0.08% Blood-Alcohol and Extrapolation

DUI Attorneys in Orange County

When a police officer conducts a DUI investigation on a driver, whether at a DUI CHEKPOINT or after a traffic stop, the officer will inevitably ask the driver a series of questions about when they started driving, where they started from and what and when the driver drank and ate. Any Orange County DUI lawyer will tell you NOT to answer these questions. The questions are designed to prevent the driver from using the “RISING DEFENSE” after they have been charged with DUI. Moreover, the questions are designed to place you behind the wheel long before the officer saw you drive which provide the prosecutor a much better chance to convict you of a DUI.

You see, the level of alcohol in someone’s blood is always changing. As it moves from the stomach to the blood you are in the “absorptive” phase and your blood-alcohol level is rising. And alcohol is constantly being eliminated from one’s blood stream. When elimination is greater than absorption, you are in the elimination phase. So, as any Orange County DUI Attorney will tell you, a driver’s blood-alcohol level is always changing.

Once the officer finishes his DUI investigation, which usually includes an extensive interview about any food, alcohol and drugs you may have ingested as well as any medical conditions which may skew a chemical test—such as diabetes—the officer will make a decision whether to arrest you. This DUI investigation usually takes about 30 minutes and, once you are arrested, you must submit to a blood test or a breath test. If the officer must take you to the station for a test, then the test is usually given 90 minutes to two hours AFTER the time of driving. Your DUI Lawyer will tell you that this time delay is important because the real issue is what your blood-alcohol level was when you were DRIVING, not when you were in the police station.

So, for example, if a blood test reveals a driver has a blood-alcohol level of a 0.06% two hours AFTER driving, you might expect the case to be dismissed. But, in fact, it probably will not be dismissed. You see, the toxicologists at the Orange County Crime Lab will work backwards (extrapolate) from your blood-alcohol result two hours later and come up with a probable blood-alcohol level at the time of driving. DUI Attorneys in Orange County know the “average” person eliminates alcohol from their system at a rate of 0.015% per hour. So, working backwards from a blood-alcohol level of 0.06%, and assuming a standard elimination rate, the driver’s calculated blood-alcohol level at the time of driving two hours earlier would be 0.09%. Since this calculated level is above the legal limit of 0.08%, the DISTRICT ATTORNEY would likely proceed with prosecution on this low blood-alcohol level relying on extrapolation.

The use of this “science” in DUI cases of course is nowhere near perfect. It assumes that every person eliminates alcohol at the same level. This fallacy must be exposed to a jury by a skilled DUI Attorney in order to educate the jury and to avoid a DUI conviction. If you have questions about effective DUI defenses or DUI penalties call The Law Offices of EJ Stopyro at (949) 559-5500. You can consult with an experienced Orange County DUI Attorney for free. You can also go to our website at www.EJEsquire.com. Our main office is located at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

Criminal defense lawyers in Orange County

Penal Code Section 148(a) And Free Speech

Orange County
criminal defense attorneys

 Section 148(a) of the California Penal Code makes it a
misdemeanor to resist, obstruct or delay a peace officer in the performance of
their legal duty. Violation of the this section will expose you to a possible
year in the Orange County jail. But what does it mean to resist, delay or
obstruct? Well, any criminal
defense lawyer in Orange County knows that this vague language gives police
officers wide latitude in deciding to arrest someone for violating Section148(a). Moreover, we Orange County
criminal defense lawyers are all too familiar with the widespread abuse of
this section by many police officers who arrest people who show the slightest
disrespect toward them or the smallest hesitation to jump at their commands.
This unfortunate truth is discovered by many innocent people every day.

You see, it is perfectly legal to question a police officer
when he is telling you to do something or is on your property. The First Amendment
of the United States Constitution guarantees us all the right to question authority
and to voice our opinion. Moreover, as any experienced criminal
defense attorneys in Orange County knows, it is not against the law to
respond slowly to a cops commands. (Peoplev. Quiroga 16 Cal.App.4th 961) But when you DO question a cop—perhaps
telling him he needs a warrant to do what he is doing—or don’t instantly do
what they say, all too often the cop will retaliate by arresting you for
violating Section 148(a). The cop may be fully aware that you MAY beat the
charge in court, but he doesn’t care about that.

Unfortunately, the innocent victims who have the temerity to
question a cop or not do what he says at the snap of his fingers must endure an
arrest, must often hire a criminal
defense lawyer, and then go through the court process before an illegal
arrest under this section is recognized as illegal and the charge dismissed. In
these instances, there is almost never any repercussion for the police officer
who made the illegal arrest in the first place. Although the illegal arrest
exposes the cop to a civil lawsuit for violation of your Constitutional rights,
few people are willing to go through such a suit, which can cost money up
front. In these instances, you do have the right to file a complaint against
the cop—which you ABSOLUTELY should do. It stays in the cop’s file for five
years and if he makes another illegal arrest, the arrestee can see that
complaint and possibly use it against the cop.

