Orange County Domestic Violence: Criminal Threats

Law Offices of EJ Stopyro

Orange County Domestic Violence Lawyer
Criminal Defense Attorney in Orange County

Although a typical domestic violence case involves an allegation of domestic battery or some kind of physical infliction of injury, it is not unusual for a complaint filed in court in an Orange County domestic violence case to also include a charge of making a criminal threat (also known as a “terrorist threat”). Not every threat can be prosecuted as a crime under the criminal threats statute. Penal Code Section 422 states:

“Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear of his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year or by imprisonment in the state prison.”

So, only threats of “death or great bodily injury” are criminalized by this law and will be prosecuted by the Orange County District Attorney in domestic violence court. Threats to divorce or to obtain full custody of children do not qualify as criminal threats. Moreover, the person making the threat must INTEND it to be a threat. Domestic violence lawyers know that under California law, angry utterances or “ranting soliloquies, however violent or angry, are not criminal threats. People v. Teal (1998) 61 Cal.App.4^th 277, 281) Also, a criminal threat must have indications of seriousness and deliberate statements of purpose. In In Re Ricky T. (2001) 87 Cal.App.4^th1132, a teacher opened a door and accidently hit a student with the door. The student said “I’m going to get you”. The Court of Appeal held that the statement lacked deliberate statements of purpose. The court also found that the remark was ambiguous and was no more than a vague threat of retaliation.

Domestic violence attorneys also know that a threat need not convey a precise time or manner of execution in order to be prosecuted. In People v. Franz (2001) 88 Cal.App.4^th 1426, the defendant put his finger to his lips and made a “Shushing” noise while sliding his fingers across his throat. This was held to be an unequivocal statement of purpose and conveyed sufficient gravity of purpose and immediate prospect of executing the threat.

If you are facing charges for domestic violence, including criminal threats, call the Law Offices of EJ Stopyro today at (949) 559-5500. You can speak directly with an experienced Orange County criminal defense lawyer with outstanding credentials and case results. The consultation is free and confidential. Or visit our website at

Law Offices of EJ Stopyro

Criminal Defense Lawyer in Orange County
Domestic Violence Attorneys in Orange County

Orange County DUI Arrest And The Dry Reckless

Law Offices of EJ Stopyro

Orange County DUI Lawyer

DUI Attorneys in Orange County

If you are facing charges for an Orange County DUI, then the District Attorney has filed a complaint against you alleging that you violated Section 23152 of the California Vehicle Code. During the court proceedings, your DUI lawyer will evaluate all the evidence against you, including the results of the breath test or blood test, the results of the field sobrietytests, calibration and maintenance logs for these devices, any video in the case and the arrest report.

If there are weaknesses in the case, such as a blood-alcohol test result that is close to or below 0.08%, then the DA might settle the case against you if you plead to a lesser charge. A “wet reckless” is usually the next lowest charge and its advantages are discussed in our previous blog and on our DUI website on the Wet Reckless page. But sometimes your DUI attorney can get an even better offer. A “dry reckless” is a simple traffic violation that is NOT alcohol related. Although the fines for a dry reckless and a wet reckless are about the same, the dry reckless has some distinct advantages over the wet reckless.

A wet reckless conviction will count as a prior DUI if, within the next ten years, you are convicted of a DUI. So if you plead guilty to a wet reckless today, and three years from now you are arrested for a DUI, it will be charged as a “second offense” carrying mandatory jail time. (In Orange County a typical second-offense DUI gets 45 to 90 days of jail time.) However, if your Orange County DUI lawyer gets you a dry reckless, this DOES NOT COUNT as a prior DUI if you are arrested again.

Another advantage of the dry reckless over the wet reckless is that a conviction for a dry reckless will usually NOT cause your insurance to go up. Some insurance companies will increase a driver’s rates for a wet reckless conviction. The DA will usually not offer a dry reckless unless there are some serious problems with the evidence or a blood-alcohol level BELOW 0.08%.

