Thursday, April 16, 2015

DUI Arrest: Penalties And Punishment

The punishment for an Orange County DUI can be harsh and can seriously affect your ej-barspersonal and professional life. The possibilities include time in the Orange County jail or in prison, suspension or revocation of your driver’s license by the DMV, suspension or revocation of your professional license or other professional discipline, hefty fines, and more. These severe penalties are why it is important to consult with one or more Orange County DUI lawyers about possible defenses or mitigation strategies available in your case. What penalties are imposed in any specific case depends on many factors including;

  • Any prior DUI convictions
  • Was there an accident
  • Was there an injury (potential felony DUI charges)
  • Was there a hit-and-run
  • The blood-alcohol level
  • Cooperation with police
  • Whether there was a child in the car (mandatory jail)
  • Was there reckless driving
In Orange County, every courthouse has its own policies and procedures regarding punishment of DUI defendants. That’s why it is very important to find a DUI defense attorney who practices regularly in the courthouse where you are charged. A DUI attorney may be far more able to help you if they are familiar with the DA and judge who are handling your case. Prosecuting DUI defenders is a high priority in the Orange County District Attorney’s office. DUI enforcement has become a politically sensitive topic and no elected judge wants to appear “soft” on the issue. Often, the sentence you end up with will depend on the skill of your DUI defense attorney. This skill includes their training, experience and their familiarity with each judges policies and practices as well as which DAs to avoid and which to seek out. In most cases, the existence of a prior DUI conviction within the past ten years is the biggest factor for both the judge and the DA in determining how to punish a DUI. The mandatory minimum punishment increases drastically when there is one or more prior DUI convictions. The range of penalties includes the following: First-Offense DUI

  • Jail time: 0 – 6 months
  • Mandatory alcohol program: three, six, or nine-month alcohol program (depending on blood-alcohol level)
  • Driver’s license suspension: 6 months (1-year for a refusal to take a blood or breath test)
  • Court fines/fees: $2,100.00 - $3,500.00
  • Probation: 3 – 5 years formal or informal
  • SR-22 (proof-of-insurance) required for the entire length of probation
Second-Offense DUI

  • Jail time: 4 days - 1 year (in Orange County a sentence of 60 to 90 days in the Orange County jail is the standard offer)
  • Driver’s license suspension: 2 years (possibility of restricted license after 90 days if Ignition Interlock Device is installed in the vehicle)
  • Court fines/fees: $2,100.00 - $3,500.00
  • Probation: 3 – 5 years formal or informal probation
  • Mandatory alcohol program: 18 months
  • SR-22 proof of insurance required for the entire length of probation
Third-Offense DUI

  • Jail time: 4 months (mandatory minimum) - one year (the standard offer in Orange County is eight months in the Orange County jail)
  • Driver’s license revocation: 3 years (possibility of restricted license after 9 months if Ignition Interlock Device is installed in vehicle)
  • Court fines/fees: $2,100.00 - $3,500.00
  • Probation: 5 years formal or informal
  • Mandatory alcohol program: 18 months
  • SR-22 proof of insurance required for the entire length of probation
Fourth Offense DUI (wobbler—can be, and almost always is, charged as a felony)

  • Jail Sentence: 6 months – 3 years state prison
  • Driver’s license revocation: 4 years
  • Court fines/fees: $15,000.00
  • Probation: 5 years formal
  • Mandatory alcohol program: 18 months
  • SR-22 proof of insurance required for length of probation
DUI with Injury (wobbler—can be charged as a felony)

  • Up to one year in jail or up to 3 years in the state prison if charged as a felony
  • An additional one year of prison time for each additional injured victim
  • An additional 3 years of prison time if the jury finds that the injury is “great bodily injury”
  • Court fines/fees: Up to $15,000.00
  • Probation: 5 years of formal probation
  • Alcohol program: 18 months
  • SR-22 proof of insurance required for length of probation
Sentence Enhancements Certain provisions of the law either “encourage” or require a judge to “enhance” (increase) the punishment in the following instances:

