First Offense DUI: Punishment And Penalties

A non-injury first offense DUI in Orange County is punishable by up to six months in the Orange County jail. (Vehicle Code Section 23152). There are also mandatory fines and fees of up to $4,500.00. A judge can impose some, or none of the six months of possible jail time for a first offense DUI. However, any Orange County DUI lawyer will tell you that in most cases, Orange County judges do not impose any jail time at all for a non-injury first offense DUI. However, if the first offense DUI involved an accident, a child age 14 or younger in the car, excessive speed and reckless driving, an excessive blood-alcohol level, a refusal to take a blood or breath test, an altercation with police, or other criminal charges, then the law either requires or encourages jail time for a first offense DUI. If the first offense DUI resulted in injury to anyone other than the defendant, (DUI with injury), it can be charged as a felony, punishable by up to three years in the state prison.



Although most first offense DUI defendants receive little or no jail time, by law, these defendants MUST be placed on a minimum of three years of "informal" probation. This means that the balance of the jail time is "hanging over their head" and can be imposed if they break any term of their first offense DUI probation. The terms of first offense DUI probation must include; break no law (felony or misdemeanor), do not drive with ANY ALCOHOL in your system, maintain and carry driver's license and insurance, complete a state-approved alcohol program (3, 6 and 9 month program depending on your blood-alcohol level), pay fines/fees of at least $2,100.00, and submit to a breath test any time you are driving. These are the mandatory terms for first offense DUI probation. The judge can impose additional terms such as attending AA meetings, submitting to search and seizure by any police officer, and not leaving California without permission.



Aside from the punishment from the court, a first offense DUI defendant also faces two driver's license suspensions from the DMV. If the defendant, or their Orange County DUI lawyer, does not request a DMV hearing within ten days of the first offense DUI arrest, then the DMV will automatically impose a four-month DMV suspension. This can be reduced to a 30-day suspension followed by up to ten months of "restriction". The second suspension is imposed by the DMV if the defendant is convicted of first offense DUI in court. This is a six-month suspension but can also be reduced to a 30-day suspension followed by restriction. A skilled DUI attorney can time the suspensions so that they run concurrently, giving the defendant credit for both suspensions at the same time.



If you face charges for a first offense DUI and would like to talk to a skilled Orange County DUI attorney, call The Law Offices of EJ Stopyro at (949) 559-5500 today. We offer a free and confidential telephonic consultation.

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.

Choosing An Orange County Domestic Violence Attorney

Choosing the right Orange County domestic violence attorney may seem like a difficult task. But when you break it down, you really want to ask three important questions: 1) Does this lawyer practice in the Orange County courts? 2) Is this lawyer well trained? and 3) Does this Orange County domestic violence attorney have enough experience to handle my case?



1. Does This Lawyer Practice In The Orange County courts ?



Every judge in every courtroom has their own way of doing things. For example, some judges will allow a case to be resolved with home confinement and others will not. And, just like all of us, judges have their own "pet peeves". That is why it is extremely important to find an Orange County domestic violence attorney that practices regularly in front of the judge in YOUR case. Knowing the tendencies and personalities of the judges and DAs who are prosecuting you can make a huge difference. So when searching for an Orange County domestic violence attorney to represent you, ask them how often they appear before the judge in YOUR case.



2. Is This Orange County Domestic Violence Attorney Well Trained?



Lawyers receive the bulk of their training in law school. An inferior law student becomes an inferior lawyer. Don't be afraid to ask a prospective Orange County domestic violence attorney about their legal training. Ask them what their class rank was. Ask them about any awards for academic achievement. Ask them their GPA. This is basic information that you absolutely should ask for. Your freedom may turn on your Orange County criminal defense attorney's training. Don't wait until a malpractice lawsuit to find out that the lawyer you counted on to protect you barely made it through law school. The burden is on you to ask these questions up front. And any lawyer that is uncomfortable answering these questions is NOT the lawyer for you.



3. Is This Orange County Domestic Violence Attorney Experienced?



Ask any prospective Orange County criminal defense attorney how many years they have been practicing domestic violence defense. Many lawyers have been practicing law for years but have never handled a domestic violence case. Ask specifically how many domestic violence cases they have personally handled in their career. And, of course, find out how many of those cases were in the Orange County courts.