If YOU are facing charges for a DUI in Orange County it is important that you consult with an experienced Orange County DUI defense lawyer with outstanding case results. Call the Law Offices of EJ Stopyro at (949) 559-5500 The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County
Orange County DUI Attorney

Orange County DUI Refusal Defenses

Law Offices of EJ Stopyro

Orange County DUI Lawyer

DUI Attorneys in Orange County

If you were arrested for an OrangeCounty DUI or DUI with injury the arresting officer should have told you that you MUST submit to either a blood test or a breath test under California’s implied consent law. (California Vehicle Code Section 23612) If you “refuse” to take one of these chemical tests, then you will be charged with a refusal in the court proceedings and at the DMV hearing. (See what constitutes a “refusal” in our previous blog or visit our website and click refusal) If the allegation of a refusal is sustained, it could mean mandatory jail time and a longer license suspension. If you ARE charged with a refusal, here are some of the possible defenses:

Officer Induced Confusion

If the police officer said or did anything during the DUI investigation that would reasonably have caused you to be confused with respect to your legal obligation to take a test, then a refusal cannot be sustained against you. For example, if the officer read you your Miranda rights (which state you have the right to a DUI attorney) directly before the test, and you mistakenly thought you had the right to talk to a DUI lawyer in Orange County before taking the test, then the confusion is reasonable.

Not Under Arrest Yet

Since the obligation to take a test of your breath or blood does not arise until after you have been arrested, if your DUI lawyer shows that the arresting officer admonished you about the test before you were actually arrested, then there is no refusal.

No Probable Cause to Stop You

The obligation to take a blood test or breath test also does not arise unless the officer had a lawful reason to stop you in the first place. DUI attorneys know that the officer must have observed you break the law before a stop can be considered legal. If the stop is not based on a law violation, then the refusal can’t be sustained in the court proceedings or at the DMV hearing.

Not Properly Admonished

Often, once an officer makes an arrest for DUI, he or she will informally ask the arrestee if they will take a blood or breath test. This "informal" request does not constitute a proper admonition of your obligation to take a test and the consequences if you don't. If the officer does not read the exact admonition as reproduced above, then the admonition is not proper and the refusal must be "set aside".

Head Injury

If a person arrested for an OrangeCounty DUI has suffered a head injury and that injury makes it difficult or impossible to understand the complex admonition, that person cannot be held accountable for a refusal and it must be "set aside".

Involuntary Intoxication

If you are arrested for DUI and are too intoxicated to understand the admonition, that will not save you from a refusal unless the intoxication was involuntary. For example, if someone puts a drug or alcohol in your food or drink without you knowing it, then the intoxication is involuntary and the refusal must be "set aside".

Operator Error

If you choose to take a breath test and you properly blow into the machine, but the machine doesn't give a reading, then this is probably the result of operator error. In this case you cannot be charged with a refusal. Since the error was not yours, the refusal must be "set aside".

If you are charged with a DUI call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyers in Orange County
Orange County DUI Attorney

DUI Arrest: Refusal To Take A Chemical Test

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

If you are stopped by the police at a DUI checkpoint or for a traffic violation and the officer arrests you for driving drunk or driving under the influence of drugs (DUI drugs) after a DUI investigation (which usually includes roadside fieldsobriety tests), then California Vehicle Code Section23612 requires that you submit to a chemical test to determine your blood-alcohol content. You do NOT have the right to have your Orange County DUI lawyer present during the test. In Orange County a chemical test means either a blood test or a breath test. If you refuse to take a chemical test then the law imposed additional penalties on you including additional jail time, a nine-month alcohol program for a first-offense (as opposed to the typical three-month DUI school), and a longer driver’s license suspension period following your DMV hearing. These penalties are heightened if there was a DUI with injury.

What Constitutes a Refusal

Dui lawyers in Orange County know that once the police officer reads you the admonition, your consent to submit to the test must be “clear and unambiguous”. Moreover, you only get one chance to agree to take the test after you have been properly admonished. If you do not consent to take a test after being admonished, then that constitutes a refusal.

If the police do a “forced draw” where they hold you down and take your blood, you still will face a refusal charge. Even if you refuse at first but change your mind and agree to take a test later, and do take a test later, you can still be charged with a refusal based on your first answer. One offer plus one rejection equals a refusal, even if you later comply.

If the officer attempts to read the admonition to you and you are disruptive during the reading, this too is a refusal. Also, if you initially agree to take a test but are uncooperative during the test, this is also a refusal. For example, if you agree to take a breath test, but during the test you purposely don’t blow hard enough to get a result, then this is a refusal.