  • Speed exceeding 20 mph over the speed limit on a surface street or 30 mph over the speed limit on a freeway while driving recklessly (mandatory 60 additional days in the Orange County jail)
  • Blood-alcohol level over .15% (Judge is encouraged to enhance the sentence at his or her discretion)
  • Child 14-years-old or younger in the vehicle (Judge MUST impose some jail time)
  • Refusal to take blood or breath test (Requires an additional 48-hours of jail)
  • On probation already for a prior DUI (the judge may impose some or all of the jail time hanging over your head from the prior DUI)
  • Driver under 21-years-old (mandatory one-year driver’s license suspension)
If you face charges for a DUI call The Law Offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation with an experienced Orange County DUI attorney. Our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. You can also reach us on our Contact Us page.

Sunday, April 12, 2015

DUI Arrest: What Do I Do Now?

If you are
arrested for
DUI the arresting officer will confiscate your California
driver’s license and give you a temporary paper license. Once you are
fingerprinted and “booked’, you will be released on your “own recognizance” (“OR”)
or you will be required to post bail before being released. In either case you
will have to sign a promise-to-appear, which legally obliges you, or your
Orange County DUI attorney, to appear in court on a specific date.



Once you are
released from jail, it is very important that you, or your
DUI defense lawyer, call the Driver Safety division of the DMV within ten days
of the arrest date and request a hearing in your matter. If you or your DUI
defense attorney don’t make that call, your California driver’s license will
automatically become SUSPENDED thirty days after the arrest date. Even if later
on your DUI defense lawyer discovers that the DMV cannot meet its legal burden
of proving a case against you, if you or your lawyer didn’t request a hearing
you lose the right to challenge the DMV’s decision.




The next
crucial date is the court date on your promise-to-appear. This first court
appearance is called the “arraignment” and if you, or your DUI lawyer don’t show
up for it the court will issue a warrant for your arrest. Moreover, you will
have the new criminal charge of “failure to appear” for you and your DUI
attorney to contend with.




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



Thursday, April 9, 2015

Hit And Run Law In A Nutshell

The crime of hit and run is a “wobbler” which means it can be alleges by the District hit and run

Attorney as either a felony or a misdemeanor pursuant to California Vehicle Code Sections 20001 and 20002.These sections impose a legal duty to stop at the scene of an accident where property is damages or where someone is injured. If the accident resulted in death or injury to anyone other than the driver who is being charged, then the hit and run can be filed as a misdemeanor or as a felony under §20001. However, since it isn’t required to be filed as a felony, a zealous criminal defense lawyer will often contact the DA early in order to influence the decision. If the hit and run involved property damage only and no injury, then it will be charged as a misdemeanor under §20002.



What Is The Crime Of Hit And Run?



California law requires the driver of a vehicle;

  1. involved in an accident;
  2. resulting in property damage or injury to someone other than the driver;
  3. to immediately stop; and
  4. provide certain specific information.
Since each and every element must be proven beyond a reasonable doubt a skilled criminal defense attorney can often find a "weakness" in the DA's case against a defendant.



It Doesn’t Matter Who Is At Fault



A hit and run happens when any driver (regardless of who was at fault) involved in an accident fails to stop or give the required information. So, for example, if you are stopped at a stop sign and another driver rear-ends you, damaging your car, YOU must immediately stop and provide information even though you are not at fault. If you don’t, you can, and in Orange County probably will, be charged with hit and run.



“Involvement” In The Accident Invokes The Duty To Stop



It is important to consider that a driver need only be “involved” in an accident, which doesn’t mean that the driver was involved in the actual collision. So, for example, if you pull onto a busy intersection and cause traffic to suddenly stop, and that chain of events causes cars to crash into each other, then you were “involved” in the accident even though your car avoided being hit. Therefore, you have a duty to immediately stop and provide the required information. If you fail to do so, you will probably be prosecuted in the Superior Court for hit and run.



Any Property Damage Is Enough



The property damages can be any kind of property—real or even personal property. It is usually another car that is damaged but often it is a fence post, a tree, a mailbox, a sign post, etc. In any case where property not belonging to the driver is damaged as a result of the driver’s involvement, then the driver must stop and provide the required information.



