What A Judge Must Consider When Setting Bail

Criminal Defense Lawyer in Orange County

Every county in California has a “bail schedule” for all bailable felony and misdemeanor offenses. The schedule lists the bail amount for the particular offense, including all drug offenses such as drug possession, drug sales and selling, transporting or giving away drugs. If the defendant, the defendant’s Orange County drug defense attorneys or, more commonly, a bail agent posts that amount, the defendant will be released pending the outcome of the case. At the arraignment, a defendant’s attorney can request the judge to reduce the bail and the DA can request that the judge raise the bail. Penal Code Section 1275 sets forth the factors that a judge MUST consider when deciding such a motion.

Primarily, the judge must consider public safety. Does the defendant pose a danger to the public if released? It is up to the defendant’s Orange County drug defense lawyer to convince the judge that they do not pose a danger. The judge must also consider the seriousness of the offense charged, any previous criminal record of the defendant, and the probability that the defendant will make court appearances if released. For example, a defendant facing drug charges of  possession with intent to sell with dual citizenship and no family or job in this country would be seen as a high flight risk and bail could be increased because of this.

With regard to the seriousness of the crime, Section 1275 specifically states that this means considering any injury to the victim, (often a consideration in domestic violence cases), any alleged threats to the victim or to a witness, and the alleged use or possession of controlled substances by the defendant. In considering bail for many drug offenses, Section 1275 directs the judge to consider the alleged amounts of the controlled substances involved, be it heroin, methamphetamine or any other controlled substance.

Section 1275 prohibits a judge from reducing the bail below the bail schedule amount for strike crimes. (serious or violent felonies) This usually does not apply to drug cases unless there are other serious charges along with the drug charges.

If you are facing criminal charges in the Orange County court and would like to talk to an experienced criminal defense attorney in Orange County, call the Law Offices of EJ Stopyro today at (949) 559-5500. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Orange County drug defense lawyers

DUI Evidence At Trial: Bloodshot Eyes

DUI Lawyer in Orange County

In just about every DUI trial in Orange County the arresting officer will testify that one of the first clues that the driver was under the influence of alcohol or drugs was that the driver had bloodshot or watery eyes. In fact, the DS 367—a DMV  form used by all California law enforcement personnel in a DUI investigation—has a box right on it next to the words “bloodshot/watery eyes”. The idea is that the officer check this box if the driver had red or watery eyes. Of course, the mere presence of this box on the DUI investigation form is extremely suggestive and good Orange County DUI Attorneys will make sure that the jury understands just how suggestive this is.

A skilled Orange County DUI Attorney will also, while cross-examining the arresting officer, get the officer to commit to his reliance on this clue. Thus, the jury will see that once the officer saw red or watery eyes, they assumed the driver was under the influence of drugs or alcohol and biased toward guilt from that point on. A DUI Lawyer will expose the DUI officer’s bias by showing that red or watery eyes can be caused by many non-alcohol related factors—such as fatigue, sun exposure, allergies, smoke, or pollution.

Once the DUI Attorney in Orange County educates the jury about the many causes of bloodshot or watery eyes—sometimes by expert testimony—the defense attorney should then show the jury that the DUI officer never even considered these other possibilities. For example, the  DUI Lawyer in Orange County should ask the officer “did you ask my client whether he has allergies? (They almost never do) Did you ask my client whether he had been in the sun during the day? Or whether he or she had been in a smoky or polluted environment recently? Did you ask the driver whether they had slept recently? Of course, the DUI attorney will know the answers to these questions in advance. If the officer did ask any of these questions, it will be in the report.

By establishing the many causes of red or watery eyes, and by then establishing that the officer never even considered these other possibilities, your DUI defense lawyer will not only negate the value of this evidence, but will also show that the cop was biased against the driver from the start.

