Illegal “Pat Down” Search: Your Key To A Dismissal

Orange
County drug defense attorney

 

The idea that the police can conduct a pat down search on
anyone they please seems to be ubiquitous. You can barely find an episode of
Cops without seeing a cop randomly perform a pat down search on a person they have
come upon and subsequently arresting that person for drug
possession (possession of a controlled substance) or drug sales.
Cops, as well as the public, seem to believe that the pat down search is
completely within the discretion of the police to do at any time they like, on
whomever they like. But fortunately, this is not the truth. Any drug
possession lawyer in Orange County will tell you that the police do not
have the right to put their hands on people without specific legal
justification. Moreover, if a cop violates this legal principal, evidence that
was obtained by the search can be thrown out and the cop is subject to a civil
lawsuit for violating a person’s civil rights.

So if these bad things can happen to a cop who does an
illegal pat down search WHY do the cops still do them … all the time. Well, to
be honest, the cop doesn’t really care if the defendant’s drug
possession attorney  gets the evidence
thrown out. It doesn’t affect the cop any. And as far as civil liability, well
the cop isn’t really afraid of that either. You see, it takes money to bring a
civil suit against a cop and most of the people the cops search don’t have it.
Those that can afford to sue usually don’t because it takes time and energy
too. So, cops continue doing illegal pat down searches routinely. And if you
have been arrested for drug possession, weapons possession, or any other crime
as a result of an illegal pat down search, then you should call The Law Offices
of EJ Stopyro at (949) 559-5500 for a free and confidential telephonic
consultation with an experienced criminal
defense lawyer in Orange County.

The law governing a pat down search can be found in the
landmark case of Terry v. Ohio. In that case, known well by any quailed Irvine criminal
defense lawyer, the U.S. Supreme Court laid down the rule for when a cop
can perform a pat down search on somebody. The Court held that in order for a
pat down search to be legal, the cop must have had:

1)     
A reasonable suspicion

2)     
Based on articulable facts

3)     
That the defendant was engaged in criminal activity and

4)     
Was armed and dangerous.

If these four elements didn’t exist, and the cop who
performed the pat down search didn’t have a warrant or an exception to the
warrant requirement, then your Mission
Viejo criminal defense lawyer may be able to get the evidence against you
suppressed and the charges dismissed. The illegal pat down search leads to
countless arrests for drug possession, drug sales, and weapons charges.
Shamefully, many of the illegal searches go UNCHALENGED and the defendant ends
up pleading guilty to a charge they could have had dismissed.

DUI Plea Bargain: Can The DA Withdraw Their Offer?

DUI Attorneys in Orange County

If you are
convicted of a misdemeanor DUI in California you face a maximum sentence of one year
in the county jail. You can also be fined up to one thousand dollars. With
penalty assessment, which is essentially a court tax, the maximum fine is close
to six thousand dollars. Most DUI’s are misdemeanor DUIs unless someone other
than the defendant was injured, the defendant has at least three prior DUI
convictions within the past ten years, the defendant has a prior felony DUI
conviction, etc. Although the maximum penalty for a misdemeanor DUI is very draconian,
most Orange County defendants, with the help of their Orange County DUI Attorney, will negotiate a plea deal for much less than the
maximum punishment.

Typically, a
defendant’s Westminster DUI Attorney will strive to get the entire case dismissed.
For example, if the officer stopped the defendant without sufficient reasonable
suspicion, then the defendant’s Huntington Beach DUI Attorney can bring a suppression motion. If
the judge agrees that the stop was made under facts that don’t give rise to
reasonable suspicion, then the charges are usually dismissed. Also, if the
defendant’s blood alcohol level is relatively low and the defendant’s drinking
pattern is amenable to a rising defense, then the case can be won at trial. And
sometimes there is just not enough evidence to prove beyond a reasonable doubt
that the defendant was actually driving the car.

But in most
DUI cases the facts and the law just don’t give rise to a dismissal or a
victory at trial. In these cases it is incumbent upon the defendant’s Mission Viejo DUI Attorney to negotiate a deal with the prosecutor whereby the
defendant pleads guilty to a charge in exchange for an agreed-upon sentence.
Sometimes the defendant’s dui attorney can get the charge reduced to a wet reckless or even a dry reckless but in most
cases the defendant must plead guilty to a DUI. In exchange for pleading guilty
and relieving the DA of the burden of a jury trial, which typically takes three
full days of court time, the DA is often inclined to offer somewhat favorable
terms. If the defendant’s Newport Beach DUI Lawyer is a good negotiator they can also
get excellent terms for a plea bargain deal.