If you choose one test but are unable to complete it, then you must submit to the other test. So, for example, if you choose the breath teat but cannot blow hard enough or long enough (perhaps due to asthma or other ailment), then you must submit to the blood test. Failure to do so constitutes a refusal. However, if you suffer from hemophilia or if you are taking anticoagulant medicine, then you are exempt from taking a blood test

If you’ve been charged with a refusal and a DUI in Orange County it is important that you consult with an Orange County DUI attorney. Call the Law Offices of EJ Stopyro at (949) 559-5500 to consult with an Orange County DUI defense attorney today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Attorneys in Orange County
Orange County DUI Attorney

 

Penalties For Violating A Domestic Violence Restraining Order

Law Offices of EJ Stopyro
Orange County Domestic Violence Lawyers
Criminal Defense Attorneys in Orange County

If you’ve been arrested or convicted of domestic battery or child endangerment you were probably served with a domestic violence protective order or restraining order. Obeying the terms of the domestic violence protective order should be a top priority. Here’s why:

CaliforniaPenal Code Section 273.6 makes it a crime to knowingly and intentionally violate the terms of a protective order or restraining order. Generally, a first-offense for violating a domestic violence protective order is a misdemeanor punishable by up to one year in the Orange County jail and a fine of $1,000.00. If you are arrested for this crime it is important to consult with a domestic violence lawyer in Orange County right away. If the violation results in physical injury to the victim the law mandates a 30-day minimum jail sentence. This mandatory minimum can be reduced to two days if your domesticviolence defense lawyer can convince a judge that reduction is in the “interest of justice” based on the seriousness of the violation, the circumstances of the case, the safety of the victim and YOUR progress in counseling.

If you are convicted of violating a domestic violence protective order (restraining order) and you have a prior conviction for the same offense within the past seven years, then the offense becomes a “wobbler”. This means that the Orange County DistrictAttorney can charge the offense as either a misdemeanor (punishable by up to a year in jail), or as a felony (punishable by up to three years in the stateprison.

If you have a prior conviction for violating a domesticviolence protective order within one year of the present violation AND the current violation results in physical injury to the victim, then the offense is a wobbler. Moreover, even if the DA files it as a misdemeanor, the law mandates a minimum six-month jail sentence. However, if your domestic violence attorney can convince the court that the mandatory six-month sentence is not in the interest of justice, the court can reduce the mandatory minimum to thirty days. Your domestic violence lawyer must convince the judge that the reduction is warranted based on the seriousness of the current offense, the circumstances of the offense, that the victim’s safety is not jeopardized by the reduction, and that you are making progress in your court-mandated counseling.

What The DA Must Prove

In order to convict someone of violating a protective order or restraining order, the DA must prove ALL of the following:

1)      A court lawfully issued a written order prohibiting the defendant from specific conduct;

2)      The protective order was issued pursuant to specific legal code section;

3)      The defendant knew of the court order and knew of the specific requirements of the order;

4)      The defendant had the ability to follow the court order; and

5)      The defendant willfully violated the court order (that the defendant did it willingly or on purpose). (Judicial Council of California Criminal Jury Instruction #701)

Thus, if your domestic violence defense lawyer in Orange County can show that you were not properly served with the restraining order, did not have a real choice but to violate the order, or that the violation was not intentional then the DA may not be able to convict you of violation of a domestic violence protective order or restraining order under California Penal Code Section 273.6.

To discuss more defenses to a charge of violating a domestic violence restraining order call the Law Offices of EJ Stopyro today at (949) 559-5500. You’ll speak to an experiencedOrange County domestic violence attorney. The consultation is free and confidential.

Law Offices of EJ Stopyro

Criminal Defense Lawyers in Orange County
Orange County Domestic Violence Defense Attorneys

 

Orange County DUI: Getting The Police Report And Other Evidence

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

Most of our clients who were pulled over by the police (or stopped at a DUI checkpoint), given field sobriety tests, and arrested for drunk driving (DUI), don’t understand why the officer stopped them in the first place and are sure that they passed all the field sobriety tests. Moreover, the officer usually doesn’t tell them what they blew on the voluntary breath test (Preliminary Alcohol Screening Test or PAS). Typically, someone who has been arrested for a DUI, DUI drugs or DUI with injury will ask their DUI lawyer inOrange County how they can get ahold of the police report and see what the officer wrote. When someone who has been arrested for a DUI contacts the OrangeCounty Sheriff’s Department, California Highway Patrol, or city police department and asks for the report they are told that they must go to court to get it.

