Theft and Vandalism: Prison Enhancement Depends on the Amount of Loss

criminal defense lawyers in Orange County

If you’ve been arrested for a theft crime, including grand theft, embezzlement, burglary or forgery, or for vandalism, then you might be facing mandatory prison time. Orange County criminal defense lawyers familiar with California Penal Code Section12022.6 know that the greater the value of the property taken, damaged or destroyed, the greater the sentence. This penal code section is called an “enhancement” because the sentence the judge gives is enhanced or increased by a specific term of imprisonment. In the case of theft or vandalism, section 12022.6 imposes an additional one year of imprisonment if the value of the property taken, destroyed or damaged exceeds $65,000.00.

If there are a series of crimes, and the cumulative value of the crimes adds up to this amount, then the enhancement also applies. For example, if a defendant commits multiple acts of identity theft over a period of months, then the court must look at the total value of all the acts of identity theft when determining the amount of loss. So if a defendant commits identity theft every week for a year and the value of property taken each time is $1,000.00, then the total loss would be $52,000.00 and the defendant’s criminal defense lawyer in Orange County could successfully argue that the enhancement does not apply.

Moreover, criminal defense attorney in Orange County will tell you thatthe enhancement must be specifically alleged in the Complaint or Information in order for the enhancement to  be imposed by the judge. The District Attorney must claim that the enhancement applies before a judge can impose it. However, once the enhancement is plead and proved, then the judge must impose it. The extra time of the enhancement is added on to whatever sentence the judge imposes for the theft crime or vandalism. So, for example, if a defendant is found guilty of grand theft of $66,000.00, then the judge must sentence the defendant to a sentence of 16 months, 2 years or 3 years for committing the grand theft. Then, on top of this sentence, the judge must give an additional year of imprisonment because of the 12022.6 enhancement.

If the act or acts if identity theft, grand theft, embezzlement or vandalism cause a loss of more than $200,000.00, then the enhancement goes up to TWO years of additional imprisonment. A loss exceeding $1,300,000.00, the enhancement goes up to THREE additional years. And a loss exceeding $3,200,000.00 draws an additional FOUR years. If you are facing charges in Orange County for vandalism or a theft crime such as burglary, embezzlement, identity theft, or grand theft, you need the advice of an experienced Orange County criminal defense lawyer. Call The Law Offices of EJ Stopyro at (949) 559-5500 today for a free and confidential consultation. Or visit our website at www.EJEsquire.com.

Suspended License Sting in the Orange County Courts

DUI Lawyer in Orange County

For several years now there have been rumors that people who have been arrested for DUI that show up for court proceedings in their case are being watched by Orange County Sheriff’s deputies. Orange County DUI Attorneys heard that their clients whose licenses had been suspended were being targeted by deputies in the courtroom and followed or monitored to see if they drove. Many DUI Attorneys in Orange County disregarded the rumors and didn’t believe that that was happening. Well, it seems that this was not mere paranoia.

An article published today in the Orange County Register reported that eight deputies had been assigned to a license suspension sting at the Harbor Justice Center in Newport Beach on Monday of this week. Under cover deputies inside the courtroom would listen to the cases being called and when a DUI case was called that involved a client with a suspended license, the deputy in the courtroom would relay a description of the driver to deputies waiting outside. After the case was called and the client finished conferring with their DUI Lawyer, the client was followed and watched to see if they drove.

Other deputies in uniform and on motorcycles were close by. If the under-cover deputy saw a   DUI defendant with a suspended driver’s license get into the driver’s seat of a car, the deputy was to alert the motorcycle cops. However, the DUI license suspension sting turned out to be a complete waste of EIGHT law enforcement officers. There were zero arrests! DUI Attorneys in Orange County  are not the only ones scratching their heads at this one. The tax paying public had the privilege of paying eight full-time salaries for the day for absolutely nothing.