It is common
belief, even among DUI Lawyer, that once a prosecutor offers a
plea deal they cannot retract the offer until the defendant either accepts or
reject it. This is consistent with basic contractual principals. Unfortunately,
it is not the case. In People v. Rhoden
(1999)75 Cal.Appp.4^th 1346, the court held that the prosecution can
withdraw a plea deal at any time before the defendant has entered a guilty plea
or the defendant has detrimentally relied on the plea deal. This means that
even if your DUI Attorney gets a great plea deal from the
prosecutor, the DA can withdraw the offer at any time before the defendant
actually pleads guilty in court.

If you’ve
been charged with a DUI in Orange County call The Law Offices of EJ Stopyro at
(949) 559-5500 for a free telephonic consultation with an experienced Orange County DUI Lawyer. You can visit our website at www.ejesquire.com. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675 and at
3901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

DUI License Suspension: DMV Hearings Can Be Won

Orange County DUI Lawyer              

       



When a
person is arrested for DUI in Orange County, or anywhere in California for that
matter, the officer will confiscate their driver’s license and give them a
temporary. The driver, or the driver’s Irvine DUI Lawyer, must then call the Driver Safety office of the DMV within
ten days of the arrest to request a DMV
hearing (APS hearing). If
neither the driver nor the driver’s DUI Attorney makes that call, the DMV will automatically suspend the
driver’s driving privileges. The length of the license
suspension will
depend on whether the driver has any prior DUI convictions and whether the
driver refused to take a blood test or breath test
as required by California Vehicle Code Section 23612.

If the
driver, or the driver’s DUI Attorney in Orange County does set a DMV hearing, then there
is a chance to avoid a license suspension. DUI hearings are, by all accounts,
very difficult to win. First of all, they are civil proceedings, not criminal,
so the driver is not entitled to a jury. A DMV hearing officer sits as both
prosecutor and judge. Also, the burden of proof that the DMV must meet is much
lower than in a criminal court. In court, the level of proof is proof beyond a
reasonable doubt—the highest burden in law. At the DMV the burden of proof is a
“preponderance” of the evidence. This means that the DMV must only prove that
it is more likely than not that all the elements are met before the DMV can
suspend the driver’s license.

However, one
way to prevail at the DMV hearing is for your Huntington Beach DUI Lawyer to find substantial errors in the DS367, which is the
mandatory report that an arresting officer must fill out and send to the DMV.
Typically, this form is the foundation of the DMV’s case against the driver
and, under relaxed civil rules, this form can be admitted into evidence even
though it is “hearsay” evidence. Such evidence is NOT admissible in criminal
court. The DMV relies on an exception in the evidence code, section 1280(c),
known as the Official Records Exception. Under this exception to the hearsay
rule, official records of an agency can be admitted into evidence if they are
trustworthy. In order to establish the trustworthiness of the DS367 the DMV
relies on Evidence Code Section 664, which says that it is presumed that an
official duty has been regularly performed. 
Thus, since an arresting officer has an official duty under Vehicle Code
Section 13380 to faithfully record the information of a DUI arrest on a DS367,
the DMV relies on the official duty presumption to presume that the DS367 is
reliable and thus admissible under the Official Records exception.

Complicated
right? Of course it is. Even some DUI Lawyers in Orange County don’t fully grasp the complexities
of this. But, the bottom line is, if your DUI LAWYER can find substantial
errors in the DS367, then the official duty presumption is rebutted. In that
case, it now becomes the burden of the DMV to prove that the information in the
DS367 is reliable before it can be admitted under the Official Records
exception. If they cannot, then they cannot rely on the hearsay document to make
their case against the driver. In that case, if the DMV has not subpoenaed the
officer to testify at the DMV hearing—as they almost never do—then the DMV
should grant a “set aside” whereby the suspension is set aside and the driving
privileges of the driver preserved. The driver still faces a possible
suspension however, if the driver pleads guilty to a DUI in court. However, if
the driver’s Orange County DUI Attorney can get the case reduced to a wet reckless, then the driver can avoid a
suspension entirely.

If you are
facing DUI charges call The Law
Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced DUI Lawyer in Orange County. You can also find us online 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.

Felony DUI: Several Way For Prosecutor To Charge DUI As A Felony

Orange County DUI Attorneys                                



When A DUI
is charged as a felony, the driver will be subject to up to three years in the
state prison and will suffer a felony conviction on his or her record. So, when
does a DUI become a felony, you may ask. Well, any experienced DUI Lawyer in Orange County knows there are several ways. The first occurs when a
driver has three prior DUI convictions within ten years of the current DUI
arrest. In that case, the new case can be charged as a felony or a misdemeanor,
at the discretion of the prosecutor. In Orange County a fourth DUI in ten years
is almost always charged as a felony. The second instance where a DUI can be
charged as a felony is where someone, other than the defendant, is injured as a
result of the DUI. In that case, Vehicle Code section 23153, the DUI again
becomes a “wobbler” and the DA can charge it as a felony or misdemeanor. Again,
as any experienced DUI Attorney in Orange County will tell you, a DUI
with injury is almost
always charged as a felony in Orange County.