If you face charges for DUI or DUI with injury in Orange County and would like to consult with an experienced DUI defense attorney, call the Law Offices of EJ Stopyro today. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Orange County DUI lawyers    

Your Rights At A Preliminary Hearing: (Part 2)

Domestic Violence Attorney in Orange County

If you face felony charges for domestic violence in the Orange County courts then you have the right to a preliminary hearing. The right to a preliminary hearing means that you are entitled to a host of rights concerning that hearing, not the least of which is effective assistance of an Orange County Domestic Violence Lawyer.  You have the right to a lawyer of your own choice and if you tell the judge that you want to be represented by a particular Domestic Violence Lawyer in Orange County, then the judge will order the bailiff to contact the criminal defense lawyer of your choice forthwith. However, if you cannot afford an attorney, you no longer have the right to choose which lawyer represents you, but you still have the right to be represented by a criminal defense lawyer and the court will appoint one at no cost to you. If you decide that you want to represent yourself at the domestic violence preliminary hearing—which is almost always a bad idea—the judge MUST respect that right too.

At the domestic violence preliminary hearing you also have the right to a court-appointed interpreter if English is not your primary language. If you are in custody on charges of domestic battery, corporal injury, criminal threats or child endangerment, you still have the right to be present at the preliminary hearing. If, however, you are out of custody and fail to show up for the preliminary hearing, the judge can find that you waived your right to be present and the preliminary hearing can go forward without you. The District Attorney MUST provide all exculpatory and relevant evidence in their possession to your domestic violence lawyers. If the DA fails to do so your criminal defense attorney can file a common law motion to dismiss.

Once the domestic violence preliminary hearing is over, you have the right to a transcript of that proceeding at no cost. The transcript must be made available 10 days after the hearing. Your Orange County domestic violence attorney has the right to cross-examine ALL witnesses that testify at that hearing. However, cross-examination is limited to questions relevant to establishing an affirmative defense, negating an element of the crime, or impeachment of the witness. Moreover, any witness your defense lawyer calls must give testimony relating to those three topics. You also have the right to sit at counsel table during that hearing without being shackled. In order to shackle a defendant at a domestic violence preliminary hearing the DA must make a showing of need.

If you face charges for domestic violence in Orange County and would like to consult with an experienced domestic violence lawyer, call the Law Offices of EJ Stopyro at (949)-559-5500. The telephonic consultation is free and confidential. Or visit our website at www.EJEsquire.com.

Domestic Violence Attorneys in Orange County

Slurred Speech: Dealing With Evidence In A DUI Trial

Orange County DUI lawyers

In nearly every DUI case I have handled the arresting officer says in the arrest report that the driver had “slurred speech”. At trial,  DUI Attorneys in Orange County know that the arresting officer will testify that this slurred speech was one of the factors that led to their conclusion that the driver was too intoxicated to drive safely. However, a skilled Orange County DUI Lawyer will be able to minimize the effect of this “evidence”.

First of all, there are many reasons that a person’s speech pattern may appear to be slurred. For instance, stress can make this happen. And it is hard to refute that an encounter with a police officer who is trying to build a case against you is an extremely stressful event. Moreover, fatigue will also cause speech to sound slurred. But more importantly, a person may naturally speak slowly or with a slight drawl. In a DUI trial, a good Orange County DUI Attorney will cross examine the arresting officer and make clear that when the officer stopped the driver, this was the very first time the officer ever heard the driver speak. In other words, the officer had no baseline with which to compare the driver’s speech.

