DMV Hearing: What You need To Do within 10 Days Of A DUI Arrest

If you have
been arrested for a DUI in Orange County, or anywhere else in California for
that matter, then the officer who made the DUI arrest most likely took your
California driver’s license from you and gave you a pink piece of paper as a
temporary license. This paper is thick with small print legal terms that even
an Orange County DUI defense lawyer would have trouble understanding. A
quick review of the temporary license will leave most readers with the
understanding that there is a ten day window for something or another. In fact,
many people who have been arrested for DUI call our office asking what exactly
they must do within this ten day period. So here’s the answer.

The ten day
window gives the driver who was arrested for DUI the opportunity to set a  DMV hearing (called an APS hearing) to determine whether there is
enough evidence to justify a suspension of the driver’s driving privileges. If
the DUI arrestee, or the arrestee’s Orange County DUI defense attorney, does NOT call the DMV Driver Safety
office (a different DMV office than the one you normally go to) and request
this hearing, then the DMV will automatically suspend the driver’s license.
This automatic suspension, however, does not begin ten days after the DUI
arrest. Rather, the automatic driver’s license suspension begins 30 days after
the DUI arrest.

If the DUI
arrestee or their DUI lawyer does call the DMV and request the APS
hearing, then the DMV will mail a new paper temporary driver’s license to the
driver and will schedule the DMV hearing. The hearing is typically scheduled
for a time about 45 days down the road from when the driver or their DUI LAWYER
made the request for the DMV hearing. Thus, even if you believe that a
suspension is inevitable, as most people who have been arrested do, simply
scheduling a hearing will buy you more time before the suspension begins.
Moreover, your DUI defense Attorney will be able to “continue” or
postpone the hearing for another month or two if you need more time.

But apart
from pushing what seems like an inevitable suspension down the road, scheduling
a DMV hearing can   be very important for
another reason: your DUI Attorney may win the hearing. If your DUI
lawyer does win the hearing, you MAY be able to avoid a suspension altogether
if your DUI defense lawyer also gets the charges dropped in court or reduced to
a wet reckless. Sometimes, what seems like an
airtight case against you is much weaker than you thought. Perhaps the
breath-testing machine wasn’t properly calibrated. Or perhaps the officer who
administered the breath test did it improperly. There are specific steps that
the officer must take to make sure the breath test is reliable such as ask the
person arrested for DUI if they burped or belched within the 15 minutes prior
to the breath test. Or perhaps the officer didn’t conduct a 15-minute
observation of a driver BEFORE they took the breath test.

If you have
been arrested for a DUI it is important that you consult with an experienced
DUI attorney about your rights and options. Call The Law Offices of EJ Stopyro at (949) 559-5500 today for a free and confidential consultation about
your case. You can also visit us online at www.ejesquire.com.
We have offices at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675 and 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Domestic Violence Arrest: Silence May Be Your Best Option

Thanks to the hundreds of cop shows on TV we are all
familiar with our Miranda right to remain silent. Everyone knows that when the
police arrest you for Domestic Violence, drug sales,
or any other crime, they will read you your Miranda rights. In fact, my clients
are often perplexed when they are arrested and the officer does NOT read them
their Miranda rights. “They didn’t even read me my rights” my client will
exclaim, hoping that this police failure to do what they are supposed to do
will help get them out of trouble. However, any Orange County criminal defense lawyer
will tell you that the police don’t always have to read an arrestee their
rights.

Once an arrestee is taken into custody for Criminal Threats,
hit and run, or any other crime, the police must advise them of their Miranda
rights before the police question them. But if the police officer doesn’t ask
any questions, then the officer is under no obligation to read the defendant their
rights. So, for example, if a police officer arrests a person for auto theft
and doesn’t read the suspect their rights, the officer should not ask any
questions. However, if the arrested person makes statements to the officer
without the officer’s prompting, these statements can and will be used against
the defendant in court. Since the officer didn’t ask questions, he or she is
under no obligation to tell the defendant of their right to remain silent or
their right to the services of an Orange
County criminal defense attorney.

