DUI Charges and DMV Hearings

When you are facing charges after a DUI arrest, you first need to worry about the DMV hearing. At the DMV hearing, a hearing officer determines whether you can keep your driver's license, even before you are convicted of DUI. In fact, you could lose your license at the hearing, and later be acquitted of the DUI.

At a DMV hearing, the hearing officer will hear testimony from the officer who arrested you to determine whether you should lose your license, based on his or her determination of whether there was evidence that you were driving under the influence. This is a critical stage in a DUI case and one that many overlook.

Once you have been arrested for driving under the influence, you only have a limited time to request a hearing. Many people do not read the small print in their citation, and miss the deadline. If you do not request a hearing, your license may be suspended without you ever getting a chance to challenge the grounds for the suspension.

Hiring a lawyer to assist you with the DMV hearing is an important first step in your defense. Not only can the attorney ensure you don't miss your deadline, and that you get your hearing, the lawyer can also cross examine the officer, and get a feeling for what his testimony would be if your case went to trial. Because county attorneys and district attorneys do not attend these hearings, this gives your attorney an advantage at your DUI trial, and further allows your lawyer to impeach the officer with any testimony that is inconsistent from the hearing.

Another important reason to request a hearing is that it is your best opportunity to keep your drivers license pending the outcome of your DUI case. The DMV hearing officer is the one who subpoenas the officer. If the officer is busy and doesn't show up, then the hearing officer will rule in your favor, and you get to keep your license pending the outcome of your DUI case.

Dealing With An Unfavorable DMV Decision

The decision after a DMV hearing following a DUI arrest can be either a set aside or an uphold of the suspension.  When the decision is unfavorable to the driver the next step can be either to appeal the finding or move on.  For first offenders who took a test the suspension period of four months typically does not justify a decision to appeal the hearing officer's decision.  The driver can usually get a restricted license after waiting 30 days.  Foe second offenders an appeal may be more tenable given the one year
 re-issue date.  In either event the decision must be one that takes into account the costs and benefits of the entire situation.  The alternative to a full scale appeal can be something called a Departmental Review, more information about this approach will be discussed in a future post.

How a Person's Core Body Temperature Can Skew Breath Test Results

Breath testing in DUI cases relies on the presumption that every subject has a "normal" body temperature.  But what if a subject has a fever? One study (Fox & Hayward, 1989) did reveal problems with DUI breath tests for those with higher than normal body temperature levels.  For example, when the core temp was elevated one degree Celsius, the corresponding breath test for alcohol increased by nearly 9 percent. This means that if a person had an elevated body temp and was stopped for drunk driving, his breath test would falsely inflate his true blood alcohol level by almost 10%.  For a .10 level, this would drop him to a .09 and if he blew a .08, his true BAC would actually be .07.

 For more information on this issue, contact DUI Attorney Matthew Ruff who practices in the state of California.

A Bakersfield Speeding Ticket Attorney Explains Trials by Written Declaration

In California, as in many states, a defendant may elect to have a trial by written declaration on any Vehicle Code infraction or speeding ticket. If the clerk  receives from the defendant a written request for a trial by written declaration on or before the appearance date indicated on the notice to appear, the clerk must, within 15 calendar days of receiving the request,extend the appearance date 25 calendar days, and must give or mail the defendant notice of the extended due date on a Request for Trial by Written Declaration with a copy of the Instructions to Defendant and any other required forms. The defendant must file the Request for Trial by Written Declaration with the clerk on or before the appearance date indicated on the notice to appear (or any extended appearance date). This form must be filed in addition to the defendant’s written request for a trial by written declaration, unless that request was made on this form. A defendant who makes this election must submit bail in the amount established in the Uniform Traffic Bail and Penalty Schedule under Veh C§40310 at the time of submitting the declaration.  If the defendant is found not guilty or the charges are otherwise dismissed, the amount of the bail mustbe promptly refunded to the defendant.

On receiving the defendant’s Request for Trial by Written Declaration and bail by the due date, the clerk must deliver or mail to the arresting officer’s agency a Notice and Instructions to Arresting Officer and Officer’s Declaration, with a copy of the notice to appear and a specified return date for receiving the officer’s declaration. On receipt of the officer’s declaration or the close of the return date, the clerk must submit the case file to the court for decision with all declarations and other evidence received.  According to one Bakersfield Speeding Ticket Attorney, testimony and other relevant evidence may be introduced in the form of the notice to appear, a business record or receipt, and the sworn declarations of the arresting officer and of the defendant. After the court decides the case and returns the file and decision, the clerk must immediately mail the Decision and Notice of Decision to the defendant and arresting agency. The defendant may request a trial de novo by filing a Request for New Trial Form within 20 calendar days after the date on which the decision was mailed. The Court clerk must set a trial date within 45 calendar days of receipt of the defendant’s request and deliver or mail to the defendant and to the arresting officer’s agency the Order and Notice to the violator.

