Domestic Battery: Penal Code Section 243

In California a "battery" is "any willful or unlawful use of force upon the person of another." A "domestic battery" occurs when the victim is in a special relationship with the defendant. California's domestic battery law, Penal Code Section 243, makes a battery a "domestic battery" when the victim is the  spouse, ex-spouse, cohabitant, parent of the defendant's child, fiancé, fiancée, or in a dating relationship with the defendant. Any domestic violence lawyer in Orange County will tell you that domestic battery conviction draws harsher punishment than an ordinary battery.



While ordinary battery, (California Penal Code Section 242), is punishable by up to six months in the Orange County jail, domestic battery is punishable by up to a year behind bars. Moreover, anyone convicted of domestic battery MUST successfully complete a 52-week batterer's treatment program. This is a mandatory term of probation under California's domestic battery sentencing scheme. Also, a defendant convicted of domestic battery will usually be subject to a "domestic violence protective order" for the length of probation. Probation will last from three to five years. During this time, the defendant's contact with the victim will be limited or prohibited all together by the protective order.



If a defendant has a prior conviction for domestic battery or other crime of domestic violence, such as "corporal injury" or "child endangerment", then a new conviction for domestic battery will require mandatory jail time. Also, if the victim suffered "serious bodily injury", then the domestic battery can be charged as either a misdemeanor or as a felony (called a "wobbler"). A felony conviction for domestic battery can be punished by up to four years in the California State Prison. Aside from the possibility of jail or prison time, a domestic battery conviction on a person's criminal record may have long-term consequences on employment and reputation.



Domestic violence lawyers are familiar with proven and successful defenses to the charge of domestic battery. Lack of a "special relationship", self-defense, defense of property, and false accusation are all defenses used by domestic violence attorneys to successfully defend a charge of domestic battery. If you would like to speak to an experienced Orange County domestic violence attorney call The Law Offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation with an experienced attorney.

Drug DUI: A DUI Lawyer's Perspective

California Vehicle Code Section 23152 makes it a crime to drive under the influence of alcohol (alcohol DUI) or drugs (drug DUI). While most DUI arrests are for alcohol DUIs, drug DUIs are a close second. Although a drug DUI may have more of a negative social stigma than an alcohol DUI there are often some legal advantages to defending a drug DUI charge. These advantages can be used by a skilled DUI lawyer to get a better deal for client--maybe even a reduced charge such as a "wet reckless".



You see, under Section 236152, there are two ways for the Orange County District Attorney to convict someone of an alcohol DUI. Either show that their blood-alcohol level was a 0.08% at the time of driving or show that they were too impaired to drive safely. Thus, in the case of an alcohol DUI, if there is no bad driving or signs of driver impairment the DA can still convict with a blood-alcohol level of 0.08% or higher. But in order to convict someone of a drug DUI the District Attorney must prove that the driver was too impaired to drive safely.



There simply is no "legal limit" for drugs--whether legal or illegal.

So in a drug DUI case, the prosecutor needs strong evidence of actual impairment. This usually consists of bad driving and/or poor performance on the field sobriety tests ("FSTs"). But even if there is evidence of bad driving or poor performance on FSTs, a skilled DUI attorney can often easily explain this evidence with reasons that have nothing to do with impairment. For example, a DUI defense lawyer can introduce phone records showing an incoming call or text message to the driver, thus distracting that driver and causing a weave or other instance of bad driving. Also, in a drug DUI trial, a DUI attorney can show that the defendant's "poor performance" on an FST may be due to an injury or other medical condition.



The point is that in a drug DUI case the "evidence" of impairment is often subjective and open to more than one interpretation. And without the "black and white line" of a measured level of impairing substance, the DA often has a much tougher case to prove. An experienced DUI defense lawyer can often exploit this and either get a "not guilty" verdict at a drug DUI trial or get a great offer from the DA to settle the case.

second offense DUI: Punishment in the O.C.

A second offense DUI in California carries mandatory jail time. California Vehicle Code 23152 requires at least 96 hours of confinement. But your actual sentence for a second offense DUI will vary greatly depending on what county you are in. Other factors that influence sentencing include; whether there was an accident, any injury, the driver's blood-alcohol level, excessive speed, a child in the car, and cooperation with the police.



A "standard second" is a term used by Orange County DUI lawyers. It refers to a second offense DUI where there is no accident, injuries or other aggravating factor. And in the case of a standard second sentence, there is a great deal of difference depending on the county. While some counties only require the minimum 96 hours of custody, other counties impose penalties that are close to the maximum punishment of one year in the county jail. Any Orange county DUI attorney will also tell you that a second offense DUI also carries other mandatory penalties as well. The defendant must pay a minimum fine and fees of around $2,000.00. Also, the defendant must complete an 18-month alcohol program. A second offense DUI defendant also must be placed on informal probation for five years. These minimum sentencing conditions must be imposed for any second-offense DUI, regardless of what county it occurred in.



In Orange County, a standard second offense DUI usually draws an offer of 90 days in the Orange County jail. If the defendant was still on probation for the first offense DUI, then the offer usually goes up to 120 days. If there was an accident the second offense DUI offer typically goes up to 180 days. The alternative to accepting a standard second offense DUI offer is to go to trial. Of course, if your DUI defense attorney can find a weakness in the DA's case, they may be able to get the charge reduced to a wet reckless. This charge requires no mandatory jail time.