Driver Must Stop Immediately



The requirement that a driver “immediately stop” is not always literal. In fact, the Vehicle Code explicitly provides for stopping when it is safe; that the driver shall immediately stop the vehicle at the nearest location that will not impede or disrupt traffic or otherwise jeopardize the safety of other motorists.



Presenting The Required Information



A.     property damage only



The exact information that a driver is required to present depends on whether someone is injured in the accident. If there is only property damage only and no one was hurt other than the driver, then the driver must;



Present the other driver, or person in charge of the property, the driver’s name and residential address. If the driver doesn’t own the car, then the driver is required to furnish the name and residential address of the owner of the vehicle the driver is driving. If requested to do so, the driver must also provide their driver’s license and insurance information.

If the other driver is not around, as is often the case of a parked car, or where the property damaged is not another vehicle (such as a mail box or sign), and the owner or person in charge can’t be located, then the driver is required to:



Leave in a conspicuous place the name and address of the driver and/or owner and a brief statement of what happened; and

Call the police or the CHP and report the accident without “unnecessary delay”.



B.     injury



If someone other than the driver is injured in the accident, the driver must tender their (and the owner’s if the driver is not the owner) name, residential address, registration number of the vehicle, and the names and residential addresses of all persons injured in the driver’s car to any person struck or to the driver of the other vehicle and to the police or CHP if they are there. Again, if asked to, the driver must also present their driver’s license and insurance information.



Defenses To The Charge Of Hit And Run



A good criminal defense lawyer will carefully examine every aspect of your case and consider every possible defense to the charge. The facts of each individual case determine which defenses are available and which are not. Defenses successfully used by Orange County criminal defense attorneys include:



A. Lack Of Knowledge



In order to convict a defendant of hit and run, the DA has to prove beyond a reasonable doubt that the defendant knew they were involved in an accident and that someone was injured or property had been damaged. If, under the particular circumstances of the case, it is reasonable that a driver didn’t know that they were in an accident or knew that any property had been damaged, then a qualified hit and run attorney can defend on the grounds that the knowledge element can’t be proved.



For example, Derrick was backing up his fully-loaded cement mixer when it the heavy vehicle struck the bumper of a small car, barely scratching it. Derrick never felt the impact and never even knew he had been involved in a collision.



B. Only The Driver’s Vehicle Is Damaged



When a driver is involved in an accident and only the driver’s car is actually damaged, then this does not invoke any duty to stop and present specific information. For example, if Darlene rear-ends another vehicle and damages her own car but not the other, then she cannot be convicted of hit and run because she was not required to stop and present information.



C. The Identity Of The Driver Is In Question



Quite often, the police track down a hit and run driver after a witness gives a description of the vehicle or provides the license number. But a vehicle description or license plate number can only identify the vehicle that was involved in an accident. That information doesn’t tell us who was actually driving the vehicle at the time of the accident. In order to actually convict a defendant of hit and run the prosecutor must prove beyond any reasonable doubt that the defendant was the one who was actually driving at the time of the accident.



The evidence of driving very often comes in the form of the driver’s own admission to the police, either before  after being arrested. If the driver has not admitted to driving, this can be very difficult for the DA to prove. Furthermore, an admission may be suppressed if made in violation of the driver’s Miranda rights. A skilled hit and run lawyer will always look carefully at the facts around the admission and bring a Suppression Motion where justified.



Penalties For Hit And Run



A. Property Damage Only (Misdemeanor)



Jail, Probation And Fines



The crime of hit and run prosecuted under Vehicle Code §20002 (Duty Where Property Is Damaged) is punishable by up to six months in the County jail and a fine of up to $1,000.00. It is fairly common in hit and run cases for the driver to concurrently be prosecuted for DUI, which also carries possible or mandatory jail time. If you are sentenced to less than the six-months in jail, the court will put you on probation for three years. Usually this is “informal” probation meaning will have no probation officer or obligation to report. However if you commit another crime or violate any of the terms of your probation while on informal probation, a judge can sentence you to some or all of the remaining jail time.