There are usually two ways of obtaining the DUI arrest report. The first way is to get it through the Orange County DistrictAttorney’s office.  However, the DA will not make the DUI arrest report available until the arraignment for charges of DUI or wet reckless. Even on the day of arraignment prosecutors are reluctant to release the report to anyone but a DUI defense attorney. Also, the DUI arrest report and the forensic alcohol report are usually the only evidence available at the arraignment. If you want other evidence from the DA, such as the video/audio recording from the police car or calibration and maintenance logs for the machine used in the blood test or breath test, this must be requested from the DA and can take several weeks for the DA to get.

The other way of getting the DUI arrest report and other evidence relevant to your DUI case is through the DMV. In order to do this you, or your DUI attorneys in Orange County, must demand a DMV hearing to contest any license suspension. Also, when the demand for a DMV hearing is made, you must specifically request “discovery” in the matter. This discovery includes the DUI arrest report and the forensic alcohol report. Once a hearing is set the DMV will mail this discovery to you or to your DUI defense lawyer. If your DUI attorney gets the report he or she SHOULD immediately send a copy to the client. Other evidence, such as the video/audio and calibration and maintenance logs for the device used in the blood test or breath test can be obtained through the DMV subpoena process.

An initial review of the DUI arrest report and the forensic alcohol report will reveal your chances of getting the DUI reduced to a wetreckless or of beating the charges altogether. If you’ve been charged with driving under the influence of drugs or alcohol in Orange County and you would like to consult with an Orange County Drug DUI attorney with outstanding case results and credentials, call the Law Offices of EJ Stopyro at (949) 559-5500. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyer in Orange County
Orange County DUI Attorneys

Orange County Domestic Violence: Domestic Battery

Law Offices of EJ Stopyro
Orange County Domestic Violence Lawyers
Criminal Defense Attorneys in Orange County

In California a battery is defined as “any willful and unlawful use of force of violence upon the person of another.” (California Penal Code Section 242) Any domestic violence lawyer in Orange County will tell you that under California law, a battery becomes a crime of domestic violence if the victim is in a special relationship to the defendant. Penal Code Section 243, one of Orange County’s primary domestic violence laws, makes battery a crime of domestic violence if the victim is the spouse, ex-spouse, cohabitant, parent of the defendant’s child, fiancé, fiancée, or in a dating relationship with the defendant.

While ordinary battery (battery committed on someone not in a special relationship to the defendant) is punishable by up to six months in jail, domestic battery is punishable by up to one year in the Orange County jail. Also, domestic violence attorneys in Orange County know that if you are convicted of domestic battery under Penal Code Section 243, you will be required to attend a minimum 52-week batterer’s treatment program at your expense. But perhaps most importantly a conviction for a crime of domestic violence on your record can have far reaching consequences on employment and background checks. If you have a prior conviction under Section 243 then a new conviction will carry mandatory jail time.

If the victim suffered “serious bodily injury” as a result of the domestic battery, the offense becomes a “wobbler”, meaning it can be charged as a felony and is punishable by up to four years in prison. Therefore, if the battery resulted in injury you should consult with an Orange Countydomestic violence lawyer without delay. If the victim did not suffer serious bodily injury the offense is a misdemeanor.

One common defense used by domestic violence defense attorneys is to show that a “dating relationship” did not exist under this statute. “Dating relationship”, as used in this statute, is defined as “frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement.” Thus, the DA must show that the defendant had frequent intimate associations in order to establish that a dating relationship existed. To discuss more defenses and defense strategies contact a domestic violence lawyer in Orange County. Call the Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro
Criminal Defense Lawyers in Orange County
Orange County Domestic Violence Defense Attorneys

Wet Reckless And The Driver’s License Suspension

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

If you are arrested for driving under the influence of alcohol or drugs (DUI) in Orange County you not only face harsh penalties from the court proceedings but you are also in jeopardy of having your California driver’s license suspended by the DMV. The DMV typically issues TWO suspensions for a DUI: the first is the administrative per se suspension (APS) which will be imposed automatically if you or your DUI lawyer in Orange County don’t request a DMV hearing. This suspension is outlined in Section 13353.2 of the California Vehicle Code. If a hearing is requested, the APS suspension is imposed if and when your DUI attorney loses the hearing.