If you are litigation a drunk driving charge at any of the Orange County courthouses, including the West Justice Center in Westminster; the Central Justice Center in Santa Ana; the North Justice Center in Fullerton; or the Harbor Justice Center in Newport Beach, please do NOT drive to court if your driving privileges are suspended OR restricted. Your DUI Attorney will tell you that even if you have received your restricted license you still cannot drive to court. A restricted license only allows you to do “work-related” driving, drive to and from school, and drive to and from the Alcohol program.

If you face charges for a DUI, DUI drugs, or a DUI with injury call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation.

Orange County DUI lawyers

Missouri v. McNeely: The Destruction of Implied Consent Law?

Orange County DUI lawyers

On April 17, 2013, the United States Supreme Court issued a decision in the case of Missouri v. McNeely (2013) 133 S.Ct. 1552. The decision caught the attention of DUI Attorneys in Orange County because it may be the death knell of California’s implied consent law. In McNeely, the defendant was arrested for DUI and was read implied consent—he was told that by law he must take a breath test or blood test to determine his blood-alcohol level. McNeely refused to take any test and the police conducted a forced blood draw. 

McNeely’s DUI Attorney brought a suppression motion asking the court to suppress the blood test result. The DUI Lawyer argued that, in spite of the implied consent law, there was plenty of time to get a warrant before taking McNeely’s blood and failure to get a warrant was a violation of the 4^th Amendment. The United States Supreme Court reviewed the case Schmerber v. California, (1966) 384 U.S. 757. In Schmerber a defendant was arrested for drunk driving after he was involved in an accident. The police officer on the scene had to transport him to the hospital and investigate the accident. On top of this, the blood-alcohol evidence continued to dissipate while the officer tended to these responsibilities. In this case the Supreme Court said the officer didn’t need a warrant to take the defendant’s blood because of the exigency of the circumstances.

DUI Lawyers in Orange County  know that Schmerber is the foundation of implied consent law everywhere. The idea is that because blood-alcohol evidence dissipates, this creates an “exigency” that justifies getting the evidence without a warrant. However, the Mcneely court essentially reevaluated Schmerber and held that the ruling of exigency in Schmerber was limited to that case because of the unique circumstances involved. Therefore, each case is to be evaluated to determine if there was enough exigency to justify a warrantless search in the DUI investigation. Thus, the police are not justified in making a person arrested for DUI take a blood or breath test unless there were circumstances that created an exigency. The mere fact that the evidence is dissipating is not enough grounds to create an exigency.

Mcneely now gives Orange County DUI Attorneys grounds to suppress blood or breath tests in almost every DUI arrest. The grounds to bring a suppression motion will remain until and unless the police get a warrant before forcing a driver to take a blood or breath test. The case provides a weapon for your Orange County DUI Lawyer to fight your case during court proceedings as well as at the  DMV hearing.

If you are facing prosecution for DUI, DUI with injury, or DUI drugs call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation. Or visit our website at www.EJEsquire.com.

The DMV Hearing: Late Blood Analysis Can Save Your License

Orange County DUI Lawyer

If you are arrested for a DUI in Orange County, whether it is DUI drugs or just old fashioned drunk driving, the arresting officer will confiscate your California driver’s license. (the officer will not confiscate an out-of-state license as the officer has no authority to do so) The officer will give you a pink piece of paper 8 ½ by 11 ½ inches. This piece of paper is your temporary license and it expires 30 days after the date you were arrested. You, or your DUI Lawyer in Orange County must call the DMV within ten days of your arrest and request a  DMV hearing. If you or your DUI Attorney don’t make that call, your license will be toast after 30 days and you will have no chance to stop it.

The DMV hearing can be won, although it is very uncommon. One mistake that is sometimes made by the Orange County Crime Lab, where the blood from those arrested for DUI is tested, is that the analysts delay too long before actually testing the blood. When this happens, DUI Attorneys in Orange County can then object to the introduction of the blood report as inadmissible. Case law holds that when a sample was tested six days after it was taken in a DUI arrest, the DMV cannot rely solely on the blood report as evidence of the blood-alcohol level.