Restitution



The court must also impose, as a condition of probation, that a hit and run defendant make restitution to the victim for any loss. Here, the law takes a bit of a strange twist, as even if the accident turns out to be the “victims’” fault, the court can still require the defendant pay for damages. This is done in most cases and the justification for such a seemingly inequitable penalty is that it acts as a deterrent and a punishment.



Effect On Driver’s License



A hit and run conviction triggers a two-point penalty toward your driver’s license.

Other Options



In misdemeanor cases not involving alcohol or drugs, an experienced hit and run lawyer will make every attempt to get the charge of hit and run dismissed. For example, in some cases a criminal defense attorney can negotiate a plea deal with the District Attorney where the case is dismissed if the driver attends a class, provides a DNA sample, and stays out of trouble for 90 days. This specific arrangement is called Deferred Entry of Judgment and it is an extremely valuable plea option because it allows the defendant to avoid a conviction for a crime of “moral turpitude”.



A favorite tool used by us at The Law Offices of EJ Stopyro is the “Civil Compromise”. This arrangement is specifically allowed by statute. It is found in California Penal Code Section 1377. Under this Statute, if the facts of the case aren’t bad and the defendant has no previous record, the District Attorney can often be persuaded to dismiss the charges altogether so long as the defendant pays restitution to the victim and the victim gives a statement that he or she does not desire prosecution.



B. Hit And Run With Injury Or Death



Jail, Probation and Fines



Felony hit and run prosecuted under Vehicle Code §20001 is punishable by imprisonment in the County Jail for up to one year or by imprisonment in the California State Prison for a period of 16 months, 2 years, or 3 years. There is also a fine between $1,000.00 and $10,000.00. The fine imposed by the court will include a “penalty assessment” which is pretty much a court-imposed tax of around 250%. If the judge doesn’t give you the maximum sentence, you will be placed on felony probation  (or parole) for up to five years.



If the accident caused death or permanent, serious injury, then the court must sentence the defendant to a minimum of 90 days and up to one year in jail or by imprisonment in prison for 2, 3, or 4 years. “Permanent, serious injury” is defined by the penal code as loss or permanent impairment of function of a bodily member or organ. (Penal Code §20001(d))



If the defendant is also convicted of DUI and is also found guilty of Gross Vehicular Manslaughter under California Penal Code §191.5, then the defendant must be sentenced to a an additional consecutive term of five years in the state prison. (Vehicle Code §20001(c)) Consecutive means that the five-year term is added to the underlying sentence in the case.



Restitution



The court is also required to impose the condition that the defendant make restitution to the victim for any loss, including property damage, medical bills, etc.. Even if the accident turns out to be the “victims’” fault, the court maintains the authority to require the defendant to pay all damages.



Effect On Driver’s License



A hit and run conviction triggers a two-point penalty toward your driver’s license.

Wednesday, April 8, 2015

How To Get A DUI Reduced To Reckless Driving

Many people
are arrested for DUI. But just because you are arrested for DUI doesn’t mean
you will be convicted of it. Even in cases where your blood-alcohol result is
over the legal limit of 0.08%, you or your
DUI lawyer still have an opportunity to negotiate a plea to something
other than DUI. The most common “reduction” offered by most district attorneys in
California is the charge of reckless driving.






There are
two types of reckless driving pleas; a “
wet reckless” and a “dry reckless”, found in
sections 23103 and 23103.5 of the Vehicle Code. Wet reckless means that alcohol
was involved and if the defendant is convicted of a DUI within ten years of the
wet reckless conviction, it will be punished as a second offense. Dry reckless
has no alcohol component and will not be considered a prior DUI offense.






The trick to
you, or your
DUI attorney, negotiating a reckless driving plea
instead of a DUI is in the strength of the DA’s case. The DA does not hand out
DUI reductions to everyone who wants one. Rather, the DA is motivated pretty
much entirely by how they perceive the strength of the case against you. If you
or your DUI defense lawyer can point to a specific weakness in the case and
convince the DA that you are willing to take the case to trial, they may relent
to a reduction to a wet reckless or dry reckless.


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

Tuesday, April 7, 2015

What Is Domestic Violence?