If you face criminal charges for Penal Code Section 148(a)
Resisting, delaying or obstructing an officer, call The Law Offices of EJ Stopyro
at (949) 559-5500. You can speak to a criminal defense attorney
in Orange County and learn your options and defenses. Or you can visit our
website at www.EJEsquire.com. Our main
office is located at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675.

Stopped For A DUI?: Don’t Lie To The Officer

Orange County DUI Lawyer

If you are
ever stopped by the police after you have consumed some alcohol, whether for a
traffic violation or at a DUI
checkpoint, the officer
will undoubtedly conduct a DUI investigation if he suspects that you have any alcohol
in your body. The first thing the officer may do is to question you about what
you drank, when you drank it, and how much you drank. It is essential to
remember that you have no obligation to answer any of these questions without
first consulting with your Orange County DUI Attorney. However, the first instinct of most
drivers is to answer the questions with less than honest responses. This is
almost always a bad idea. The better course is to politely decline to answer
without first talking to your DUI Lawyer in Orange County.

The
questions the officer asks during a DUI investigation have been very carefully
crafted to convict you of a DUI. If you answer the questions honestly, you may
incriminate yourself and deprive you and your DUI Lawyer of the use of a RISING DEFENSE during court proceedings. If you lie, you will destroy your
credibility at trial. That’s why the best course of action is to provide as
little information as possible while being polite and courteous to the officer.
Remember, you can politely invoke your right to talk to your DUI Attorney before answering ANY questions about alcohol or food consumption.

The most
common mistake by drivers is to deny drinking any alcohol at all. The second
most common mistake is to tell the cop you drank far fewer drinks than you have
and to give a time of drinking far earlier than actual. These lies can be
easily exposed by a result on a blood test or a breath test that you must do after you have been
arrested. Once the lie has been established, a jury gets to hear about it at
trial. Jurors will hold this against you and will probably not believe any
testimony you give. Moreover, over your Orange County DUI Attorneys objection, the judge will give the
jury the following instruction:

“If the defendant made a false or misleading statement before
this trial relating to the charged crime, knowing the statement was false or
intending to mislead, that conduct may show he/she was aware of his/her guilt
of the crime and you may consider it in determining his/her guilt.”

This “consciousness
of guilt” instruction is a favorite of the Orange County District Attorney and they use it in every DUI trial
where they can show the defendant gave untrue statements about what they drank
and how much they drank.                                          

If you face charges
for a DUI, DUI drugs or DUI with injury call The Law Offices of EJ Stopyro at
(949) 559-5500 today for a free and
confidential telephonic consultation with an experienced DUI LAWYER. Or, visit
our website at www.EJEsquire.com. Our
main office is at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675.                                                

Orange County criminal
defense lawyers

DUI Trial: How Does A Jury Define “Reasonable doubt”?

DUI Lawyers in Orange County                                           

When a
police officer conducts a DUI investigation on a driver the officer has stopped
or detained at a DUI
checkpoint, the officer can arrest the person for DUI if
he has a strong suspicion that the driver is actually guilty of drunk driving and
that suspicion is objectively reasonable. This level of suspicion, called “probable
cause” is typically reached after the officer has conducted field sobriety tests
on the driver, including a voluntary breath
test called a “preliminary alcohol
screening test” or PAS. Field sobriety tests aren’t the only thing the officer
can consider in forming probable cause though. The officer can also consider
any bad driving as well as any admissions by the driver about the number of
drinks they consumed or drugs they have taken. (DUI
drugs) That’s why you should never talk to the police about what you drank
or consumed without talking to your DUI
Lawyer first. If the bad driving resulted in an accident where someone
other than the driver was injured, then the driver could face charges for DUI
with injury which can be charged as a
felony.

Although probable
cause is enough to justify arresting a person but it is far from sufficient to
convict a person of DUI. DUI
Attorneys in Orange County will tell you that in order to actually convict
someone of DUI the District
Attorney must prove beyond any reasonable doubt that the defendant was in
fact unlawfully driving while under the influence of alcohol or drugs. If the
DA meets this burden, then the driver faces serving time in the Orange
County jail and is also subject to a license
suspension. The burden of proof beyond any reasonable doubt is part of the
foundation of our free and democratic society. Moreover, the DA must prove its
case to twelve ordinary citizens and all of the twelve people must agree that
the prosecutor has met this very weighty burden before a driver can be
convicted of DUI, DUI drugs, or DUI with injury.