In fact, some officers intentionally employ this tactic of
not reading Miranda rights to a burglary or domestic battery suspect and
letting that suspect do all the talking on the way to jail. The officer thus
uses a person’s natural tendency to talk their way out of a bad situation to
their detriment. Thus, a person who has been arrested for assault and battery
or any other offense should resist the urge to talk and simply remain silent.
This post-arrest silence cannot be used against the arrestee later in court. An
arrestee should always consult with their criminal defense lawyer before making
any statement to the police.

When the police arrest a suspect for a crime such as
shoplifting or possession of a controlled substance  and then do read the suspect their Miranda
rights, it is usually best to exercise the right to remain silent. The US
Supreme Court held in Doyle v. Ohio (1976) 426 U.S. 610, that
remaining silent after you have been advised of this right cannot be used against
you in a court of law. For example, if you are arrested for drug possession and
the officer reads you your rights and you exercise your right to remain silent,
this silence cannot be used against you later. So if your case goes to trial
and your CRIMINAL DEFENSE ATTORNEY asserts the defense that the drugs were not
yours, the DA cannot use the fact that you didn’t tell the cop that the drugs weren’t
yours against you. The DA
cannot mention this silence or the case could be dismisses.

If, however, you are arrested for a crime such as grand
theft or assault with a deadly weapon and you are read your Miranda rights and
you DO waive your right to remain silent and to have your criminal defense
lawyer present, then the DA could use any silence or omissions in your
statement against you. For example, if you were arrested for transporting drugs
and you make a statement to the officer after Miranda, but you don’t mention
anything about someone forcing you to be a drug courier and then at trial your
defense attorney raises the defense of “necessity” arguing that you were forced
to transport drugs, the DA can then point to your silence about this during the
police interview. Thus, it’s usually best to remain silent.

If you’ve 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 LAWEYR IN ORANGE COUNTY. You
can also go to 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 Conviction: DMV Point Count Toward License

If you are
convicted of DUI in California, you face some rather severe penalties
including possible jail time, probation, stiff fines, an alcohol program, and a
suspension of your California driver’s license. The driver’s license suspension
will issue if your Orange County DUI defense Lawyer loses the  DMV hearing or if you plead guilty to a DUI in
court. The length of the suspension will depend on several factors including
whether or not you refused to take a blood test or breath test after the arrest
and whether you have any prior DUI convictions, in any state, within the past
ten years.

If your
driver’s license is suspended because of a DUI conviction or loss of the APS
hearing, you will still be eligible to get your license back on a restricted
basis after a certain length of time. For a first offense DUI you can typically
get a restricted license after serving just 30 days of the suspension. However,
there is little known vehicle code section that may prevent you from getting
your license back. Therefore, if you are facing DUI charges, you should check
with your DUI Attorney in Orange County to see if the negligent operation
statute will affect your driving privileges.

You see,
Vehicle Code Section 12810.5 says that if a driver has exceeded a certain point
count on their driving record, then the DMV can suspend their license because
they are a “negligent” operator. According to this statute, a person who has
been assessed four or more points in a 12-month period is presumed to be a
negligent operator and is subject to a separate driver’s license suspension.
Your DUI Lawyer will tell you that the way points are accumulated is through
traffic offenses. For example, a typical speeding ticket will count as one
point. However, more serious offenses such as DUI, wet reckless, or driving on a suspended license
counts as TWO points. Remember, that if you get four points within a year, your
license is toast.

So, if you
are convicted of DUI, that will cost you two points. If you have two separate speeding
tickets or other traffic tickets within the same year that you got the DUI, the
DMV can then suspend you for both the DUI and for the negligent operation. If,
for example, you are convicted of a first-offense DUI and you have two separate
traffic tickets within the same 12 month period, you could go in to get a
restricted license after 30 days only to find out that you also face a
negligent operation suspension.