Domestic violence defense can be a tricky area--there are special enhancements that may apply as well as specific terms of probation that must be considered carefully when crafting a defense strategy or structuring a plea deal. A lawyer unaware of these requirements may lead their client right into a minefield.



If you would like to speak with an experienced Orange County domestic violence attorney about your case, call The Law Offices of EJ Stopyro at (949) 559-5500 today. We offer a free and confidential telephonic consultation.

Orange County DUI Attorney: O.R. Release

Any Orange County DUI Attorney will tell you that when a driver is arrested for DUI where nobody was injured, the law allows for that driver to be released from custody on their "own recognizance" ("O.R."). That is, the driver can be released from jail while their case is being litigated without posting bail. Penal Code section 853.6 specifically provides for an O.R. release in the case of a DUI arrest. However, an Orange County DUI attorney will also tell you that just because the law says a driver can be given an O.R. release doesn't mean that they will be. In fact, in Orange County, a driver with a prior DUI is almost never released on their own recognizance.



The first opportunity for an O.R. release happens at the jail where the arrestee's Orange County DUI attorney cannot intervene. The jail officer will review the arrestee's record to see if the arrestee has any prior DUIs within the past ten years. If not, the arrestee is usually released on their own recognizance. If the arrestee has a prior DUI, bail will usually be required. The amount of bail will depend on how many prior DUIs the arrestee has. Usually, if the driver has only one prior DUI within the past ten years, bail will be set at ten thousand dollars ($10,000.00). This must be posted until the case has been litigated by the driver's Orange County DUI attorney. Once the case is over, the bail is returned to whoever posted it. The arrestee can either deposit this amount with the court or hire a bail bondsman to post it. A bail bondsman typically charges ten percent of the bail amount, which the arrestee does NOT get back.



Bail is next reviewed at the first court appearance, called the arraignment. At the arraignment, the court checks to see if bail has been posted and whether it is sufficient. If the defendant was released O.R., their Orange County DUI attorney will try to persuade the judge to let the defendant remain out of custody on an O.R. release. The judge has broad discretion and can increase bail, reduce bail, or allow it to remain unchanged. If the judge feels that an O.R. release is insufficient to protect public safety or ensure that defendant will show up in court, the judge will impose bail. Thus, it is up to the defendant's Orange County DUI attorney to persuade the judge that the defendant will not be a danger to the public and will not be a "flight risk".



Usually, if the judge is leaning toward imposing bail, the defendant's Orange County DUI attorney will suggest that the judge allow the O.R. release to continue but that the judge impose "bail conditions" that will ensure public safety. These "conditions" include attending AA meetings, not driving with any alcohol in their system, and even abstaining from alcohol. In In Re York (1995) 9 Cal.4th 1133, the California Supreme Court ruled that when it comes to an O.R. release, a judge has broad discretion to impose reasonable conditions related to the furtherance of public safety. However, there are limits to the bail conditions a judge can set and your Orange Count DUI attorney should challenge unfair or overly burdensome conditions. The federal court held that theses conditions must be reasonably related to public safety and making sure the defendant shows up. (U.S. v. Scott (2005) 424 F.3d 888.) In that case, the court struck down a DUI release condition that the defendant be subject to search at any time of the day or night. The court held that such a release condition does not protect public safety in a DUI case.



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

DUI Blood Test: How A Sample Is Tested

When someone is arrested for a DUI in California they are required to submit to either a DUI blood test or a breath test. A driver does NOT have the right to refuse to take a DUI blood test or breath test or to have their DUI lawyer present before submitting. (CVC 23612) A refusal to take a post-arrest test is a separate crime. A breath test will provide the officer with instant results--which the officer usually does not disclose to the driver. The results of a DUI blood test, on the other hand, will not be available for at least ten days. The reason for the delay is that the blood sample must be transported to the Orange County crime lab. The sample will then  be refrigerated until it is tested by a forensic analyst. The analyst will use a gas chromatograph in order to test the DUI blood test sample.



Testing the DUI blood test sample is accomplished by placing a small amount of the blood in a test tube. The tube is plugged with a stopper but there is a small amount of airspace between the blood and the stopper. The substances in the blood sample, including alcohol and drugs, will off-gas into the airspace above the sample. This air is then sucked out of the test tube with a needle and injected into the gas chromatograph. This air then circulates around a large metal tube within the gas chromatograph. In this tube, the substances, drugs and alcohol, gather together. Then, the machine burns each collection of substances. This length and intensity of the burning of each collection is recorded and printed out. This shows what substances were in the DUI blood test and the amount of each substance.