Any domestic violence lawyer will tell you that a crime of
violence, such as assault, battery, or even threatening a person becomes a
crime of domestic violence when the person committing the crime is in a close
relationship with the victim. This “close relationship” can be one of parent,
domestic partner, spouse, ex-spouse, cohabitant, or even boyfriend or
girlfriend. When a crime of violence falls into the legal rubric of domestic
violence the defendant faces additional penalties, such as possible mandatory
jail time, a year-long batterer’s treatment program, a “protective order” (restraining
order) dictating terms of contact with the victim, and enhanced terms of
probation.





Any experienced domestic violence attorney knows that more
innocent people are arrested for domestic violence than any other crime. Often,
a false accusation comes from the heat of passion. Other times a false
allegation of domestic violence is more calculated and used to gain an upper
hand in a child custody dispute or out of jealousy or spite.


The Innocent Defendant


When one person falsely accuses another of domestic violence
out of anger or indignation, they typically are quick to recant their
allegation. The “victim” in these cases is usually eager to tell the District
Attorney that they no longer wish to press charges. But this desire has little
or no effect on the DA. You see, it is the State and not the victim who is
pressing charges against defendant. Moreover, it is just as common for a real
victim of domestic assault to recant than a false victim. So the DA would
rather leave it to a jury to decide what happened than dismiss a domestic
violence case because of a recanting victim.


When the victim no longer wants to press charges the DA will
usually compel the victim to testify by personally serving them with a
subpoena. This is an Order from the court and if the victim doesn’t show up and
testify the judge will order their arrest.


Is Domestic Violence A Felony Or Misdemeanor?


In Orange County, crimes of domestic violence are usually
"wobblers". This means that the DA can use their discretion to file
the domestic violence charge as either a misdemeanor or a felony. In exercising
their discretion the DA will generally consider factors such as the seriousness
of the injury, the extent of the defendants criminal record, whether the
defendant is also charged with other crimes arising from the same incident, and
whether the defendant resisted or cooperated when arrested.


Should I Consult With A Domestic Violence Lawyer?


Anyone charged with a domestic violence crime, whether
domestic battery (California Penal Code 243), causing corporal injury (Penal
Code Section 273.5), child endangerment (Penal Code Section 273), Elder Abuse
(Penal Code Section 777), or Criminal Threats (Penal Code Section 422), should
definitely consult a domestic violence lawyer. Most reputable domestic violence
attorneys in Orange County provide a free and confidential consultation.


Protective Orders (Restraining Orders)


In most domestic violence cases the court will issue a “protective
order”. This Order sets the parameters of contact that the defendant is allowed
to have with the victim and in most cases the Order allows for no contact at
all. In fact, the protective order will make it a crime for the defendant to be
within a certain distance of the victim. This can be very troublesome when the
defendant and victim live together, especially if they have kids together.
Unfortunately, the victim has little to say about the order at first. And if
the defendant violates the terms of the protective order they will go straight
to jail. If the defendant was out of custody on bail when they violated the protective
order the judge will likely revoke the defendant’s bail and remand the
defendant to custody until the case has been litigated. Furthermore, violating
the terms of a protective order is itself a crime.


The terms of a protective order can be modified by a judge. The
victim must file a petition, usually with the help of the defendant’s criminal
defense attorney, requesting modification. Upon request, a judge can allow for “peaceful
contact” between the defendant and victim. This allows them to cohabitate and
live a “normal” life. But many judges require the defendant to have at least
started the Batterer’s Treatment Program before granting the motion. Also, some
judges will not grant a request to modify the protective order unless the victim
attends a “Personal Empowerment Program” or “PEP classes”.


What To Do If You Face Domestic Violence Charges





First, if you have been served with a criminal emergency protective
order, you must make sure you comply with its terms until your domestic
violence lawyer can bring a petition to have it modified. Extreme caution must
be exercised here as even a text or voice message is grounds for the judge to
revoke your “own recognizance” status or your bail. It is important that you
obey all the terms of the protective order as this is the best way of
protecting your freedom now.