If, however,
you consult with your DUI defense attorney early on, your attorney may
recognize that you are subject to a double suspension. Sometimes this can be
avoided by going back to court on the traffic ticket and getting a judge’s
permission to go to traffic school. This will avoid the point penalty for the
ticket and thus avoid the negligent operation suspension.

If you are
charged with a DUI call The Law Offices
of EJ Stopyro at (949) 559-5500 for a free and confidential consultation
with an experienced Orange County DUI Attorney. You can also go to www.ejesquire.com. Our offices are at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92675.

Resisting Obstructing or Delaying a Peace Officer: Your Lawyer Should Demur

Section 148(a) of the California Penal Code makes it a
misdemeanor to resist, obstruct or delay a peace officer in performance of
their legal duty. This charge has become a favorite of police officers who
encounter contentious citizens during a DUI stop, a Domestic Violence
investigation, a drug sales sting or a consensual encounter. Many police officers
will interpret any perceived disrespect from a citizen as a violation of Penal
Code Section 148(a) and these officers will arrest people for violating this
section even where the citizens are engaged in constitutionally protected
criticism or suspicion of the police.

Although these innocent citizens are often ultimately
acquitted in a court of law after their Orange County criminal defense lawyer gets involved, these
freedom-loving citizens still must endure a humiliating arrest, complete with
handcuffing and stuffing in the back of the police car, possible posting of
bail, and attorney fees for hiring an Orange County criminal defense attorneys. Moreover, an arrest for
resisting, delaying or obstructing a peace officer is often accompanied by
extra-tight handcuffs for the ride to jail. This has often caused permanent
nerve damage to the patriot who has dared not to wilt in the presence of an
almighty police officer.

Any time  a person is
arrested for PC 148(a) their criminal
attorney should appear at the arraignment with a demurrer in hand. A
demurrer is a legal brief that requests the judge to order the DA to disclose
exactly what act the defendant did that resisted, obstructed or delayed the
police officer as well as the exact LEGAL duty the officer was performing at
the time of the alleged offense. If it turns out that the actions of the
defendant was actually legal, such as choosing not to talk to the police or
criticizing the police, then the defendant’s criminal defense lawyer in Orange County can have the case dismissed.

If it turns out that the officer was not performing an
official duty, or perhaps was instead unlawfully detaining a citizen, then
again the defendant’s criminal
defense attorney in Orange County should be able to get the charge
dismissed. If the charge is dismissed, then the innocent person who was
arrested by the officer can bring a civil lawsuit against the officer and his
department. This may be a particularly important right if the defendant
suffered nerve damage from the handcuffing or was beaten or assaulted by the
police during the arrest. These injuries may require extensive medical
treatment. Moreover, a defendant in a civil suit may get punitive damages
awarded.

Often, when the police make a wrongful arrest for 148(a),
the DA will offer a probation-only deal to the defendant if they will just
plead guilty. The DA knows that if you plead guilty, you are making a legal
admission that you did resist, obstruct or delay a police officer in the
performance of a legal duty. This legal admission will preclude you from filing
a civil suit.

IF you face charges for 148(a), DUI, domestic violence,
theft, drug sales or drug possession, hit and run, assault and battery, or any
other crime, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free
and confidential consultation. You will speak to an experienced Orange County
criminal defense lawyer about your case. 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 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92627. 

DUI Court Program: Alternative To Mandatory Jail Time?

Although a
first-time DUI conviction is punishable by up to six months in the Orange
County jail, most non-collision first offense DUI’s are rarely punished by any
jail time at all. Of course there is still a driver’s license suspension issued
by the DMV, unless your DUI Attorney in Orange County was skilled enough to get the first
offense reduced to a wet reckless and to win at the DMV hearing.

