DUI Arrest: When Must The DA File The Complaint?

In Orange
County, when a person is arrested for DUI/DUI drugs, the driver is typically taken to
the Orange County jail, booked, and released. For most first offense DUI
arrests where there was no accident and no injury, the driver is released
without bail and on the driver’s written promise to appear. The citation issued
by the police officer, deputy sheriff or highway patrol officer will contain
the name and address of the court where the driver, or the driver’s Orange County DUI Lawyer, must appear as well as the date and time when they
must appear.

Penal code section
853.6 requires that when a person who is arrested for DUI is released on a
promise to appear, the District Attorney must file a “Complaint” in the court
within 25 days or the case will be dismissed. A Complaint is the official document
prepared by the DA that lists the laws that the DA alleges the defendant
violated. The Complaint is the document that begins court proceedings in the case.
At the first court appearance, called the arraignment, the court reads the
Complaint to the defendant or their Anaheim DUI lawyer. The defendant, or their
DUI attorney, will then enter a plea and set future court dates, usually for a
pretrial conference.

Although
Penal code section 853.6 requires the complaint to be filed within 25 days of a
cite-and-release DUI arrest, it is typical in the Orange County courts,
especially the West Justice Center and the Harbor Justice Center, that the Complaint
is not filed for several months after a cite-and-release DUI arrest. In fact, I’ve
handled cases where no DUI complaint was not filed until nine months after the
DUI arrest. This delay is universally experienced by dui lawyers in Orange
County.

So how can the
DA get away with this long delay when filing a Complaint in a DUI case? Well,
after several Irvine DUI lawyers challenged the delayed filing of a Complaint
in a cite-and-release DUI case, the California Court of Appeal addressed the issue.
The Appellate court looked closely at the statute and found that the original
version of the cite-and-released provisions of section 853.6 did not contain
the 25-day rule. This original version was adopted into the Vehicle Code by the
legislature in 1970. The subsequent amendments to Penal Code section 853.6
which contained the 25-day rule were never adopted into the Vehicle Code and
therefore don’t apply to vehicle code violations such as DUI, DUI drugs, and
DUI with injury.

However, the
court said that the original language of the cite-and-release statute did
require that the Complaint be filed “as soon as practicable”. But this is very
broad and it is hard to determine what constitutes “as soon as practicable”. In
fact, a Newport Beach DUI attorney presently has filed a case dealing with this
issue and more guidance should be handed down soon on what “as soon as
practicable” means.

If you have
questions about a DUI arrest, call The Law Offices of EJ Stopyro at (949)
559-5500 for a free and confidential consultation with an experienced Orange County DUI Attorney. You can visit 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.

DUI: Alcohol Monitoring Bracelet Can Keep You Out Of Jail

DUI defense Lawyers know that the underlying cause of
many, if not most, repeat DUI offenses is an addiction to alcohol. Conventional
wisdom relies on ever increasing jail sentences as a deterrent to drunk
driving. But this deterrent effect just isn’t working when it comes to
alcoholism. The more reasoned approach is to face the problem of alcohol
addiction head on.

This is the
idea behind an ankle bracelet that actually detects the presence of alcohol in
a person’s perspiration. The technology, known as secure continuous remote
alcohol monitoring or “SCRAM” is being used more and more in the court system
to deal with the problem of repeat DUI offenders. The device is a little bigger
than a pager and is installed by any of several SCRAM dealers throughout Orange
County and California. Your DUI defense attorney should have a list of
providers. SCRAM samples the perspiration of the person who wears it about one
time every 30 minutes. It analyzes the sample to determine the presence of
alcohol and transmits the data to a data center. The data is then compiled into
a report and is sent to the court.

The ankle
bracelet is also equipped with technology to determine if it is being tampered
with. Any attempt to remove or disable the SCRAM device will also be
transmitted to the data center. When wearing the SCRAM device it is important
that the wearer not use any products that contain alcohol, such as mouthwash or
cologne. The device can be washed with soap and water only. The SCRAM device
can also come with GPS technology if home confinement is also ordered by the court.

The cost of
SCRAM usually includes an installation fee of around $100.00 plus a fee between
12 and 15 dollars per day. In some cases, DUI attorneys prefer to have their
clients start the SCRAM even before the first court appearance. This shows the judge
that the client acknowledges his or her alcohol problem and has taken the
initiative to do something about it. Moreover, when the client’s DUI lawyer presents
the court with a report of continuous sobriety of the client, judges may be more
likely to let the client continue on with the SCRAM rather than serve jail
time. The strategy that DUI defense attorneys use will vary from case to case,
and even from courthouse to courthouse.