If, during
the court
proceedings you and your DUI Lawyer in Orange County decide to take the case to trial, then the jury will
be instructed by the judge on the reasonable doubt standard. But what does reasonable
doubt mean?... asks the jury. And the judge defines reasonable doubt in the
following way:

“Proof beyond a reasonable doubt is proof that leaves you
with an abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in live is open to some
possible or imaginary doubt. In deciding whether the People have proved their
case beyond a reasonable doubt, you must impartially compare and consider all
the evidence that was received throughout the entire trial. Unless the evidence
proves the defendant guilty beyond a reasonable doubt, the defendant is
entitled to an acquittal and you must find the defendant not guilty.”

A skilled Orange County DUI Attorney will
use this instruction and provide several examples of when a jury must render a
verdict of not guilty. If a DUI lawyer is effective in communication the heavy
burden that the prosecutor must prove, then there is often a good chance of at
least one juror not finding the driver guilty of DUI.

For a free
telephonic consultation with an experienced DUI attorney, call The Law Offices of EJ Stopyro at (949) 559-5500. The consultation is
confidential. Or you can visit our website at www.ejesquire.com.
We have office locations throughout Orange County. Our main office is located
at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA
92675.

criminal defense
lawyers in Orange County   

The Breathalyzer And The DUI Trial

DUI Lawyer in Orange County
The Breathalyzer And The DUI Trial

If you are the subject of a DUI investigation in Orange County, because you were stopped for some traffic violation or at a DUI checkpoint, you will likely be asked to take field sobriety tests and to take a voluntary breath test. This voluntary test, called a Preliminary Alcohol Screening test (PAS test) should almost never be consented to. Moreover, if you are arrested for a DUI, whether it is a first offense DUI or if you have prior DUIs, you will be advised be the arresting officer that you must submit to either a blood test or a breath test to determine your blood alcohol level.

DUI Attorneys in Orange County know that the breath test is not the most accurate test. In fact, the breath testing device will often read a little higher when the person taking the test is in the “absorptive” phase. That is to say, when the alcohol in a person’s stomach is being absorbed into the blood, the breath machine tends to read high. Absorption usually happens within 30 minutes or so of the last drink, but can be delayed by up to three hours depending on how much food is in the stomach. Thus, if you are in the absorptive phase and you take a breath test, the result may be inaccurately high. An actual blood-alcohol level of 0.06% may produce a false reading of 0.08% and this evidence will be used to convict you of a DUI you didn’t commit.

Therefore, it is very common for Orange County DUI lawyers to have an expert testify at the DUI trial and explain this phenomena to the jurors. Although jurors in a DUI trial tend to be very skeptical about this expert testimony, if just one juror accepts the truth of it, a DUI conviction can be avoided. A single dissenting juror will cause a mistrial and more often than not the DA will offer to settle the case with a wet reckless rather than retry the case.

However, in the recent appellate court case of People v. Vangelder (11/21/2013) the appellate department held that DUI Attorneys in Orange County can no longer put on expert testimony on this point in DUI trials. Not because the testimony isn’t accurate or true—it is—but because the legislature doesn’t care whether it’s true or not. The appellate court found that the legislature went to great lengths to make clear that California Vehicle Code section 23152(b) makes it a crime to drive when a breath test shows a reading of 0.08% or higher, regardless of whether breath machines in general tend to read high during the absorptive phase.
Thus, although Orange County DUI Attorneys can still, in a DUI trial, challenge whether the specific breath testing machine used in the case was working properly, they can no longer present evidence about the general fallibility of breath testing machines.

If you are being charged with a DUI and have questions about the penalties for DUI, court proceedings, DMV hearing, or license suspension and would like to talk to an experienced DUI Attorney about your case call The Law Offices of EJ Stopyro at (949) 559-5500. You can also visit our website at www.EJEsquire.com. We have office locations at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.