A second or
third DUI within ten years, however, is a different story. A non- collision second
offense DUI in Orange County is typically punished by 45 to 90 days in the
Orange County jail. A third offense DUI draws around 300 days of jail time. And
unless your Orange County DUI defense lawyer negotiates a settlement containing
some combination of residential alcohol or drug therapy, pay and stay, and home
confinement, you can expect to serve that time in the Orange County jail.

Naturally,
people facing charges for a second or third offense DUI are eagerly looking for alternatives to serving
actual jail time. One alternative is the Orange County DUI Court program. DUI Lawyer in Orange County  find that this is an excellent alternative for
clients who are ready to deal with an alcohol or drug addiction and are eager
to work at sobriety. For those clients, the DUI court program is an excellent
alternative. However, it is a lot of work and requires a firm commitment to
getting and staying sober.

The DUI
court program takes at least a year to complete and includes group and
individual therapy, random tests for alcohol and drugs, self-help meetings (AA
meetings), checking in with a probation officer, court appearances. General information
about the DUI court program can be found at  http://www.occourts.org/general-info/dui-court/.
Your Orange County DUI Attorney must ask the judge for a referral to
the DUI court program. You will then be interviewed to determine if you are a
good candidate for the program. If you are, you will plead guilty to the DUI
offense and, instead of serving the jail time, you will work closely with the
probation department, county health, and the court.

Although
successful completion keeps you out of jail, you must still serve the mandatory
custody requirements of the offense. For example, a third-offense DUI carries a
mandatory jail sentence of 120 days. If you go into the DUI court program,
however, the judge will allow you to serve this minimum sentence through home
confinement. While on home confinement you will wear a GPS bracelet and when
you are not at work or doing DUI court activities, you must be at home. It
certainly is far better than being in the Orange County jail.

The DUI
court program contains a 30 day orientation phase where the self-help meetings,
court visits, alcohol and drug testing, and counseling is very intense. After
that there are three “phases” of the program where the intensity diminishes.
You can find a complete description of the DUI court program at   http://www.occourts.org/general-info/dui-court/.
Just click on “DUI COURT HANDBOOK”. If you think you are a good candidate for the
DUI court program, tell your DUI Attorney in Orange County to set up a DUI court evaluation.
The program is known for its effectiveness with people who truly want to get
sober.

If you face DUI charges call The Law Offices of
EJ Stopyro at (949) 559-5500 today. Or visit us online at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92675.                   

Incriminating Statements: They Can’t Always Be Used Against You

When
the police investigate a crime, be it burglary, theft, drug sales, domestic violence, or any other
offense, it is typical for them to get as much information from witness AND
from suspects. In fact, the majority or convictions for such crimes are based
on incriminating statements made by the defendant. When a person faces the
possibility of going to jail, they often will give up their right to remain
silent or have their Orange County criminal defense lawyer present
during questioning. This often leads to devastating consequences for them.

Police officers know that the best evidence they can get is
an incriminating statement from the person they are arresting for drugs, auto
theft, assault and battery or whatever crime the defendant is accused of
committing. Therefore, the police officer will often say whatever is necessary
to get a suspect to forget about their right to a Orange
County criminal defense attorney and make an incriminating
statement. However, there are limits to what the police officer can say in
order to induce a defendant to make an incriminating statement. If the officer
makes promises or threats that cause the arrestee to make incriminating
statements, then the defendant’s criminal defense lawyer should file a motion
asking the court to suppress the statements because they were the result of
coercion.

 

In the case of Lynumn v. Illinois (1963) 372 E.S.528, the police
arrested a women for marijuana sales. Three police officers stood around the
woman and pressured her to waiver her right to her criminal
defense lawyer and make a statement. At first, the woman didn’t give
up her right to a lawyer and didn’t make any statements. But then the police
officer told her that if she didn’t cooperate she could lose custody of her
child. This threat induced the woman to talk without her criminal lawyer
present and she made incriminating statements about selling marijuana and other
drug sales. In court, her criminal defense attorney moved to have the
statements about drug sales and marijuana sales suppressed because they were
coerced. The case made it all the way to the U.S. Supreme Court where the Court
found in favor of the defendant, holding that the incriminating statements
about drug and marijuana sales were inadmissible against the defendant because
they were coerced by the police officer.