Next, consult with an experienced domestic violence defense
lawyer. Call The Law Offices of EJ Stopyro at (949) 559-5500 to consult
with a seasoned Orange County criminal defense attorney and learn what will
happen in court, the strengths and weaknesses of your case, the possible penalties
for the charges you face and any defenses that you can raise in your case.

Sunday, April 5, 2015

Man Arrested For DUI Steals Police Car From Arresting Officer

The California Highway Patrol arrested Aaron Teruya, a
twenty-five year-old San Diego man, for suspicion of DUI after Teruya crashed
into another vehicle near Fallbrook. After arresting Teruya for DUI and
advising him of his right to his dui
lawyer
 , the officer handcuffed him and put him in the back of the CHP
cruiser. The officer remained outside the CHP vehicle, supervising the towing
of Teruya’s vehicle. While in the back seat of the police car, Teruya moved his
feet over his cuffed hands, bringing his hands to the front of his body. He
then jumped in the driver’s seat of the patrol car and drove away.





The CHP used the GPS in the patrol car to find the vehicle a
short time later. It was abandoned in a brushy field after being involved in an
“off road collision”. Teruya was found hiding in the brush near the abandoned
patrol vehicle. Teruya, who did not invoke his right to a criminal defense lawyer before
talking, told reporters “I was already in the patrol car, and I just didn’t want
to go to jail. That’s pretty much it”, he said. Now he faces charges for two
counts of DUI (one in a police car), resisting arrest, and felony auto theft.


If you have questions about DUI law or any other criminal
matter call The Law Offices of EJ Stopyro at (949) 559-5500 to speak to an
experienced DUI attorney
in Orange County
. You can also reach us at www.ejesquire.com. Our main office is at 32072
Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.

Friday, April 3, 2015

DUI Arrest: Refusing To Take A Blood Or Breath Test


Under California law, (California
Vehicle Code Section 23612), every driver lawfully arrested for DUI must submit
to a blood or breath test. There is no right to consult with your Orange County DUI attorney before submitting to the test. If you refuse to take a blood or
breath test you will be charged with a “refusal” along with DUI. A refusal is a
separate crime and will result in additional penalties, including mandatory
jail time in many cases.






 


First-Offense DUI


 


A driver arrested for
first-offense DUI who refuses to take a blood or breath test faces a one-year
suspension of their driver’s license with no possibility of a restricted
license. If the DUI resulted in injury to anyone other than the driver, then they
also face a mandatory 48 hours in the Orange County jail.


 


Second
Offense DUI


 


If the driver has a
prior DUI within 10 years of the new DUI charge and the driver refuses a test
the law requires a mandatory additional 96 hours of time in the Orange County
jail, (on top of the jail sentence for the underlying DUI), and a two-year driver’s
license revocation for a refusal. Again, your DUI lawyer will not be able to
qualify you for a restricted driver’s license if the refusal is found true.


 


Third Offense DUI


 


Where the driver has two
prior DUIs within the past 10 years and refuses the test, they face an
additional 10 days in Orange County jail and a three-year license revocation. They
will not be eligible for a restricted license.


 


What Counts As A Refusal?


 


If the driver’s DUI
defense attorney called the DMV within ten days of the DUI arrest and requested
a hearing, (called an APS hearing), then the burden is put on the DMV to prove
its case against the driver before the driver can be penalized by the DMV for a
refusal. At the DMV hearing California Vehicle Code Section 13558(c)(1)
requires the DMV to prove four things:


1)http://www.ejesquire.com/tp.gifThat
the police officer had reasonable cause to believe that the person had been
driving a motor vehicle while under the influence of alcohol or drugs;


2)http://www.ejesquire.com/tp.gifThat
the person was lawfully arrested for DUI;


3)http://www.ejesquire.com/tp.gifThat
the person was advised that a refusal would result in a suspension or
revocation of their driving privileges; and


4)http://www.ejesquire.com/tp.gifThat
the person refused or failed to complete the test after being requested to test.


 


Oddly enough, the DMV
does not have to prove that the person was actually driving. Rather, they only need to prove that the
officer had reasonable cause to
believe
that the person has been driving. This issue sometimes arises
when the police find a person near or inside of a parked car. In such a case, the
driver’s DUI defense attorney may actually get the case dismissed in the Orange
County court but still lose at the DMV hearing.   


