DUI Arrest: Child In The Car Means Jail

DUI Attorney in Orange County

California
Penal Code Section 23572 mandates jail time for any person who is convicted of
a DUI and they were driving with a child under the age of
14 years old in the vehicle. The jail time is MANDATORY and an Orange County
judge MUST impose jail time even for a first-offense DUI. Even in cases where
there is no bad driving and the driver has a relatively low blood-alcohol
concentration, if the driver is convicted of the DUI, the enhancement must be
imposed. That’s why it is so important to consult with an Orange County DUI Lawyer if you are charged with this enhancement.

To prove the
enhancement the District Attorney need only show that there was a minor in the
car at the time of driving and that the minor was under 14-years old. So in
cases where the enhancement is charged Orange County DUI lawyers will attack the underlying charge of DUI. If your DUI Lawyer in Orange County can successfully attack the underlying DUI charge and
get it dismissed or reduced to a wet reckless, then the enhancement cannot be
applied. If the driver’s blood-alcohol is low enough, then your DUI Attorney can present a “rising” defense. This is a great way to
leverage a wet reckless deal.

The length of
jail time that must be imposed when the Vehicle Code Section 23572 enhancement
is charged depends on whether the driver has any prior DUIs within the previous
ten years. For a first-offense DUI—where the driver has no prior convictions
for DUI within the previous 10 years—the judge must impose 48 hours of actual
jail time. Moreover, Orange County DUI Attorneys will tell you that the enhancement
time is added on to any punishment that is imposed for the underlying DUI
conviction. If a driver has a prior DUI conviction within 10 years, then the
court must sentence the driver to an additional 10 days in the ORANGE COUNTYJAIL on top of the jail sentence that will be handed down for the underlying
DUI conviction. Where a driver has two priors within 10 years then the court
must sentence the driver to 30 days of additional jail time. Three priors
within 10 years will result in an additional 90 days in the Orange County jail.

There is
also a separate charge of child endangerment that the Orange County District
Attorney can file for having any minor in your car if you are driving drunk.
Penal Code Section 273a. This section makes it a crime to wilfully place a
minor in a position where their health or welfare are endangered. This separate
crime can be filed as a misdemeanor or a felony and applies to any minor under
the age of 18-years old. If it is filed as a misdemeanor it carries up to six
months in the Orange County jail. A felony conviction of child endangerment
carries up to six years in prison. Although the prosecutor retains the
discretion to file as either a felony or a misdemeanor, your criminal defense lawyer can petition the judge to reduce a felony filing to a misdemeanor.

If you face
charges for DUI, DUI drugs, or child endangerment, call The Law Offices of EJ
Stopyro at (949) 559-5500 for a free and confidential consultation with an
experienced criminal defense attorney. You can also visit our website at www.EJEsquire.com. Our main office is at
32072 Camino Capistrano, 2^nd floor, San Juan Capistrano, CA 92675,
but we have office locations throughout Orange County for client meetings.

DUI Attorneys in Orange County

DUI Arrest: Will I lose My License?

DUI Lawyer in Orange County

In most
cases of a first-offense DUI arrest, the biggest hardship to the person arrested
is the loss of their driver’s license. And one of the most common questions we DUI Lawyers in Orange County hear is whether there is a way to
avoid a license suspension. Unfortunately, in most cases, there
is no way to avoid losing your license.

First of
all, you, or your DUI Attorney, must request a  DMV hearing within ten days of the arrest. If no hearing is
requested, your license is history and there is virtually nothing that can be
done. But assuming that you do request the DMV hearing (called an “APS” hearing
for “Administrative Per Se”) you still have to win it in order to keep your
license. This can be very difficult because the DMV hearing is a civil
proceeding. This means that you are not entitled to a jury of 12 of your piers
to decide if the DMV has met its burden. Moreover, the DMV’s burden is much
lower than the criminal standard of proof-beyond-a-reasonable-doubt. In a civil
case the burden is a “preponderance” of the evidence. This is a much lower
standard and far less evidence is required to reach it. And, at the DMV, the
DMV employee gets to sit as both prosecutor and judge. Doesn’t sound very fair,
does it?

Lets assume
that you and your Orange County DUI Lawyer do prevail at the DMV hearing. Well,
that’s still not the end of it. Because if you plead guilty to a DUI in court,
or are found guilty of DUI at a trial, then the court must immediately report
the conviction to the DMV. Once the DMV is notified of the conviction, the DMV
is commanded by the California Vehicle Code to issue a conviction suspension.
This is a six-month suspension for a first-offense DUI and a two-year
suspension if you have any prior convictions for drunk driving or wet reckless.

So, in a DUI
case, the only way to keep your license is to prevail at the DMV and in the
Orange County Superior Court. If you’ve been arrested for DUI, DUI drugs or DUI with injury and would like to consult with an
experienced DUI Lawyer call The Law Offices of EJ Stopyro at (949) 559-5500. Our main office is located at 32072 Camino
Capistrano, 2^nd floor, San Juan Capistrano, CA 92675. However, we
have meeting offices throughout the county. You can also visit our website at www.EJEsquire.com.

criminal
defense lawyers in Orange County                                               

                                                   

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