These results of the DUI blood test are recorded on a forensic report that is forwarded to the District Attorney and the DMV. The DA will use these results to determine what to charge the driver with, (i.e. DUI, DUI drugs). The DMV will use these results to issue a license suspension after the driver's DMV hearing. Your DUI attorney will also receive this data and will typically have an expert forensic scientist review the gas chromatograph data to see that the testing was properly accomplished.

Because a DUI blood test shows the level of drugs in one's system, as well as the level of alcohol, a driver should never opt for a blood test if they have any impairment-producing drugs, whether prescription or otherwise, in their system. If you would like to speak with an experienced Orange County DUI defense attorney call The Law Offices of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation.

Drug Defense Lawyer: Illegal Pat-Down Search

There is a widespread misperception among the public that the police are entitled to pat down anyone they come across. Watch any episode of "Cops" and you will see this pat-down search routinely performed on just about everyone the police encounter. Often, this pat-down search leads to an arrest for drug possession or possession with intent to sell. Any drug defense lawyer will tell you that the Constitution prohibits the police from putting their hands on you and patting you down unless they have specific legal justification. If an illegal pat down search is challenged in court by the defendant's drug defense lawyer, the evidence will be suppressed. Moreover, the police officer will be subject to a civil lawsuit for violating the defendant's Constitutional right to be free from an unreasonable search.



In the landmark case of Terry v. Ohio, a case well known by Orange County drug defense lawyers, the United States Supreme Court held that the police can only perform a warrantless pat down search when the police have:

1. reasonable suspicion;
2. based on articulable facts;
3. that the defendant was engaged in criminal activity; and
4. that the defendant was armed and dangerous.

When a cop performs a pat down search without all four elements (and without a warrant or exception thereto) then it is illegal. But if the pat down search isn't challenged by a drug defense lawyer in court, the illegality will go unnoticed. Unfortunately, many pat down searches are never challenged, especially when a defendant doesn't consult with a drug defense lawyer and just pleads guilty.

So if evidence can be suppressed by the defendant's drug defense lawyer and the cop can be sued, why do the cops continue to regularly perform illegal pat down searches? Because the cops don't really care if the evidence ends up getting suppressed. It doesn't affect the cop one bit. And as for a civil lawsuit, that costs money. Even those defendants with the means to sue a cop usually don't want to expend the energy and time for a small damage award. They are just happy their drug defense lawyer got them out of trouble. Thus, there really is no consequence for the cop. That's why the illegal pat down search continue to be standard practice in police encounters.



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

DUI Arrest: Can I Avoid A DUI Checkpoint

DUI arrests are the primary purpose of DUI checkpoints. If you are stopped at a DUI checkpoint after you’ve consumed alcohol it is likely that the officer will lean into your car, take a good whiff and smell the booze. The cop will then question you extensively about what and when you drank—questions you should not ask without your Orange County DUI lawyer present. Next the officer will ask you to exit the vehicle and perform some “simple” field sobriety tests before they “let you go on your way”. The officer is looking to gather evidence to support a DUI arrest. Then, the cop will ask you to take one last test—a voluntary breath test. But remember, even if you are under the legal limit you are still subject to a DUI arrest and prosecution if the cop feels that you are too impaired to drive. The Orange County DA’s office prosecutes at a blood-alcohol level of 0.06% if they have any evidence of “impairment”, such as a cop’s subjective evaluation of your performance on field sobriety tests. This is allowed pursuant to Vehicle Code Section 23152(a).



Since being anywhere near the legal limit can result in a DUI arrest and conviction, it is best to avoid the DUI checkpoint all together. You can, of course, check the internet for DUI checkpoint locations and plan your drive accordingly. But if you should happen upon an unexpected DUI checkpoint remember this: you do not have to go through it. Orange County DUI attorneys have challenged DUI checkpoint law and police are now required to ensure the DUI checkpoints are well-lit, well-marked, and allow approaching drivers the opportunity to avoid the checkpoint if they choose. That’s right, avoiding a DUI checkpoint, and a possible DUI arrest, is your right. But one work of caution—the police will watch you turn away from the checkpoint and they will look for any legal reason to pull you over. Any law violation will suffice—failing to stop completely at a stop sign, not signaling, or even a defective license plate lamp. So be on your best behavior when you exercise your right to avoid a DUI checkpoint and a DUI arrest.