 


Choice Of Test


 


In Orange County, a
driver arrested for DUI is required to take either a blood or breath test. The
urine test is not available here. But the law clearly states that if the
arresting officer has specific evidence indicating that the driver may also be
under the influence of drugs, then the officer can insist that the driver submit
to a blood test. For example, if the officer smells marijuana coming from the
car or finds any drugs, legal or illegal, inside the car, then the office will
be within his authority to demand the driver take a blood test. A failure to
comply will be charged as a refusal.


 


The Officer Must Advise The Driver Of
The Consequences of Refusing


 


In order to be penalized
for a Refusal, the officer have fully admonish the driver of their legal duty
to take the test and the consequences of refusing to do so. The admonition must
consist of the following exact language read from the back of a form. If the
arresting officer does not read the exact language on this form, then the driver
was not properly admonished of their legal duty to submit to a test. If they
were not properly admonished, a driver cannot be punished for refusing.  


 


What Constitutes “Refusing”


 


Once the arresting officer
properly admonishes the driver of their legal duty to take a test, the driver’s
consent to submit to the test must be “clear and unambiguous”. Moreover, the
driver gets only one chance to agree to take the test after they have been
properly admonished. If the driver does not consent to take a test after being
admonished, then the Refusal is complete.


 


Once a driver refuses,
they can be charged with Refusal, even if they change their mind and agree to the
test. One offer plus one rejection equals a refusal, even if you later comply. In
many cases where a driver adamantly refuses, the police will get a warrant and
literally hold the driver down while a blood technician draws the blood. Again,
even though the police eventually get the blood, the driver will still be
charged with a refusal.


 


If the officer attempts
to read the admonition to the driver and the driver is disruptive during the
reading the driver can be charged with a refusal. Where the driver is
cooperative and agrees to a test but become uncooperative during the test, this
is also a refusal. Willful failure to complete a test is also a refusal. For
example, where a driver agrees to take a breath test, but during the test purposely
doesn’t blow hard enough to produce a result.


 


If a driver chooses one
test but is unable to complete it, then they must submit to the other test. For
example, where a driver chooses the breath teat but cannot blow hard enough or
long enough (perhaps due to asthma or other respiratory condition), then they must
submit to the blood test. Failure to so submit constitutes a refusal. However, where
a driver has hemophilia or is taking anticoagulant medicine, they are exempt
from taking a blood test.


 


Defenses


 


Police officer induced confusion


http://www.ejesquire.com/tp.gifhttp://www.ejesquire.com/tp.gif


If the driver’s DUI
lawyer can show that the driver was confused with respect to their obligation
to take a test and the confusion arose because of something the officer said or
did, then the driver cannot be punished for refusing. For example, if the
officer read the driver their Miranda rights (which state they have the right
to an attorney) right before the test, and the driver reasonably, although
mistakenly, believes they have the right to talk to an attorney before they
take the test, then the confusion is the officer’s fault.


 


Driver Not Placed Under Arrest At
Time Of Request


 


The driver’s obligation
to a blood or breath test doesn’t begin until the driver is officially arrested.
The driver’s DUI lawyer will most likely subpoena any audio and video in the
case. Since many police agencies in Orange County, including the CHP and
Sheriff’s Department, have audio and video recordings of the encounter with the
driver. Sometimes the recordings prove that the officer didn’t place the driver
under arrest before admonishing them of their duty to submit. In these cases
the driver will avoid the penalties for refusing.  


 


Lack Of Reasonable Suspicion


 


The driver’s obligation
to submit to a blood or breath test doesn’t arise unless the officer had a
lawful reason to stop the driver in the first place. The officer must have
observed the driver break the law before a stop can be considered legal. If the
stop is not based on a law violation, then usually the refusal must be
"set aside" at the DMV. In the Superior Court a skilled DUI defense
attorney will file a suppression motion and, if the judge agrees that there was
lack of reasonable suspicion to make a legal stop, the case will likely be
dismisses.