Because of the delay in testing the blood, Orange County DUI lawyers know that the blood report was not made at or near the time of the blood draw, which is a requirement of the business records exception to the hearsay rule. Thus, the delay in analyzing the blood taken in a DUI arrest will require that the DMV have the analyst come and testify personally at the DMV hearing. Since the DMV almost never does that, they will be without admissible evidence of what the blood-alcohol level was.

If you and your Orange County DUI Attorney prevail at the DMV hearing, you can avoid the APS license suspension. However, the DMV will still issue a suspension if you plead guilty to DUI in court so that battle must also be won in order to preserve your driving privileges. If your DUI Lawyer in Orange County can somehow get you a wet reckless, then you will avoid a license suspension all together and only have to attend an Alcohol program.

If you’ve been arrested for DUI and would like to consult with an experienced DUI lawyer, call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation.

Orange County DUI Attorneys

DUI Arrest: Can I Get The Charge Reduced To A Wet Reckless?

DUI Attorneys in Orange County

As a DUI Lawyer in Orange County I am frequently asked by distressed people who have been arrested for drunk driving if there is any way to get the DUI      charge reduced to a reckless driving charge or “wet reckless”. The answer is “it depends”. Having practiced DUI defense in the Orange County courts for over ten years, I’ve learned that the prosecutors are interested in one thing—the strength of the case against the defendant. The stronger the DUI case against the defendant, the less inclined is the prosecutor to reduce the charge.
So what makes a strong DUI case? Well, first there is the blood-alcohol level as determined by a blood test, breath test, or both. Typically, the higher the blood-alcohol level, the better for the prosecutor. If your blood-alcohol result is close to or below a 0.08% your DUI Lawyer in Orange County will have a better chance at negotiating a wet reckless. Another important factor is your performance on the field sobriety tests. The field sobriety tests typically consist of the walk-and-turn test, the finger-to-nose test, the horizontal gaze nystagmus test (eye test), the Rhomberg test, and the one-legged stand. If you agree to take these voluntary tests, then the better you perform the better the chances of your Orange County DUI Lawyer to leverage a wet reckless.

Another important factor is how you drove before you were arrested. Was there “bad driving” or were you pulled over for an equipment violation? The more egregious the driving the less likely of getting a wet reckless deal unless the case has some other glaring weakness.

One such weakness may be proving that you were actually the driver of the vehicle in question. Other weaknesses may be that the breath test wasn’t conducted in compliance with Title 17 of the California Code of Regulations or there may be a question as to the initial detention itself. If there is an issue that is not certain by proof beyond a reasonable doubt, then your Orange County DUI Attorney may be able to obtain a wet reckless deal no matter how high the blood-alcohol results or how poorly you performed on the field sobriety tests.

If you have been arrested for a DUI, including a DUI drugs or DUI with injury and would like to know more about the wet reckless possibility, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic consultation. Or, visit our website at www.EJEsquire.com.

Orange County DUI lawyers

DUI Field Sobriety Tests: Divided Attention

Orange County DUI Attorneys

If you are pulled over by the CHP, Orange County Sheriff’s Department, or a local police agency in Orange County and the officer finds reason to believe that you have been drinking alcohol or taking drugs, whether prescribed or not, you will most likely become the subject of a DUI investigation. Unfortunately, you will not have your DUI Lawyer in Orange County by your side. If you fail the DUI investigation, then you will be arrested for DUI, DUI drugs, or DUI with injury depending on the circumstances.
The DUI investigation includes a series of questions, including queries about what you drank, when you drank, how much you drank, etc. Although you are NOT required to answer these questions, and usually you shouldn’t answer them without your Orange County DUI lawyer present, most people do answer them. The officer will then have you perform a series of field sobriety tests. These tests are also VOLUNTARY and you are under no legal obligation to perform the tests—although the officer will almost never tell you that. The final field sobriety test usually consists of a “voluntary” breath test.