Another trial technique is to get the officer to commit to his assertion that the driver’s speech was slurred or “incoherent” as they often describe it. Then, Orange County DUI Attorneys will go over the arrest report, which contains dozens of questions that the officer asked the driver during the DUI investigation. Things like, where were you going? Where are you coming from? Are you sick or injured? What did you last eat? Etc. After each question, the dui lawyer will establish that the officer successfully recorded the driver’s answer. In almost every case, the officer will have successfully understood and recorded the driver’s answer. When the jury hears all the questions that the driver answered and that the officer had no problem understanding the answers, the officer’s testimony that the driver’s speech was slurred becomes less and less credible.
Finally, DUI Lawyer in Orange County will make sure the jury knows that the arrest report used by the officer is suggestive and biased in the way it is formatted. The form itself contains boxes for the officer to check. One of the boxes is next to the words “slurred speech”. Thus, the form is not just a narrative where the officer explains what he or she saw, it contains suggestive symptoms with a box next to the symptoms. This form is filled out by an arresting officer AFTER he or she has made the decision to arrest the driver for DUI and must now justify that decision. The appearance of the symptoms right on the form suggests to the officer that they should have seen these symptoms before making the arrest.

If you have been charged with a DUI in Orange County and would like to discuss your options with an experienced DUI Lawyer in Orange County, call the Law Offices of EJ Stopyro at (949) 559-5500. The consultation is free and confidential. Or visit our website at www.EJEsquire.com.

DUI Attorney in Orange County    

Orange County criminal defense lawyer 

Preliminary Hearing: An Overview (Part 1)

If you are arrested for felony drug charges, including drug possession or drug sales, the DA’s prosecution usually begins with the filing of a Complaint. A less common beginning is when an indictment is handed down by the grand jury. The vast majority of drug cases in Orange County begin with the filing of a Complaint, which is the document that lists the formal drug charges against you. When a Complaint is filed you have the right to a preliminary hearing within ten days of arraignment on the Complaint. The preliminary hearing is an evidentiary hearing where the DA must present enough evidence to a judge to justify going forward with the prosecution. The evidence must show that probable cause exists to believe that a drug crime has occurred and that you committed it.

The preliminary hearing provides your drug defense lawyer in Orange County to ask the judge to reduce any “wobbler” offense to a misdemeanor.  A wobbler is a drug crime that can be charged as a felony or a misdemeanor. Your defense lawyer can also ask the judge to strike certain enhancements. This hearing also gives your Orange County criminal defense lawyer the chance to expose any weakness in the DA’s case and possibly get a good plea bargain. In cases of “serious” offenses (strike crimes), the law does not allow plea bargaining AFTER the preliminary hearing so plea bargaining at this stage may be a must.

Not all the witnesses in the case will testify at the preliminary hearing. At this hearing, police officers are allowed to testify about what other civilian witnesses told them. This “hearsay” is not allowed at trial. There are also limitations on what your criminal defense lawyer in Orange County can cross-examine the police officers about. Cross-examination is limited to the purpose of 1) raising an affirmative defense, 2) negating an element of the drug crime, and 3) impeaching a witness. Your drug defense attorney cannot cross-examine for the purpose of “discovery”—to learn information that will help at trial. Moreover, any evidence that your drug defense attorney puts on is limited to these three purposes.

If there is an issue that evidence may have been illegally obtained by the police, your Orange County drug defense lawyer can also bring a motion to suppress that evidence at the preliminary hearing. However, most defense attorneys prefer to bring the suppression motion later in the trial court.

If the DA meets their burden, as they almost always do, the judge issues a “holding order” requiring you to face prosecution for the charges. The judge will then order you and your defense lawyer to the trial court within 15 days to be arraigned on a new document called an “Information”.

If you have been arrested for a drug charge in Orange County call the Orange County drug defense attorneys at the Law Offices of EJ Stopyro at (949) 559-5500 today. The telephonic consultation is free and confidential. Or visit our website at www.EJEsquire.com.

criminal defense lawyers in Orange County

 

DUI Evidence: Odor Of Alcohol On A Driver’s Breath

DUI Lawyer in Orange County

In virtually every DUI trial in Orange County, except where the DUI is allegedly based on DUI drugs, the arresting officer testifies that he smelled an odor of an alcoholic beverage on the driver’s breath. Usually, the cop says it was a “strong” odor but every once in a while they will say the odor was moderate. Most DUI cops and Orange County DUI Attorneys know that methyl alcohol actually has no odor at all. It is the beverage’s flavoring that actually gives off the odor associated with alcohol. And when DUI cop testifies that this strong odor is consistent with intoxication, a skilled DUI Attorney in Orange County can turn this against the officer and perhaps discredit his entire testimony.