For more information about a DUI arrest call The Law Offices of EJ Stopyro at (949) 559-5500. We offer a free telephonic consultation. You can also reach us on our contact page. Our main office is at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

DUI Checkpoint: Exercise Your Rights

DUI checkpoints have become a common DUI enforcement technique with law enforcement agencies in southern California. Even drivers with no drugs or alcohol in their systems become nervous when approaching these menacing traps. Needless to say those drivers with some alcohol or drugs, even prescription drugs, in their system have good reason to be nervous. If a cop thinks you might be impaired there is a good chance you will be arrested for DUI. Knowing your rights at a DUI  checkpoint can help you navigate these intimidating obstacles with the least amount of tension.



First of all, you have the right to avoid DUI  checkpoints. The law requires that DUI checkpoints be

clearly marked with signs in advance. Moreover, the law requires that DUI checkpoints be set up in a way that allows drivers to avoid them–there must be a way to turn in order to opt out of going through them. Any Orange County DUI lawyer will tell you that the police do, generally, follow this law and do set up the DUI checkpoints to allow drivers to turn and avoid them. However, the police also put an officer near the turns and watch to see which drivers exercise their legal right to avoid the DUI checkpoint. The officer will then look for any legal justification to pull those drivers over. Perhaps a license plate lamp is out, or the registration is expired, or maybe a taillight is cracked. So if you choose to turn away from a DUI checkpoint, which is your legal right, your car’s equipment better be up to code. And this is certainly the time to use your best and safest driving skills.



If you choose to go through the DUI checkpoint you also have the right to refuse to answer any questions. While you must provide your driver’s license, registration, and proof-of-insurance at a DUI checkpoint you do not have to say anything. Virtually all Orange County DUI attorneys recommend that you exercise your right to remain silent at a DUI checkpoint. However, remember to exercise this right in a polite manner. Simply tell the officer in a friendly voice that you would rather not answer any questions. Then ask if you are free to go. The officer cannot detain you without reasonable suspicion and the exercise of your right to remain silent can not be used against you.



Finally, please remember that field sobriety tests are completely voluntary. You cannot be compelled to perform them at a DUI checkpoint or anywhere else and DUI defense lawyers agree that you should never do them. Again, it is advisable to exercise this right in a polite, non-confrontational manner. Just tell the cop, in a pleasant voice, that you would rather not do them. Again, ask the officer if you are free to leave. The officer’s last effort will probably be to ask you to blow into a small, hand-held breath test machine before you are “on your way”. Again, as long as you are not under arrest, this test is completely voluntary. And again, DUI attorneys agree that you should never take this test. Remember, you have nothing to gain by answering questions, taking field sobriety tests or agreeing to a voluntary breath test. Don’t try to prove your innocence at a DUI checkpoint. Rather, don’t help the District Attorney convict you by providing all the evidence they need.

For a free and confidential telephonic consultation with an experienced Orange County DUI lawyer call The Law Offices of EJ Stopyro at (949) 559-5500.

Domestic Violence Attorney: Marital Privilege

There are several "privileges" in the evidence code which entitle the holder to prevent another person from testifying against them. For instance, the attorney-client privilege forbids an attorney from disclosing what their client has told them, even if it is an admission to committing a crime. The therapist-patient privilege likewise requires a therapist to keep their client's secrets. Any domestic violence attorney worth their salt is quite familiar with the marital privilege. This privilege has ancient roots in the English common law and it forbids one spouse from testifying against another. So, for example, at common law, if one spouse were charged with domestic violence against the other, the defendant spouse, or their domestic violence attorney, could raise the marital privilege to keep the other spouse from testifying in court.



The marital privilege exists today in California and is found in Section 971 of the California Evidence Code. The section reads: "Except as otherwise provided by statute, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by the adverse party to that proceeding without the prior express consent of the spouse having the privilege under this section unless the party calling the spouse does so in good faith without knowledge of the marital relationship." The plain language of this statute means that, in a domestic violence trial, a defendant's domestic violence attorney could prevent the other spouse from testifying by raising the marital privilege on the defendant's behalf.



