, such as intentionally swerving, racing, or playing bumper tag with another driver. Reckless driving means driving with a willful or wanton disregard for the safety of others. It means that you are engaged in risky conduct and you know or should know and appreciate this risk.

So, in order to avoid this speed enhancement, your Orange County DUI Attorney must show some reasonable doubt that you were driving drunk (either too impaired to drive safely or with a blood-alcohol concentration of 0.08% or more), that you were exceeding the speed limit by 20 or thirty miles per hour (did the cop have a working radar or was it an educated guess?), or that you were driving in a reckless manner. Often, if your Orange County DUI lawyers  can convince the DA that they can show reasonable doubt, the DA will offer to drop the speed enhancement in exchange for the driver’s guilty plea to the DUI charge. In the case of a first-offense DUI this often means the difference between 60 days of jail and no jail at all.

If you want to talk to experienced DUI Lawyer for free about DUI law and defenses, call The Law Offices of EJ Stopyro at (949) 559-5500 for a confidential telephonic consultation. You can also visit us at www.ejesquire.com. We have offices in Costa Mesa and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

Domestic Violence: Can My Lawyer Appear On My Behalf In Court?

Under California law, when a person has been charged with a misdemeanor
offense, the defendant's Orange
County criminal defense lawyer can appear in court on the defendant's behalf.
(California Penal Code section 977(a) specifically grants this option to misdemeanor
defendants. This means that in the case of a misdemeanor you can hire a
CFRIMINAL DEFENSE ATTORNEY and you may never have to actually go to court.
Since going to court and dealing with the District Attorney and a superior
court judge can be a frighteningly intimidating experience, as well as very
time consuming, most of my misdemeanor clients are extremely happy to
learn that they can avoid the experience altogether.



Unfortunately this authority to appear via your criminal defense lawyer in Orange
County has specific
exceptions. White a criminal defendant is charged with either a Domestic Violence crime or a DUI charge, then the
defendant's right to appear exclusively through their Domestic Violence
Lawyer in Orange County or DUI defense lawyer is curtailed. In the case of a DUI charge, section
977 allows the court to require the defendant's presence at the arraignment
(usually the first court appearance) and at the time of the plea and
sentencing. However, in most cases in Orange County, the judge does NOT order
the defendant present at these times. In the case of a misdemeanor charge of
domestic violence, including cases of Criminal Threats, Corporal Injury and Domestic Battery, section 977 specifically
REQUIRES that the defendant be present at the arraignment, the time of plea,
and at sentencing. At these hearings the defendant's Orange County Domestic Violence Attorney cannot simply appear on
behalf of their client. The court can order the defendant present at other
times if it chooses.



Many of my misdemeanor domestic violence clients are quite surprised that they learn
they are required to appear in court. After all, why should domestic violence
defendants be required to appear when those who are accused of assault and
battery don’t have to? Well, while it may seem unfair at first blush, there is
actually a very good reason for the requirement. You see, when someone is
accused of domestic battery or any other domestic violence crime, the judge may
be required to serve that domestic violence defendant with an Emergency
Protective Order. This is, in essence, a RESTRAINING ORDER prohibiting the
domestic violence defendant from having contact with the victim in the case.
Since this Protective Order must be served on a defendant personally, and is not effective if served
on their Domestic
Violence Lawyer, the law
requires that defendant to appear in court at the arraignment. Moreover, since
there is often a new, continuing protective order that is issued by the court
at sentencing, the domestic violence defendant is required to be present at
that hearing as well.

 

If you have
been arrested for any domestic violence offense, including criminal threats or Child
Endangerment,  call The Law Offices of EJ Stopyro at (949)
559-55500 for  confidential and free
telephonic consultation with an experienced domestic violence attorney in
Orange County. You can also visit us at www.ejesquire.com.
We have offices in Costa Mesa and at 32072 Camino Capistrano, 2^nd
floor, San Juan Capistrano, CA 92675.

DUI Probation: What Your DUI Lawyer Wants You To Know

Conviction for a DUI, whether in Orange County or anywhere else in California, will result in the defendant being on DUI probation for a period of three to five years. During this probationary period, the defendant must abide by the terms of the probation. If the probationer is found by a judge to have violated the terms of DUI probation, the judge can impose of some or all of the jail time hanging over their head. Since a typical DUI probationer is exposed to around a year of jail time for ANY probation violation, it is important to understand that even if you are represented by the best Orange County DUI Attorney, it is very difficult to defend against the allegation of a probation violation.

Any Orange County DUI lawyer will tell you that the problem with defending against a probation violation charge is really twofold: first, the terms of probation are very extensive and very general, such as “cooperate with the probation department and law enforcement” or “do not drive with any alcohol in your system.” Secondly, at a probation violation hearing, the defense does not have many of the procedural safeguards that they have at trial. So, in order to establish a probation violation, the DA or probation department does not need to show that the probationer actually broke any law, but merely didn’t live up to the terms of their probation. For example, if a probationer fails to make a payment of court fees on time, this will be alleged as a probation violation and subject the probationer to a long jail stay.  Also, if the DUI probationer is absent from the mandatory alcohol program, or if the alcohol program instructor kicks the DUI probationer out of class for some program violation, this also will result in an allegation of a DUI probation violation.

So, conduct not amounting to a law violation can land a DUI probationer in hot water. And as you can see, it doesn’t take much to amount to a DUI probation violation. Moreover, once a DUI probation violation has been alleged, the DUI probationer, and their DUI Lawyer in Orange County, are NOT entitled to a trial by jury. Rather, at a probation violation hearing, the issue is decided by a single judge. Also, the burden of proving a DUI probation violation is much lower than the burden of proof at a criminal trial. At a Dui trial, the DA must prove its case by proof beyond a reasonable doubt—the highest possible burden of proof. At a DUI probation violation hearing however, the judge need only find that the case is proven by a preponderance of the evidence—that is to say, that it is more likely than not that the allegation is true.

If the judge does find that the DUI probation violation has been proven by a preponderance of the evidence, the judge has total discretion in dolling out any time in the Orange County jail that is hanging over the probationer’s head. Furthermore, if the conduct that constituted the DUI probation violation is also a new crime, such as another DUI, then the DUI probationer faces additional jail time for the new offense.

If you have been arrested for a DUI or charged with a violation of your DUI probation, call The Law Offices of EJ Stopyro at (949) 559-5500 for a confidential and free telephonic consultation with an experienced DUI defense attorney. You can also find out more about DUI law, including DUI probation violations, at www.ejesquire.com. We have offices in Costa Mesa and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.