DUI Arrest: Can The Judge Read The Police Report?

When a
motorist is arrested for drunk driving in Orange County, the arresting officer
will fill out a police report explaining why the officer stopped the motorist—perhaps
for a traffic violation or at a DUI checkpoint—and the details of what happened
after the stop. The DUI report gives a detailed description of the driver’s
appearance, including whether the driver smelled of alcohol, had red and watery
eyes, had any slurred speech, and had any difficulty with balance or
coordination. The report also explains how the defendant did on each of the
field sobriety tests that the driver took—if they did agree to take the
voluntary tests. The officer will also write down what the readings were on any
breath test the defendant took and whether the defendant elected to take a
blood test, breath test, or refused to take any test.

This police
report is the cornerstone of the prosecution’s case against any defendant in a
DUI case and is usually the starting point for the defendant’s Orange County
DUI defense lawyer. Both the DA and the defendant’s DUI attorney will comb the
report for any details that help them. Usually, since the reports are written
by police officers after an arrest to justify the DUI arrest, the reports are
highly unfavorable to the arrestee.

Having been
an Orange County DUI Attorney for many years, I’ve noticed that my
clients are often very agitated by their belief that the judge will read the
police report and instantly be biased against them. However, in my experience,
Orange County judges almost NEVER read the police report in a DUI arrest. Nor
do judges look at the defendant’s record of prior arrests. The reason for this
is simple; any judge who looks at the police report in a DUI case, or any
criminal case for that matter, MUST be disqualified from sitting as the trial
judge or as the preliminary hearing judge in the case. Section 1204.5 of the
California Penal Code specifically states that no trial or preliminary hearing judge
shall “read or consider any written report of any law enforcement officer or
witness of any offense any information reflecting the arrest or conviction
record of a defendant, or any affidavit of representation of any kind verbal or
written, without the defendant’s consent given in open court,…”.

Thus, the
only way a trial or preliminary hearing judge can read the police report or the
defendant’s arrest record, is if the defendant allows the judge to do it. For
this reason, almost no judges in Orange County will read the report in a DUI
case. However, as the statute says, the defendant MAY allow the judge to read
it. Sometimes, when some fact or facts in the report are actually favorable to
the client, their DUI lawyer will ask the judge to read some or all of the
report. Moreover, if the judge is not going to be the trial or prelim judge,
then the judge may read the DUI arrest report without the clients consent.
However, because DUI judges are so busy, this rarely happens.

If you have
questions regarding a DUI arrest, call The Law Offices of EJ Stopyro today at
(949) 559-5500 for a free and confidential consultation with an experienced Orange
County DUI defense attorney. 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 1901 Newport Blvd., Suite 350, Costa
Mesa, CA 92627.

DUI Arrest And The “O.R.” Release

When a
person is arrested for DUI in California and the DUI did NOT involve injury to
anyone other than the arrested driver, the driver may be released from jail on
his or her own recognizance. The law does not require that bail be set. Penal
code section 853.6 specifically provides for an O.R. release in the case of a
DUI. However, any Orange County DUI defense lawyer will tell you that just because a
DUI defendant can be released on their own recognizance doesn’t mean that they
will be.

If a court makes
a determination that an O.R. release will compromise public safety or will not
reasonably assure defendant’s appearance, then the court will set bail in the
case. It is up to the defendant’s Orange County DUI defense attorney to convince the judge that the
defendant is neither a flight risk nor a danger to the community. Where a court
makes such a finding the typical bail is around ten thousand dollars. This
means that the defendant can put up the money, if they have it, or they can
hire a bail bondsman to put it up for them. A bondsman will typically charge
around ten percent of the bail to put it up. So, if the bail is set at ten
thousand dollars, the defendant will have to pay the bondsman one thousand
dollars to put up the ten. When the case is over the bondsman gets the ten
thousand back but the defendant gets nothing.