The case is closed if the defendant fails to make a timely request for a trial de novo. Although the rules state that a new trial must be set within 45 days of the receipt of the request, the remedy for failure to set within 45 days is not automatic dismissal. For example in one case, a trial was set 57 days after receipt of notice. The court may deny a trial by written declaration to a defendant who does not file a Request for Trial by Written Declaration or deposit bail with the clerk within the specified time limits.  The Judge is not limited to imposing a monetary penalty in the amount of the bail the defendant has deposited with the clerk, unless this amount is the maximum and the only lawful penalty. A person who fails to appear as provided by law may be deemed to have elected to have a trial by written declaration on any alleged Vehicle Code infraction. Relevant evidence may be introduced in the form of a notice to appear, a business record or receipt, a sworn declaration of the arresting officer, or a written statement or letter signed by the defendant. 

Bruce Blythe is a Bakersfield Speeding Ticket Lawyer who practices throughout Kern County and beyond for all criminal, DUI and traffic cases.

Hematocrit Defense in DUI Cases

 Hematocrit represents the fraction of whole blood composed of red blood cells and is correlated with the aqueous content of the blood.  The higher the hematocrit, the lower the concentration of water in the blood and vice versa, according to California DUI Attorney Matthew Ruff.  How does this issue play into a DUI case you may ask?  Put simply, the higher a hematocrit level, the higher a person's blood alcohol concentration.  With breath tests, the normal variation in the hematocrits of test subjects "can produce errors in ...results in the 10-14% range", according to some scientific studies.  When facing a DUI charge, it may be useful to have a test done to determine if this may be an issue. The hematocrit issue can vary the amount of alcohol present in the blood and not all humans are the same.  The breath machines do not factor in this variability.

What is the penalty for a refusal in California?

There are a number of penalties or consequences for DUI charges in California.  Perhaps the most severe of all penalties is that for a refusal to take a chemical test, breath or blood.  In addition to the Court consequences, the DMV will impose harsh sanctions if the driver is found to have refused a breath or blood test after having been arrested for drunk driving

The following are the administrative penalties for a DUI refusal

1. A First refusal within 10 years carries a one year drivers license suspension
2. A second refusal after a DUI conviction, wet reckless or admin per se suspension within 10 years is a 2 year license revocation.
3. A third refusal within 10 years is a 3 year revocation of your driving privilege.

In light of the very severe refusal penalties in California, it is advisable to seek legal representation for any refusal case.

The Dream Act, Reward for iIlegal Conduct?

The government lawmakers this week shot down the "dream act"  effectively denying young children of illegal immigrants the opportunity to become citizens and finally be a part of the United States as legal citizens.  Many believe this act was a reward to those that entered the US illegally, others say it rewards those who had no say in where they grew up and did the right thing by going to school and staying out of criminal trouble.  Time will tell which side eventually prevails.

Ticket Myths

There are few things that evoke more fear or loathing than getting stopped and ticketed by a law enforcement officer.  The legal process that follows can be quite daunting from the standpoint of mounting a defense or dealing with the problem.  One Lamont Speeding Ticket Attorney has assembled a list of common myths and half truths related to traffic tickets, it's worth taking a look at.

DUI While Parked

Penal Laws in the state of California define DUI as driving at a time when your mental or physical faculties are impaired to such a degree that you cannot operate a motor vehicle with the caution characteristic of a sober person. The interrogatory is frequently asked if a person can be arrested and charged with a DUI while they are parked in their driveway. The answer to this question depends on whether the police can establish actual driving. Obviously,  the law does not require that the police officer actually see the person driving, this element can be proven using circumstantial evidence. So, if the governmental officer sees the person pull into his own driveway and he is under the influence, game over. Further, if another witness sees the driving, same conclusion. Also, if evidence can be obtained to infer recent driving, IE. warm engine, admissions to recent drinking at the bar prior to arriving home, slumped over wheel while engine running, etc, all can be used to come to a rational conclusion that the person was driving. If other evidence, FST's breath tests and other evidence established that the person was impaired at the time of driving, a DUI case can be established.

DUI Law in the New Millennium

It is indeed axiomatic that as civilizations evolve there is a corresponding increase in new laws and regulations designed to conform the society to a given paradigm.  Criminal laws are no different.  In our current civil structure we have experienced this upward pressure particularly in the category of rules governing the use of motor vehicles, aka automobiles.  It is evident that the legislative bodies have concluded we are unable to think for ourselves and conform our behavior to basic common sense.  A good example of this is the criminalization of the use of cellular phones while driving and the use of active restraints such as seat belts.  DUI laws are also on the agenda and we will see an increase in legislative interaction into how we govern those that use alcohol and drive.

Another Good Reason Not to Take a PAS Test

We know that California law allows motorists over 21 and not on probation to refuse a roadside breath test known as a PAS.  The test however is usually a bad idea inasmuch as it provides additional evidence of intoxication relating to DUI that can be used against you in Court.  A recent case reiterates another good reason to refuse taking the test.