 


Improper Admonishment


 


It is typical in DUI
arrests for the arresting officer to “informally” (without reading the
admonition form verbatim), ask the driver to take a blood or breath test. This
"informal" request is not a legal admonition and does not oblige the
driver to take a test. If the officer does not read the exact admonition from
the DMV form, then the admonition is improper and the refusal must be "set
aside" at the DMV and cannot be punished in court. Again, this is usually
proved by the audio recording that the driver’s DUI attorney gets from the
District Attorney.


 


Driver Sustained Head Injury


 


Where a driver has
suffered a head injury and that injury makes it difficult or impossible for the
driver to understand the rather complex admonition, then the driver cannot be
held accountable for a refusal and it must be "set aside" at the DMV.
This is also a defense in court and usually requires the driver’s DUI defense
lawyer to have a head-injury specialist testify in court.


 


Involuntary Intoxication


 


Where a driver is too
intoxicated to understand the admonition because they are too drunk, they are
still, in most cases, on the hook for the refusal. But if the intoxication isn’t
voluntary, then they have a defense. Involuntary intoxication occurs, for
example, where someone puts a drug or alcohol in the driver’s food or drink
without them knowing about it. In these cases the intoxication is involuntary
and the refusal must be "set aside" at the DMV. Involuntary
intoxication is also a defense in court and if the driver’s DUI defense
attorney can establish it there the case could be dismissed or the driver found
not guilty by a jury at a DUI trial.


 


Operator Error


 


Where a driver chooses
to take a breath test and they correctly blow into the machine, but the machine
doesn't give a reading, then there is a good chance that the machine doesn’t work
or the operator isn’t using it properly. When this happens the driver cannot be
charged with a refusal. If the driver’s DUI attorney can show that the error
was the officer’s and not the driver’s the driver cannot be penalized.


 

Wednesday, April 1, 2015

Selling Drugs: What Could Happen?



While mere possession of most illegal drugs is now a mere
misdemeanor in California, possessing illegal drugs you intend to sell is still
a serious felony that can be punished with prison time. Whether a judge sends someone
to prison or gives them a short stay in the Orange County Jail often depends on
their record, the amount of drug they had, whether they were armed, whether
they resisted arrest, and their Orange County criminal defense attorney’s
ability to highlighting their virtues and find a weakness in the prosecution’s
case.





Possessing drugs like methamphetamine, cocaine, heroin,
hashish, and even marijuana is criminalized by Health & Safety Code
Sections 11351, 11351.5, 11378 and 11378.5. These sections allow for up to five
years of prison time for possession with intent to sell. Other “enhancing”
statutes mandate even more mandatory prison time where specific criteria are found,
such as the defendant having a prior conviction, a firearm being involved or
the defendant’s status as a gang member.


In order to convict a defendant of possession with intent to
sell, the prosecutor must prove these five elements beyond any reasonable
doubt:


1)     
That the defendant exercised control of, or the right
to control the drug;


2)     
That the defendant had knowledge of the drug’s
presence;


3)     
That the defendant knew the substance was an illegal
drug;


4)     
That there was a sufficient amount of the drug to sell;


5)     
That the defendant had the specific intent to sell the
drug.


These five elements provide fertile ground for a criminal defense attorney to raise reasonable doubt. A skilled criminal defense lawyer
is often able to expose a weakness in the prosecution’s case—the DA’s inability
to prove just one of the elements above. Just bringing the weakness to the DA’s
attention can draw a very favorable settlement offer.


The typical evidence used by the DA to prove “specific
intent to sell the drug” includes; large amount of drug consistent with sales,
prepackaged portions of the drug, scales, pay-owe sheets, large amounts of
cash, baggies or balloons, and text and voice messages from the defendant’s
phone. However, there are often Constitutional problems with the search and
seizure of evidence in drug cases. This is yet another area rich with opportunity
for a good drug defense lawyer to argue for suppression of evidence.


If you need to talk to an experienced criminal defense
attorney call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and
confidential consultation. You can also reach us on our contact page. Our main
offices is at 32072 Camino Capistrano, 2nd floor, San Juan
Capistrano, CA 92675.