Other, less
well-known ways to elevate a DUI to a felony, even for Irvine DUI Lawyers, come from Vehicle Code section 23550.5. That section
allows the DA to charge a DUI as a felony if the driver has suffered any felony
DUI conviction within the past ten years. So, for example, if Dan had a
fourth-offense DUI nine years ago that was charged as a felony, and that is the
only DUI on Dan’s record in the past ten years, then any new DUI can be
prosecuted as a felony. Likewise, under this section, if Dan only had one other
DUI in his lifetime that was charged as a felony, then any new DUI within ten
years of the felony conviction can be charged as a felony.

The most
obscure ways of elevating a DUI to a felony, known almost exclusively by DUI DA’s
and Mission Viejo DUI Lawyers, include the instance where a driver
has been convicted of vehicular manslaughter under section 192(c)(1) within the
past ten years. A DUI charge within ten years of that conviction, even though
it may be the first DUI charge of the defendant’s life, can be a felony DUI
charge. And finally, if a driver has EVER been convicted of gross vehicular
manslaughter under Vehicle Code sections 191.5 or 192.5, then ANY subsequent
DUI charge, no matter how long after the initial conviction of gross vehicular
manslaughter, can be charged as a felony.

If you are
facing charges for a DUI in Orange County, whether charged as a misdemeanor or
as a felony, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free
and confidential consultation with an experienced Newport Beach DUI Lawyer. 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
92675.

Receiving Stolen Property: What The DA Must Prove

Orange County
criminal defense lawyers

When property is stolen, perhaps through Petty
theft, Grand
theft, AUTO THEFT, or another form of theft, it is often sold or
given to another for one reason or another. Naturally, the person who stole the
property will be subject to criminal liability for the theft. But perhaps less
obvious, although well known to criminal
defense lawyers in Orange County, is that any person who receives stolen
property is also subject to criminal prosecution for either a misdemeanor or
felony charge. California Penal Code section 496 says that any person who buys
or receives any property that has been stolen or that has been obtained in any
manner constitution theft or extortion, knowing the property to be stolen or
obtained, is guilty of the offense of receiving stolen property.

Receiving stolen property is an extremely common crime in
Orange County. Prosecutors are not shy about bringing charges against anyone in
possession of stolen property. If the property’s value is below $950.00, the DA
has the option of charging the crime as a misdemeanor. In this instance, the defendant’s
theft defense lawyer will
lobby the prosecutor for a misdemeanor charge instead of a felony. Whether the
crime is charged as a misdemeanor or a felony, in order to convict a person of
the crime of receiving stolen property the DA must prove the following elements
by proof beyond a reasonable doubt:

1)     
That the property in question was stolen;

2)     
That the defendant bought, received, concealed,
withheld, or aided in receiving, concealing, or withholding it; and

3)     
That the defendant knew that the property was stolen
when he or she so acted.

I believe any Orange County theft lawyer would agree that the
element most often in contention is the element of knowledge. The DA must prove
that the defendant KNEW the property was stolen. However, if the defendant is
in possession of stolen property and offers no explanation of how the defendant
came to possess it, or no reasonable explanation, or where the explanation
raises suspicious circumstances, this will justify the inference by the jury
that the property was received with knowledge that the property was stolen.             People v. Myles (1975) 123 Cal.Rptr.
348.

Also, it is not necessary to show that the defendant
actually physically possessed the stolen property. It is enough to show that the
stolen property was concealed on the premises owned or controlled by the
defendant with the defendant’s knowledge and consent.

If you are facing charges for theft or for receiving stolen
property, call The Law Offices of EJ
Stopyro at (949) 559-5500 for a
free and confidential consultation with an experienced criminal defense lawyer in Orange
County. We have offices at 1901 Newport Blvd., Suite 350, Costa Mesa, CA
92627 and at 32072 Camino Capistrano, 2^nd floor, San Juan
Capistrano, CA 92675. You can also visit us online at www.ejesquire.com.

 

DUI Arrest: What Constitutes A Refusal To Test

It is common
knowledge that if you are arrested for DUI you MUST take some type of test to
determine your blood-alcohol level. In Orange County, only two tests are
available—blood or breath. A third alternative, urine, is available in other
jurisdictions. Any Orange County DUI Lawyer will tell you that the law requiring
you to submit to a blood test or breath test is called “implied consent” and is
found in section 23612 of the California Vehicle Code. Essentially, the law
says that as a condition of having the privilege to drive upon the highways,
you agree to take a test if you are arrested for DUI.