If you would like to speak to an experienced DUI defense attorney call The Law Offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation.

The DMV Hearing: California DUI Arrest

When someone is arrested for DUI in California, the law requires the arresting officer to confiscate the driver's California driver's license and give them a temporary paper license. This triggers a 10-day window for the arrestee, or the arrestee's DUI lawyer, to call the DMV and request a DMV hearing. If no DMV hearing is requested by the driver or their DUI attorney, then the DMV will automatically impose the appropriate driver's license suspension. If a DMV hearing is requested, then the DMV will mail a new paper temporary license to the driver, allowing them to continue driving until and unless they lose the DMV hearing.



The DMV hearing is usually scheduled for around 45 days after the request for the DMV hearing is made. Thus, a driver can at least buy some more time to driver. Moreover, it is typical for the driver's DUI defense lawyer to "continue" the hearing, or set it another month or two later. Your DUI attorney will need this time to subpoena crucial evidence in the case, such as the calibration and maintenance logs for any breath-testing device as well as the audio/video in the case. So the DMV hearing usually isn't completed for about three months from the date of the request. Again, even if a driver is likely to lose the hearing they can have some flexibility for when the suspension begins.

At the DMV hearing, the DMV must prove its case against the driver by a preponderance of the evidence. Typically, the DMV must prove that the driver was lawfully stopped, that there was sufficient probable cause to arrest the driver, and that the driver had a blood-alcohol level of 0.08% at the time of driving. Since this is a civil matter, (the criminal case is handled in court), the rules of evidence are lax. In fact, the DMV hearing can even be conducted over the telephone.

Although the low evidentiary threshold and the lax rules of evidence make DMV hearings very difficult to win, they can be won. California law requires that breath and blood tests be conducted in a very specific manner in order to avoid mistakes. If the officer makes a mistake, the law requires the test result to be thrown out. For example, the officer must continuously observe the driver for 15 minutes before any breath test to make sure the driver doesn't burp. A single burp can transport minute amounts of alcohol from the stomach to the mouth. This will give a false reading. Also, the cop is supposed to take two breath samples, at least two minutes apart, to confirm the result. If this is not done correctly, the results must be suppressed.



Also, at the DMV hearing, the DMV must prove that there was legal grounds for the stop in the first place. If there was not sufficient "reasonable suspicion" for the initial detention, then all evidence that flowed from the illegal stop must be suppressed. A "rising defense" can also be raised at the DMV. A breath or blood test given long after the time of driving does NOT tell us what the driver's blood-alcohol was at the time of driving. Blood alcohol levels continuously change in a person's body. So a driver may be at a 0.06% at the time of driving but be much higher just 30 minutes later.

If you, or your DUI defense attorney, don't request a DMV hearing within ten days of the arrest, then you give up your right to challenge any suspension. Even if you or your lawyer later learn that the test was not done correctly, once you give up your right to a DMV hearing you can no longer challenge the suspension. Even one  based on faulty evidence.



If you would like more information about the DMV hearing call The Law Offices of EJ Stopyro at (949) 559-5500 today. We offer a free and confidential telephonic consultation with an experienced DUI attorney.

Orange County Criminal Attorney: P.C. 148(a)

It is a crime to "wilfully resist, obstruct or delay" a police officer in the performance of their "legal duty". Penal Code Section 148(a) makes it a misdemeanor to do so. Conviction of this offense is punishable by up to a year in the Orange County jail. Orange County criminal attorneys call Penal Code Section 148(a) "contempt of cop" because of it widespread misuse by law enforcement. It has become routine for police officers to arrest citizens for any disrespect shown or for any hesitation to immediately comply with their commands. The broad, vague language of the statute make it easy for an officer to justify an arrest. After all, what does it mean to resist, delay or obstruct? If I invoke my legal right not to talk to the officer will I be arrested for "obstructing" or "delaying" their investigation? The ambiguous wording of the law and cop-friendly judges have provided fertile ground for rampant police abuse.



Of course, any Orange County criminal attorney will tell you that getting arrested is a far cry from being convicted. You see, we all have the right to question a police officer when they are on our property or telling us to do something. Nor is it against the law to respond slowly to a cop's commands. It is well settled that the First Amendment protects our right to question authority and to voice our opinion. Our founding fathers did not want a docile, compliant population. Rather, they warned against it. Our courts have repeatedly held that Penal Code Section 148(a) cannot be used to silence criticism of police officers. And it certainly cant be used to prevent citizens from filming or recording the police.



However, just because you cant be CONVICTED of 148(a) for exercising your rights doesn't mean the cop wont ARREST you for it anyway. In fact, Orange County criminal attorneys see this happen all the time. The officer knows that they can inconvenience you with the trauma of an arrest at no cost to them. Not to mention saddling you with the cost of an Orange County criminal attorney to get the charges dismissed. And as for the cop, well there is no repercussion for making the illegal arrest in the first place. Although someone illegally arrested could sue the cop in civil court, the high expense of a civil suit and the low dollar damages deter most police victims from filing. Of course, a victim of a false arrest should absolutely file a complaint with the officer's department. Your Orange County criminal attorney will be more than happy to help. These complaints of misconduct stay in the cop's file for five years. They can be very useful for the next victim's Orange County criminal attorney.



If you would like to speak directly to an experienced Orange County criminal attorney call The Law Offices of EJ Stopyro at (949) 59-5500. We offer a free and confidential telephonic consultation.