 

Likewise, in the case of In re J. Clyde K., (1987)192
Cal.App.3d 710, three minors were caught with stolen property. They
faced charges for grand theft as well as receiving stolen property. The
arresting officer told the minors that they would be cited and released if they
gave up their right to a criminal defense attorney and “told the truth”
but would be taken into custody if they lied. One minor confessed without his
defense lawyer present and was cited and released. However, even though the
officer actually followed through with his promise to cite and release the
defendant, the court held the confession was still coerced and was therefore
inadmissible against the defendant at his criminal trial for theft and
receiving stolen property.

If you are facing charges for a crime in Orange County, call
The Law Offices of EJ Stopyro
today at (949) 559-5500 for a free
and confidential telephonic consultation. 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 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92675.

Discovery In A DUI Case: Getting The Information You Need

When someone
is arrested for DUI in Orange County, the arresting officer completes a
DUI investigation report, complete with all the observations the officer made
before the traffic stop, the driver’s performance on field sobriety tests, the
results of any voluntary breath test (called a preliminary alcohol screening
test or PAS for short), and the results of the post-arrest evidentiary breath
test (unless the driver chose a blood test, then the results wont be known for
ten days).

Once the DUI
arrest report is completed, it is sent to the Orange County District Attorney’s
office. The DA will review the report and file appropriate charges. The court
then sets an arraignment date, which is the first court appearance for the driver
or their Orange County DUI lawyer. At the arraignment, the DA gives a
copy of the police report to the drivers DUI defense lawyer. But in almost every case there is much more information
that us DUI defense attorneys want to get. Evidence such as audio
and video recordings of the driving, the field sobriety tests, and the entire
DUI investigation are very important. Also, written or recorded statements of
other witnesses are also critical.

According to
the law, your DUI Attorney is entitled to all this evidence,
and more. California Penal Code section 1054 deals with the obligation of the
DA to produce evidence important to the defense of any crime, including drunk
driving. Section 1054.1 states: “The
prosecuting attorney shall disclose to the defendant or his or her attorney all
of the following materials and information, if it is in the possession of the
prosecuting attorney or if the prosecution attorney knows it to be in the
possession of the investigating agencies:

(a)   The names and addresses of persons the
prosecutor intends to call as witnesses at trial.

(b)   Statements of all defendants.

(c)    All relevant real evidence seized or
obtained as part of the investigation of the offenses charged.

(d)   The existence of a felony conviction
of any material witness whose credibility is likely to be critical to the outcome
of the trial.

(e)   Any exculpatory evidence.

(f)     Relevant written or recorded
statements of witnesses whom the prosecutor intends to call at the trial,
including any reports or statements of experts made in conjunction with the
case, including the results or comparisons which the prosecutor intends to offer
in evidence at the trial.

This section
of the Penal Code obliges the DA to turn this evidence over to the defendants Orange County DUI Attorney. Once the defendant’s DUI defense lawyer submits an “informal
discovery request” asking for discovery in the case, the DA is obliged to turn
over this evidence within 15 days of the request. If the DA fails to turn it
over within that time, the defendant’s DUI attorney can file a formal Discovery
Motion with the court. After a hearing on the motion, the court will order the
DA to turn over the evidence or face consequences, including a possible
dismissal of the case.

In reality,
the DA almost never turns the evidence over within 15 days. This is not because
they are reluctant to comply, but because it takes more time to gather all the
evidence, which is usually in the hands of the police agency that made the
arrest in the first place. Typically, it takes about 30 to 45 days for the DA
to produce all the evidence in a DUI case.

If you are
facing charges for a DUI in Orange County, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced
Orange County DUI lawyer. 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 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92627.