The fact is, there is absolutely no correlation between the strength of the odor of an alcoholic beverage and the blood-alcohol level. A recent study shows that it is impossible to predict blood-alcohol levels or level of impairment in a DUI case based on the odor of an alcoholic beverage on one’s breath. In fact, you cant even tell WHAT a person was drinking by the odor. Moreover, DUI Lawyer in Orange County know that the beverages with the lowest alcohol concentration actually produce the strongest odor. Beer and wine produce a far stronger odor of an alcoholic beverage than do whiskey, gin, or other “hard alcohol”. The odor produced by a single beer is usually stronger than the odor produced by four of five mixed drinks. Furthermore, drinking non-alcoholic beer will produce this same odor even though there is no alcohol at all.

Furthermore, the odor of an alcoholic beverage provides no clue as to when the beverage is consumed. A “strong” odor of an alcoholic beverage can be produced immediately by drinking a small amount of beer or wine. It can also be produced by drinking a large amount of an alcoholic beverage. There simply is no correlation between the strength of the odor and when the beverage was consumed. Thus, the odor of an alcoholic beverage gives absolutely no information about WHAT a person drank, HOW MUCH alcohol a person consumed, or WHEN the person consumed it.

With this in mind, DUI Attorneys in Orange County will often cross examine the arresting DUI officer in such a way as to cement the officer’s reliance on this odor of an alcoholic beverage as a factor in determining that the driver was DUI. At the very least it shows that the officer, once having smelled the odor, was biased against the driver from that point on. If the officer relied on the odor to conclude that the driver was under the influence of alcohol, the entire testimony of the officer can be discredited.

If you have been charged with a DUI in Orange County and would like to talk with an experienced Orange County DUI Lawyer, call the Law Offices of EJ Stopyro today at (949) 559-5500. The consultation if free and confidential. Or visit our website at www.EJEsquire.com.

Orange County DUI Attorney

DUI: Suspension Of The Commercial Driver’s License

Orange County DUI lawyers

If you are the holder of a California commercial driver’s license, that license is subject to suspension or revocation even if you are driving a non-commercial vehicle. Commercial drivers and  DUI Attorneys in Orange County know that a commercial license will be administratively suspended after a  DMV hearing for one year if the driver operates a commercial vehicle with a blood-alcohol level of 0.04% or greater. This suspension period shoots up to three years if the driver was hauling hazardous waste at the time of the violation. But a conviction for a DUI,  DUI drugs, or a DUI with injury in a non-commercial vehicle will also result in a one-year suspension on a commercial driver’s license. (California Vehicle Code Section 15300)

These are not the only ways that a commercial license holder can lose that license. A refusal  to submit to a chemical test (blood or breath test) when driving a non-commercial vehicle will also lead to a one-year suspension for a first offense. Also, unknown to most commercial license holders and even some  Orange County DUI Attorneys, a driver who holds a commercial license who leaves the scene of an accident involving a motor vehicle operated by the driver, even where it is not a commercial vehicle, will lose their commercial license for one year. Another obscure provision familiar to DUI Lawyers in Orange County says that using any motor vehicle to commit a felony must also result in the one-year suspension of a commercial driver’s license.

This one-year suspension is imposed on any first-offense listed above. A second offense DUI, or a second violation of any of these violations, or driving on a suspended license because of any of the above violations, mandates a lifetime ban on operating a commercial motor vehicle in California.

If you are the holder of a California commercial driver’s license and face a license suspension for any of the reasons discussed above, call the Law Offices of EJ Stopyro today at (949) 559-5500. You can consult with an experienced Orange County DUI Lawyer at no cost. Or visit our website at www.EJEsquire.com.

DUI Lawyer in Orange County