It is also
common knowledge that refusal to take the required chemical test
will have consequences, such as a much longer suspension time and possible jail
time. But what exactly constitutes a “refusal” is tricky and even some Orange County DUI Attorneys aren’t familiar with the fine
nuances of this area. But it is fair to say that the law is quite strict and
unforgiving on the driver who doesn’t immediately comply with the obligation to
test.

There are
really only two scenarios where case law (decisions of the courts) has held
that a driver’s refusal to take a blood or breath test after being arrested for
DUI does NOT constitute a refusal. The first is where the driver is confused
about his or her obligation to take a chemical test AND the confusion is caused
by the police officer. In the case of McDonnell
v. Department of Motor Vehicles, (1975) 45 Cal.App.3d 653, a driver was
arrested for DUI. The arresting officer read the driver his Miranda rights,
telling him he had the right to speak to an attorney. Then, immediately after
reading the driver these rights, the officer advised the driver of his
obligation to take a blood test or breath test.

The driver
said that he needed to talk to his DUI Lawyer first and refused to take any test without first consulting with
his DUI lawyer. The driver was arrested for DUI and was also charged with a
refusal. The driver appealed the DMV’s finding that he had “refused”. The court
agreed with the driver finding that the driver was confused about his
obligation to take a blood or breath test and that the confusion was caused by
the officer.

The second
scenario is where the driver sustains a concussion in an accident and is uncooperative
with the officers. In Hughey v.
Department of Motor Vehicles (1991) 235 Cal.App.3d. 752, the officer came
upon a driver who had been in an accident. When the officer smelled alcohol on
him, the officer arrested him. The driver became combative and several officers
were needed to subdue him. The driver refused to take any test and refused any
sort of cooperation. The driver’s DUI Attorney showed that although the driver was “conscious” and appeared
to be relatively uninjured, he had suffered a traumatic brain injury and could
not be held accountable for his actions.

In any other
instance where an officer arrests a driver for drunk driving, the driver must
agree to take a test or be charged with a refusal. As a rule, once the officer
advises the driver of the obligation to take the test, the officer need only
ask the driver ONE TIME to choose a breath or blood test. If the driver does or
says anything that can be construed as a refusal, the driver can then be
charged with a refusal. Even in cases where the driver changes his or her mind
and agrees to take the test, they can still be charged with a refusal.

If you have
been charged with a DUI call The Law Offices of EJ Stopyro at (949) 559-5500 today for a free and
confidential telephonic consultation with an experienced DUI Lawyer in Orange County. You can also visit us at www.EJEsqire.com. We have offices at 32702
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675, and
1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Marijuana DUI Law Killed In California

A recent bill proposed by Assemblyman Jim Frazier, AB 2500, would have made it illegal to drive with a small amount of the principal psychoactive constituent of marijuana, Delta-9-tetrahydrocannibinol or “THC”, in one’s bloodstream. The bill raised the ire of DUI lawyers and medical marijuana rights activists in California. Under the proposed law, anyone driving with 2 nanograms per milliliter (ng/ml) or more of this THC in their blood would be guilty of a DUI, regardless of their ability to drive or their level of impairment.

According to the Orange County Crime Lab, 2 ng/ml of THC is at the low end of what is even detectable in the blood. Moreover, in a recent DUI trial in which my client had the precise level of 2 ng/ml of THC in his blood (in combination with several other drugs), the forensic toxicologist testifying for the DA admitted that there is no scientific evidence whatsoever linking that low level of THC with any bad driving or impairment. In fact, the forensic toxicologist, testifying under oath, admitted that the controlled studies that have been conducted on marijuana use show that a low level of THC causes either no impairment to driving ability at all or a slight improvement to driving ability.   

The defeated bill also tried to set arbitrary limits for other drugs such as cocaine, amphetamine, methamphetamine, heroin, and morphine. It is well known, to DUI attorneys and prosecutors alike, that it is far more difficult to get a DUI conviction for drugs than it is for alcohol because of the per se limit of 0.08% in alcohol cases. Since drug DUI cases have no set limit, the prosecutor must prove that the driver was actually impaired by the drug so that the driver couldn’t drive with the same are and caution of a sober person. In alcohol cases, even if the driver was completely unimpaired, able to perform all the field sobriety tests perfectly, and exhibited no bad driving, they will still be convicted if their blood-alcohol limit is at or above a 0.08%.

Law Offices of EJ Stopyro, DUI Attorney in Orange County