Orange County criminal defense lawyers

Changes to The DUI Law: CVC 23152

DUI Lawyer in Orange County

The main drunk driving statute for California, California Vehicle Code Section 23152, takes on a new look in 2014, but the substance is still the same. Most Orange County DUI Attorneys can almost cite section 23152 verbatim. And it has long been true that we DUI attorneys refer to “the A count” to refer to the part of the DUI law that makes it illegal to drive with any drug or any level of alcohol in your system such that the driver can no longer driver with the same care and caution customary of a sober person. (field sobriety tests are important here) The “A count” was the primary charge by the District Attorney where a person was charged with driving under the influence of a drug (DUI drugs ). If the person had no alcohol in their system, they would only be charged with the A count. The A count was also called the “lightweight count” because even if a driver has a blood-alcohol level below a 0.08% on a blood test or a breath test, the driver can still be found guilty of a DUI at a jury trial in the Orange County court. The “B count” on the other hand has always been recognized by drunk driving lawyers as that part of the DUI law that prohibits any person from driving with a blood-alcohol level of 0.08% or greater, no matter how little they may be impaired by the alcohol on board.
The new language of Vehicle Code Section 23152, the drunk driving statute, now eliminates this shorthand from the vernacular of Orange County DUI lawyers—at least with respect to driving under the influence of drugs or “DUI drugs”. The new section still makes it illegal to drive under the influence of alcohol, but says nothing about driving under the influence of drugs. For some reason, the legislature has found it necessary to give the offense of DUI drugs its own subsection. Subsection (e) of section 23152 now states “it is unlawful for a person who is under the influence of any drug to drive a vehicle.” The reason for the change is a mystery.
Moreover, the A count used to specifically address the offense of driving under the influence of a combination of drugs and alcohol. That offense has also been given its own subsection. Subsection (f) of section 23152 now makes it a separate offense. It states: “it is unlawful for a person who is under the combined influence of any alcoholic beverage and drug to drive a vehicle.” DUI Lawyers in Orange County will now have a new shorthand for the various offenses; the A count now only means driving under the influence of alcohol, regardless of the tested blood-alcohol level. The B count still means driving with a blood-alcohol level of 0.08% or greater, the E count will now mean that the person is accused of driving under the influence of a drug (drug DUI) and the F count will refer to the situation where the driver has both alcohol and drugs on board and was too impaired to drive, regardless of the blood-alcohol level. The C count still makes it illegal for a person who is addicted to a drug to drive with that drug on board and the D count still criminalizes driving a commercial vehicle with a blood-alcohol level above a 0.04%.
Thus, a person could conceivably be charged with six counts of DUI all stemming from one single act of driving. Of course, even if a person were convicted of all six counts, he or she could only be punished once. This single punishment rule is found in penal Code Section 654.
If you face any of the above DUI charges, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced DUI Attorneys in Orange County. We have offices at: 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.
criminal defense lawyers in Orange County

Criminal Threats: Threatening To Defend Yourself Is Not A Crime

Criminal defense lawyers in Orange County

California Penal Code Section 422 makes it illegal to threaten to kill or cause great bodily injury to a person or a member of that person’s family, with the specific intent that the statement be taken as a threat, even if there is no real intent to carry it out. This law is also known as “terrorist threats” but that name has fallen out of favor. Orange County criminal defense lawyers know that this law is a “wobbler”. This means that the District Attorney can charge it as either a felony or as a misdemeanor. If the criminal threat is charged as a misdemeanor, the defendant faces a maximum punishment of one year in the Orange County jail.  If Criminal Threats is charged as a felony, then the defendant faces up to three years in the California state prison. If any enhancements apply—such as use of a firearm, prior prison term, or gang enhancement just to name a few, then more prison time may be added. In deciding whether to charge the criminal threat a misdemeanor or felony the prosecutor usually considers the defendant’s criminal record, the circumstances under which the threat is made, and the seriousness of the threat itself.

If you are charged with making a criminal threat it is important that you are represented by a skilled criminal defense or Domestic Violence Attorney in Orange County. Not every threat can be prosecuted. For example, in a recent case handled by criminal defense lawyers at The Law Offices of EJ Stopyro, the defendant was on vacation with his brother in Las Vegas. The two had an argument and the defendant returned to Orange County. His brother returned shortly after and came to the defendant’s house to pick up his vehicle. The “victim” contacted the defendant in front of the defendant’s house. They argued briefly before the defendant said to the victim “I’ll shoot you in the head”. The victim immediately reported this to the police and the defendant was arrested and charged with violating Penal Code Section 422—criminal threats.   

When I investigated the case I found that when the brothers were in Las Vegas, the “victim” has actually assaulted the defendant. The defendant called the police but no arrest was made. Moreover, the victim was much younger and stronger than his older brother. And finally, when the two argued in front of the defendant’s home, it was the victim who advanced toward the defendant and it was that advance that caused the defendant to say “I’ll shoot you in the head”.  I presented this evidence to the District Attorney and argued that the defendant’s threat was not illegal because he was threatening to defend himself against a person who has previously assaulted him and appeared ready to assault him again. On the day of trial the District Attorney offered to reduce the charge. The victim and his criminal defense lawyer refused the offer and demanded to go to trial. The District Attorney dismissed all charges against the defendant rather than go to trial. The lesson: a threat to cause death or serious injury is not a crime when made in self-defense.

If you have been charged with criminal threats or any other crime such as Domestic Violence, drug sales, or  identity theft call The Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation with an experienced Orange County criminal defense attorney. We have office locations at: 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627 and at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675.

Domestic Violence Lawyers in Orange County