However, the California legislature, much to the chagrin of domestic violence attorneys and their clients, added another law to limit the marital privilege. Evidence Code Section 972 prohibits the marital privilege from being raised in any court proceeding where one spouse is accused of perpetrating a crime against the other spouse. Therefore, a domestic violence attorney can no longer raise the marital privilege at a domestic violence trial.



Now, if the victim spouse no longer wishes to testify against their defendant spouse, the District Attorney will simply serve the victim with a subpoena. This is a court order compelling the victim to testify. If the victim still refuses to testify they can be jailed for contempt. However, serving the victim with a subpoena can be tricky. A subpoena is only valid if it is personally served upon the victim. If the DA simply mails a subpoena to the victim, which is their practice, it is not valid unless the victim specifically acknowledges receiving it. If the victim cannot be located the defendant's domestic violence attorney can move for a dismissal of the case.



If you would like to speak with 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.

DUI Attorney: Can Cops Wait Outside The Bar? - EJ Stopyro

Detecting and arresting drunk drivers has become a priority for many California law enforcement agencies. Consequently, DUI attorneys have seen the police develop special DUI detection tactics to increase DUI arrests. These include DUI checkpoints as well as DUI saturation patrols (extra patrols dedicated to DUI enforcement). A more controversial tactic consists of police officers waiting outside of establishments that serve alcohol and targeting motorists when they leave–looking for any reason to stop them and conduct a DUI investigation.

Although this practice may seem inherently unfair, we DUI attorneys are well aware that the United States Supreme Court has upheld the legality of these “pretextual stops” as long as the officer finds some legal justification to pull the driver over. The Supreme Court ruled that the subjective intention of the officer (looking for a DUI driver) doesn’t matter as long as the stop is for a valid law violation. So, for example, a police officer can wait outside a bar and watch the vehicles that leave. If the officer witnesses any violation, such as an inoperable license plate lamp, the officer may lawfully stop the vehicle. If, during the stop, the officer detects an odor of alcohol or any other signs of alcohol intoxication, such as bloodshot eyes or slurred speech, the cop can conduct a DUI investigation.

These “DUI stakeouts” have become increasingly popular with law enforcement. However, any Orange County DUI attorney knows that jurors tend to disfavor this particular enforcement practice. Moreover, those drivers arrested as a result of a DUI stakeout are usually in a good position to fight the DUI charge in court with a “rising defense”. Because the driver is usually arrested immediately after leaving the bar their DUI attorney can easily establish that the time of finishing the last drink was very close to the time of driving–a critical element in a rising defense.
For more information about DUI defenses that work, 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.

DUI Arrest: Cop Didn’t Read Me My Rights

I’ve been an Orange County DUI attorney for many years now. And since I offer a free telephonic consultation I’ve talked to thousands of people after they were arrested for DUI. One of the main concerns I hear is that the cop never read them their Miranda rights; their right to remain silent, to have a lawyer present, and to have a free lawyer appointed if they cannot afford one.

Virtually every police drama we see on television reinforces our understanding that when the police arrest someone, even for DUI, they MUST inform them of their Miranda rights, including their right to a DUI lawyer. This legal principle is well-entrenched in public consciousness. But when must the police read someone their rights? And what is the consequence if they don’t? These are the questions I hope to answer here.



A DUI investigation typically starts after an officer stops a driver and becomes suspicious that the driver has been drinking or taking drugs. The officer then asks the driver a long series of potentially incriminating questions like “how much have you had to drink?” and “do you feel the effects of alcohol or drugs?”. Moreover, the cop asks these questions without ever informing the driver of their right to consult with a DUI defense lawyer before answering. That’s because the U.S. Supreme Court has held that the cops don’t need to advise a suspect of their Miranda rights until they are “in custody”. Custody occurs when the police physically restrain someone–such as by putting handcuffs on them or placing them in the back of a locked police car.



So, once the police put you in cuffs they MUST read you your rights before they can interrogate you. But, as any DUI defense attorney will tell you, in most DUI cases the police have already asked all their questions before they arrest  the driver and take them into custody. Since they usually have no more questions to ask, there is no need to read the driver their rights. But if the cops do ask more questions once custody occurs, the answers can be suppressed by a skilled Orange County DUI lawyer. Any incriminating statements resulting from interrogation after the driver is taken into custody are subject to suppression if the officer did not advise the driver of their Miranda rights.