If you would
like to learn more about alternatives to jail in a DUI case, call The Law
Offices of EJ Stopyro at (949) 559-5500 for a free and confidential
consultation with an experienced Orange County DUI defense lawyer. We have
offices at 32072 Camino Capistrano, 2^nd floor, San Juan Capistrano,
CA and at 1901 Newport Blvd., Suite 350, Costa Mesa, CA 92627.

Domestic Violence Conviction: Mandatory Terms of Probation

Domestic
Violence Lawyers in Orange County

In California, a defendant who is convicted of a domestic
violence crime, such as Child
Endangerment, Domestic Battery, Criminal Threats,
or Corporal
Injury, will be subject to mandatory terms of probation, if they are given probation
by the court. A conviction occurs when the defendant either pleads guilty to a
domestic violence offense or they are found guilty by a jury. In most cases,
the defendant’s Irvine
Domestic Violence Lawyer works out a deal with the District Attorney
whereby the defendant is given probation instead of being sentenced to the
maximum jail or prison time allowed by statute.

While on probation, a domestic violence defendant must
comply with all the terms of probation or risk being sentenced to jail or prison.
Some terms of probation MUST be imposed while others are discretionary. Penal
Code Section 1203.097 mandates that when a defendant is convicted of domestic
violence, the following terms MUST be made part of the defendant’s probation:

 

1)     
The defendant must be on probation for at least three
years;

2)     
The defendant must comply with a “Protective Order”,
directing the defendant to have no violent contact with the victim;

3)     
The victim must be served with notice of the terms of
any deal;

4)     
If the defendant hasn’t already been “booked’, they
must do so within one week of the sentence;

5)     
A minimum $500.00 fee;

6)     
The defendant must attend and successfully complete a
Batterer’s Treatment program of at least one year in length, with at least two
hours of class per week. The defendant MUST attend every week with only three
excused absences allowed all year. Moreover, a progress review is made in court
every three months. If the defendant does not make progress in the program, isn’t
benefitting from it, or commits new criminal conduct, the defendant can be
brought before the judge and sentenced to jail or prison. The program is at the
defendant’s expense but cost is on a sliding scale based on the defendant’s ability
to pay;

7)     
The defendant MUST perform community service. The
length and type are to be determined by the court; and

8)     
If the court determines that the defendant needs drug
or alcohol treatment, the court will also order that as a term of probation and
at the defendant’s expense.

 These terms of probation are mandatory for any conviction of
a domestic violence offense. The defendant’s Mission Viejo
Domestic Violence Lawyer cannot bargain to have these terms removed. The
only way to avoid them is to persuade the DA to change the charged offense to a
non-domestic violence charge.

 

If you face charges for domestic violence, call The Law
Offices of EJ Stopyro today at (949) 559-5500 for a free and confidential
consultation with an experienced Orange County Domestic Violence Attorney. We have offices at 32072
Camino Capistrano, 2^nd floor, San Juan Capistrano, CA and at 1901
Newport Blvd., Suite 350, Costa Mesa, CA 92627. You can also visit us online at
www.ejesquire.com.

DUI Arrest: No Charges Means “No Arrest”

Orange County DUI Lawyer





DUI enforcement has become a major concern for many
police departments and law enforcement agencies across the nation. In Orange
County, police departments as well as the Orange County Sheriff’s Department
and the CHP, routinely put “DUI saturation patrols” and use DUI checkpoints on
weekends and holidays. Moreover, police officers are motivated to remove drunk
drivers and even potential drunk drivers from the road. Now, we can all
understand removing actual drunk drivers from the road. But what’s this about “potential”
drunk drivers? Well, a potential drunk driver is someone who may or may not be
impaired by drugs, alcohol, or both such that they cant drive safely. These
drivers COULD be guilty of DUI but they might also NOT be guilty of DUI.

Police and
law enforcement officers are trained to detect drunk drivers by looking for
specific patterns, behaviors, and physical and mental symptoms of the driver.
Driving behaviors such as straddling lane markings, making wide turns, driving
too slowly, braking or signaling inappropriately, driving with headlights off,
weaving, inconsistent speed, and others are specifically mentioned by The
National Highway Traffic Safety Administration (NHTSA) in their police training
manuals as being correlated to impaired or drunk driving. DUI Attorneys in Orange County will often create a defense on the
fact that these behaviors were NOT seen by the arresting officer.