The field sobriety tests are designed to test your physical and mental abilities but most importantly they are used as a way to gather evidence against you. In order to convict you of violation Section 23152(a) [DUI] in court proceedings, the prosecutor must prove that you were too impaired to drive a vehicle safely. The field sobriety tests are often the most compelling evidence that the DA can produce to show impairment.

DUI Lawyer in Orange County know that most field sobriety tests are designed to test your “divided attention”. This means that your attention during the test is divided between a physical component and a mental component. For example, on the walk-and-turn test, the subject must understand a complex set of instructions and execute these instructions while at the same time exercising balance and physical coordination. In fact, during the first part of this test, the officer will have the subject stand heel to toe on a line WHILE the officer gives the instructions. Thus, the subject literally must maintain their balance while listening to and processing the instructions.

The idea is that driving requires divided attention skills—a driver must use physical coordination while executing turns and other driving maneuvers while at the same time continuously processing data. Thus, poor performance on field sobriety tests is arguably an indication that the driver’s divided attention skills are too impaired to allow the driver to drive with the same care and caution customary of a sober person. Of course, a skilled Orange County DUI Attorney can usually cast doubt on the meaning of the “results” of these tests.

If you have been arrested for drunk driving and would like to consult with an experienced DUI Attorney, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic consultation.

DUI Field Sobriety Tests: The Walk-And-Turn

DUI Lawyers  in Orange County

If you are pulled over by the California Highway Patrol, the Orange County Sheriff’s Department, or a local police agency in Orange County, the officer will most likely conduct a DUI investigation if there is any indication that you have been consuming alcohol or drugs. Typically, it is the odor of an alcoholic beverage on the driver’s breath or coming from inside the car that prompts the officer to start a DUI investigation, complete with voluntary field sobriety tests. You don’t have the right to have your Orange County DUI Attorney present during the investigation, but you DO have the right to decline the field sobriety tests and to decline to answer any questions about what you ate or drank.

A favorite field sobriety test of most law enforcement agencies in Orange County is the walk-and-turn test. Orange County DUI Attorneys know that this test has two parts; the instructional phase and the walking phase. The driver is instructed to place a foot on a line, either real or imaginary, and to then put the other foot on the line in front of the first foot. The driver being investigated for DUI  is told to remain in this position, with their arms at their sides, until the instructions are complete. The driver is then told to take nine heel-to-toe steps along the line, while looking down at their feet, keeping their arms at their sides, and counting as they walk. They are told to walk continuously without stopping on the way. After nine steps, the driver is to execute a turn and to walk another nine steps along the line back to the beginning.

There are eight “clues” in this field sobriety test that the officer conducting the DUI investigation looks for. The more clues the driver demonstrates, the greater the likelihood that the driver is too impaired by alcohol or drugs to drive safely—DUI.  DUI Attorneys in Orange County know the eight clues are: 1) Balance during the instructional phase; 2) Starts the test too soon; 3) Stops while walking; 4) Misses heel-to-toe; 5) Uses arms to balance; 6) Steps off the line; 7) Improper turn; and 8) Takes wrong number of steps. The more clues the officer sees the greater the chances of convicting you of DUI.

A DUI officer usually has the driver do at least three field sobriety tests—usually including this one. After the field sobriety tests, the office will usually ask the driver to take a “voluntary” breath test as an additional field-sobriety tests. Even thought its voluntary, you still don’t have the right to consult with a  DUI Attorney in Orange County before making your decision. The officer is instructed to consider the driver’s performance on all of the field sobriety tests when deciding whether to arrest the driver for DUI or  DUI drugs, book them into the Orange County jail and serve them with an order of license suspension.

If you have been arrested for DUI and would like to consult with an experienced Orange County DUI Lawyer, call The Law Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential consultation.