If you have been arrested for 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. Our main office is located at 32072 Camino Capistrano in San Juan Capistrano but we have meeting offices throughout Orange County.

DUI Arrest And The Mandatory Alcohol Program

Anyone who
is convicted in a California court of a DUI or a “wet reckless” must
successfully complete a state-approved alcohol program. Both the court and the
DMV require completion of a program duly licensed under §11836 of the
California Health and Safety Code.

LENGTH OF
ALCOHOL PROGRAM

The length
of the required program depends on several factors including: whether you have
any prior DUI or wet reckless convictions within ten years of the date of the
current offense; whether you refused to take a blood or breath test after the arrest;
how high your blood-alcohol was; and whether you were convicted of DUI or wet
reckless.

For a wet
reckless, you will only be required to take a six-week program—the shortest
available. This class meets once a week for about two hours for six weeks. As
with all the alcohol programs you will NOT be allowed to attend more than one
class per week. Also, it is a violation of class rules, and thus of your
probation, to attend a class while under the influence of alcohol or drugs. If
you smell of any alcohol expect to be ejected from the class and sent back to
court.

A
first-offense DUI will result in either a three, six or nine month program,
depending on your blood-alcohol level. In Orange County a blood-alcohol level
of 0.14% or lower will require only a three-month program. A blood-alcohol
level between 0.15% and 0.19% will draw a six-month program and a BAC of 0.20%
or greater gets the nine-month program. Also, first-offense DUI with a
“refusal” must attend a nine-month class (on top of the mandatory one-year
driver’s license suspension).

If you have
one or more prior DUI convictions within ten years of the date of arrest and
you are convicted of DUI then you will be required to finish the 18-month
alcohol program. This program meets twice a week.

COST

You are
responsible for the costs of the alcohol program. These programs are private
companies who are in business to make a profit. The three-month programs cost
around $450.00, the six-month runs around $700.00 and the nine-month runs about
a thousand dollars. The 18-month program goes for around two thousand dollars
($2,000.00).

WHEN TO
ENROLL

Timing of
enrollment in the program can be tricky and should definitely a priority for
your DUI lawyer. You see, not only does the DMV suspend your driving privileges
when you are convicted of a DUI, they also issue a separate driver’s license
suspension if you lost the DMV hearing (“APS hearing”), which you most likely
did, or if you simply did not request an “APS” hearing. In most Orange County
cases the “DMV suspension” usually precedes the “court suspension”.

In any case,
you will want to enroll in the program before you become eligible for a
restricted driver’s license (if you are eligible for a restricted license). A
restricted license allows you to drive to and from the alcohol program, to and
from work, and any “work related” driving—driving within the course and scope
of work. Enrollment in an alcohol program is a requirement in order to get a
restricted license. Your DUI attorney should tell you when to enroll in the
program and provide you with the local program options well before enrollment
time.

PROOF-OF-ENROLLMENT/PROOF-OF-COMPLETION

At the time
of sentencing the court will order you, often through your DUI defense lawyer,
to enroll in the alcohol program within three weeks and to provide
proof-of-enrollment to the court. In Orange County the alcohol programs will
typically provide proof-of-enrollment to the court for you. The court will also
order you to provide proof-of-completion by a specific date.

Timely
enrolling in and successful completion of the alcohol program are terms of your
DUI probation. This means that if you don’t enroll on time or if you are kicked
out of the class for tardiness, disruptive behavior, sleeping, or being under
the influence of drugs or alcohol, you will be in violation of your probation.
When you violate your probation a judge must decide whether to impose some or
all of the jail time that is hanging over your head—usually six months for a
first-offense and a year of jail time for DUI with one or two priors.

If you would
like to speak with an experienced Orange County DUI 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 us page. Our main offices is
at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

DUI Arrest And The Mandatory Alcohol Program

DUI Arrest And The Mandatory Alcohol Program

DUI Arrest: Penalties And Punishment

The punishment for an Orange County DUI can be harsh and can seriously affect your personal 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.

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, 2^nd floor, San Juan Capistrano, CA 92675
and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

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

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.