The second driver’s license suspension is called the conviction suspension. This is found in Section 13352 of the California Vehicle Code. If and when you are found guilty or plead guilty of a DUI or a wet reckless, the court automatically reports the conviction to the DMV. The length of suspension depends on many factors including whether you have any prior DUI’s or DUI suspensions within the past ten years and, for first offenses, what your blood-alcohol level was on the breath test or blood test.

One advantage to the “wet reckless” is that the driver’s license suspension period may be much shorter than for a DUI, particularly if you have prior DUIs on your record. As any DUI attorney in Orange County will tell you, there is NO conviction suspension for a wet reckless. However, there is still the APS suspension to contend with. If you or your DUI lawyer did not request an APS hearing or if your lawyer lost the hearing, then an APS suspension will be imposed. The length of the APS suspension for  a first-offense is four months. If you have any priors within 10 years, the suspension period is one year.

However, if you do have priors and you are facing the one-year APS suspension, your Orange County DUI attorney can get you a restricted license if you are only convicted of a wet reckless and you did not refuse to take a blood or breath test. Under Section 13353.3(b)(2)(c) of the Vehicle Code you will be eligible for a restricted license after serving 90 days of suspension. However, in order to get a restricted license you must do the following:

·         Must enroll in a nine-month alcohol program (and not be terminated for any reason)

·         Must install an Ignition Interlock Device in your car and maintain it for nine months

·         Must pay a reissue fee

·         Must provide proof-of-insurance (SR-22) for three years

To protect your license you should consult with an OrangeCounty DUI attorney. Call the Law Offices of EJ Stopyro at (949) 559-5500 to consult with an OrangeCounty DUI lawyer with outstanding case results today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyer in Orange County
Orange County DUI Attorneys

Orange County DUI And Your Commercial Driver’s License

Law Offices of EJ Stopyro
Orange County DUI Lawyers
DUI Attorney in Orange County

If you are the holder of a California Commercial Driver’s License an arrest for driving any vehicle while under the influence of alcohol or drugs (DUI) can have devastating penalties. Specifically, if you are CONVICTED of a first-offense DUI you will lose your commercial driver’s license for one year (3 years for hazardous materials). A second-offense requires revocation for LIFE. That’s why it’s so important to talk to an experienced Orange County DUI lawyer if you have been arrested for a DUI in Orange County.

California Vehicle Code Sections 23152 and 23153 are the DUI laws in California. Section 23152(a) makes it a crime to drive with any alcohol or drugs in your system if the drugs or alcohol make you too impaired to drive safely. Orange County DUI lawyers know that the field sobriety tests and your driving—often at a DUI checkpoint—are the main evidence for prosecution under this section. Section 23152(b) makes it a crime to drive a motor vehicle with a blood-alcohol of 0.08% or higher, even if you aren’t the slightest bit impaired by the alcohol. The blood test and breath test are the primary evidence here. And under section 23152(d) it is illegal to drive a commercial vehicle with a blood-alcohol level of 0.04% or higher. Section 23153 is almost identical to 23152 but is charged only when there is a DUI with injury to someone other than the driver. A refusal to take a blood or breath test is also considered a DUI and will also result in the loss of your commercial license.

 If you are a holder of a California Commercial Driver’s License, you will lose that license if you are convicted of DUI under any of these laws, even if you were driving your own car at the time. Also, your DUI attorney in Orange County will tell you that if you were driving a commercial vehicle at the time of the DUI arrest, then your license suspension imposed after the DMV hearing will be a straight suspension with no allowance for a restricted license.

 California Vehicle Code Section 15300 and 15302 list the mandatory penalties for conviction of drunk driving (DUI) as well as other offenses. Some of the other violations that will result in the loss of your commercial driver’s license include: hit and run, using a motor vehicle in the commission of any felony, driving a commercial vehicle on a suspended, revoked, or cancelled license and evading a peace officer. So if you are charged with any of these offenses you need to consult with a criminal defense lawyer inOrange County.  Other non DUI related grounds for loss of a commercial driver’s license are listed in California Vehicle Code Section 13369. They include having too many accidents, excessive use of alcohol or drugs, irrational behavior, and too many tickets.

If you are facing charges for a DUI in Orange County your right to drive is on the line. For more information on how to protect your license and to stay out of jail call the Law Offices of EJ Stopyro at (949) 559-5500. You can speak to an experienced Orange County DUI lawyer with outstanding caseresults. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

DUI Lawyer in Orange County
Orange County DUI Attorneys