In the case
of In Re York (1995) 9 Cal.4^th
1133, the California Supreme Court held that a trial court has broad discretion
to condition an O.R. release on “reasonable conditions related to the furtherance
of public safety.” So, for example, many Orange County judges will allow a DUI
defendant to remain out of custody as long as they attend an AA meeting every
day or perhaps every other day. If the defendant has prior DUIs and is now
facing a second-offense or third-offense DUI it can be very difficult to get an
O.R. release. One tool that is very helpful for DUI lawyers in Orange County is
the use of an ankle bracelet that alerts a call center if the defendant has any
alcohol in their system. This technology, known as Secure Continuous Remote
Alcohol Monitoring or SCRAM, monitors the defendant 24-hours a day and, through
periodic testing of the defendant’s perspiration, tests for alcohol. If alcohol
is detected this is transmitted to a control center who reports it to the
court. A DUI attorney representing a client on a second or third offense DUI may
need to have their client wear the SCRAM in order to convince a judge to let their
client remain out of custody during their DUI case.

The
conditions that a judge sets in order for a DUI defendant to remain out of
custody on an O.R. release are not limitless. They must be reasonably related
to public safety or assuring that defendant show up. For example, the U.S.
Ninth Circuit held in U.S. v. Scott
(2005) 424 F.3d 888, that a judge cannot put a search and seizure condition on
an or release in a DUI case. A search and seizure condition means that the
police can search the defendant, the defendant’s home or the defendant’s
automobile at any time of day or night without a warrant and without the
defendant’s criminal defense attorney present. The Ninth Circuit struck this
condition down as improper since it did not protect public safety.

If you’ve
been arrested for DUI call The Law Offices Of EJ Stopyro at (949) 559-5500
today for a free and confidential consultation with an experienced DUI defense
attorney. You can also visit our website 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.

Domestic Violence Trial: Prior Domestic Violence Acts Are Admissible

When someone is arrested for Domestic Violence
in Orange County, they are usually booked into the Orange County Jail. From
there, they are either released on their own recognizance or released upon
posting of bail or bond. Those defendants who must post bail but cannot afford
it must remain in custody during the litigation of their domestic violence
case. If they cannot afford to hire their own domestic violence defense lawyer then the court will appoint a
public defender.

At the arraignment in the Orange County Superior Court, the
defendant and his or her domestic violence defense attorney will enter a plea,
which is usually “not guilty”. At a series of pretrial conferences that follow,
the defendant’s domestic
violence attorney will attempt to have the case dismissed or,
alternatively, to settle the case with the DA. If the case doesn’t settle and
is not dismissed, then it is set for trial.

Domestic violence trials are like most other criminal
trials. Almost all of the rules of evidence and procedure are the same as any
other trial. But one important exception comes from Evidence Code Section 1109,
which deals with character evidence. You see, in most cases, evidence of a
defendant’s character is inadmissible. For example, in a DUI trial, the DA cannot
present evidence that the defendant has prior DUI convictions in order to prove
that the defendant was driving drunk on this occasion. Nor can the DA introduce
evidence that the defendant has a reputation for driving drunk to prove that he
or she did so on this occasion. If such evidence were attempted to be
introduced, the defendant’s DUI lawyer would quickly object to this
inadmissible “character evidence” and the judge would sustain the objection.

But Evidence Code Section 1109 actually says that in cases
of domestic violence, the usual rules that exclude character evidence don’t apply.
Thus, when a defendant is on trial for domestic violence, the DA can present
evidence to the jury that the defendant has committed prior acts of domestic
violence committed within the past ten years. The defendant’s domestic violence
attorney cannot successfully object on grounds of character evidence. Moreover,
the DA can put on witnesses who will testify that they know defendant and that
the defendant has a reputation for committing domestic violence.

If you have questions regarding domestic violence charges in
Orange County, call The Law Offices of EJ Stopyro at (949) 559-5500 for a free
and confidential consultation with an experienced Orange County domestic
violence defense attorney. You can also 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 92675.

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.