NHTSA
material is extensively relied upon by law enforcement training in Orange
County. This NHTSA material instructs officers on how to perform specific field
sobriety tests and to look for specific behavior from a driver during a DUI
investigation. Officers are told to attempt to detect the odor of alcohol
coming from inside the car or from the driver. They are also told to see if the
driver fumbles with their wallet or purse when retrieving their license and
registration. Speech is also important; cops are told to listen for a slur,
slowness, clarity, etc. Also, they are told to see if the eyes are red or watery.

If a cop
conducts a DUI investigation and is still UNSURE as to whether the driver may
be impaired after the investigation, then this driver is a “potential” drunk
driver. If the officer doesn’t have a portable breath teat to ask the driver to
voluntarily take, then the officer will be unsure of what the person’s
blood-alcohol level is. When faced with this situation, many officers will
arrest the driver, just to be on the safe side. If the driver’s blood or breath
test at the station reveals a low blood alcohol level, then it is likely that
the District Attorney will not file charges in the case. But what about the
arrest? Will the arrest still be on the driver’s record? Well, any DUI Lawyer in Orange County will tell you that the arrest should be changed to a “detention”
on all official records.

California
Penal Code Section 851.6(b) says that when a driver is arrested for DUI, but
the prosecutor doesn’t file charges against the driver, then the driver shall
be issued a certificate by the law enforcement agency that arrested them, describing
the action as a “detention” and NOT an arrest. Moreover, the law says that “any
reference to the action as an arrest shall be deleted from the records of the arresting
agency and of the Bureau of Criminal Identification and Investigation of the Department
of Justice.” However, even though the law mandates this, it is not always
carried out automatically. If you have been arrested for DUI and no charges
were filed, you or your DUI Attorney should send a letter to the
arresting agency telling them that no charges were filed in the case. This is
usually enough to ensure that the law is complied with.

For any
questions concerning DUI charges in Orange County call The Law Offices of EJ
Stopyro at (949) 559-5500 or visit us at www.ejesquire.com.
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.

Plea Bargain: The Judge Has The Final Say

Orange County DUI Attorneys



When someone
is arrested for DUI in Orange County, the police officer completes an
arrest report and forwards the report to the Orange County District Attorney’s
Office. The report is eventually read by a deputy district attorney who then
decides what charges to file. Sometimes the deputy DA decides not to file any
charges if there are problems with the case. Sometimes, the defendant’s Orange County DUI Lawyer will call the deputy DA and try to persuade them NOT
to file charges. If the DA decides to file DUI charges, the DA will draft a “Complaint”,
which is an official document listing the charges against the defendant. The deputy
DA will then file the Complaint with the court.

The
arraignment is the first court appearance and at the arraignment the judge will
read the charges to the defendant and/or the defendant’s Anaheim DUI Lawyer. The judge will also review bail and decide whether bail is
sufficient in the case. Often times, in Orange County at least, for a
first-offense DUI, the judge will allow the defendant to remain out of custody
on his or her own recognizance.

After the
arraignment, there will most likely be several “pretrial conferences”. These
are sometimes called settlement conferences and, as the name implies, these
conferences are for the DA and the defendant’s Orange DUI Lawyer to discuss the strengths and weaknesses of the case and see
if they can arrive at an agreement to settle the case without going to trial.
This agreement is referred to as a plea bargain; if defendant pleads to a
particular charge then the DA will offer specific terms that are acceptable to
the defendant and his or her Santa Ana DUI Lawyer.

Once this
plea bargain has been reached, there is only one more thing that must be done.
The plea bargain must be presented to the judge presiding in the court. The
judge may reject a plea “in exercise of sound judicial discretion.” Santobello v. New York (1971) 404 U.S.
257. So if the judge doesn’t like the deal, perhaps because he or she thinks
the defendant is getting off “too lightly”, then the judge can reject the deal,
in which case the DA and the defendant’s DUI Huntington Beach DUI Lawyer go back to square one.

If you are
charged with a DUI in the Orange County courts, call The Law Offices of EJ Stopyro at (949) 559-5500 to consult with an experienced Orange County DUI
lawyer. You can also visit our website at www.ejesquire.com
for more information about how to fight a DUI charge. 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.

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.