Defendant Thomas was stopped for traffic violations. His eyes were bloodshot and watery. Defendant performed sobriety tests and consented to a PAS breath test that required him to place his mouth over the plastic tip of the PAS device and blow into it. Defendant was let go after passing all tests, but instead of discarding the mouthpiece of the PAS device, the police preserved it for DNA testing. The DNA profile derived from the mouthpiece linked defendant to two burglaries. A DNA sample obtained after defendant’s arrest matched genetic material recovered from five of the burglaries. Additional evidence implicating defendant in the burglaries was found when police searched his home pursuant to a warrant after his arrest.

Defendant appealed his convictions of the crimes arguing that testing the mouthpiece of the PAS device for DNA was a search that could not be conducted without a warrant under the Fourth Amendment to the United States Constitution. The appellate court however disagreed holding that the DNA test was not a search because defendant abandoned any privacy right he had in the saliva he deposited on the police device.  The Court ruled that the Fourth Amendment protects against unreasonable governmental searches and seizures. A search occurs only when a government activity intrudes on an individual’s reasonable expectation of privacy, measured by the individual’s subjective expectation of privacy in the item searched and society’s objective recognition of the reasonableness of the individual’s subjective expectation of privacy.  People of California vs. Thomas.

"Over the Influence" commercials send the right message to our youth

Recently, I have seen the new television commercials that espouse abstinence from alcohol and drugs, targeted mainly to young people. These messages need to be played more frequently to buffer then constant onslaught of ads that encourage getting drunk and being under the influence, great work whoever put these together.

Why Hire a DUI Lawyer?

A DUI arrest is a serious charge which could result in the loss of your driver's license, thousands of dollars in court fines, the loss of your job, time in jail or even prison. A DUI conviction also acts as a prior, meaning that if you get a second or third DUI conviction, the penalties are drastically worse.

Despite these serious consequences, I am surprised on how many people try to represent themselves in court to save the costs of attorney's fees. In so doing, they often miss the deadlines to request a DMV driver's license hearing, lose their license, and then get the standard DUI punishment, even when a reduced punishment could have been negotiated.

If you are arrested for a DUI, you need a lawyer! A lawyer will help you schedule a timely DMV hearing which could help you keep your license. If a charge is filed against you in court, your lawyer's knowledge of the law could help you get your case dismissed, even if there is sufficient evidence for a conviction. For example, if the evidence in your case was obtained illegally, a lawyer can get it suppressed, which will usually result in the case being dismissed. Only someone well versed in the law, however, could recognize those types of errors.

In some cases, a lawyer is able to negotiate the DUI to a lesser offense that can save your license and have reduced penalties. If your case goes to trial, a lawyer can cross examine the prosecution's police and expert witnesses and point out limitations on the evidence.

I have been able to help my clients avoid the consequences of DUI, even when their cases seemed initially hopeless. For example, I had a client who refused to take an alcohol test at the police station. Normally, such a refusal results in the automatic suspension of a driver's license for an extensive period of time. I represented her at the DMV hearing, and she was able to keep her driver's license.

In court, I had a client who had multiple prior DUI's, and was looking at harsh penalties on the new DUI I was representing him on. Due to mistakes made by the police, however, I was able to get the entire case dismissed.

If you have been arrested for DUI, you need a lawyer as quickly as possible.

DUI Lawyer/ Hire a DUI Lawyer

Correlation Between DUI and Domestic Violence?

Many social scientists believe that domestic violence goes hand in hand with alcohol consumption and as the economy gets worse alcohol abuse is on the rise. DUI comes into play, according to one Long Beach Domestic Violence Attorney, when the misuse of alcohol becomes intertwined with Domestic Violence. As the situation escalates, often the abuser will find him or herself pushing the limits of societal norms and find themselves drinking and driving which may lead to DUI. The studies are awaiting peer review on this one, stay tuned.

The Right to an Independent Test in California

All states require a suspect in a drunk driving case to submit to a chemical test, breath blood or urine. In California if the arrestee chooses a breath test he also has the right to a second independent test of blood or urine in order to save a sample for retesting if he chooses. the test will be at the person's expense and is only permitted when breath is the first test. the rationale is that the breath cannot be saved and therefore if a sample is desired for retesting then a bllod or urine can be requested.

What is Retrograde Extrapolation?

In some cases a person's blood alcohol level may not be high enough to attempt to punish him or her for driving with a proscribed level. In these cases the prosecutor will try an "relate back" the BAC to the time of driving in an effort to show the BAC was higher at the time of drving versus the time the test was administered. Some believe that this is nothing more than an educated guestimate. To do this the DA will use an expert to use various "known" facts and assume the other unknowns. This practice is frowned upon by many DUI scientists yet many Judges will allow the evidence despite crticism by those in the scientific community.

How to Get Your License Back After an Under 21 DUI

A DUI arrest for an under 21 driver has serious consequences.  In California, anyone under 21 years old who has been convicted of driving while intoxicated/driving under the influence (DWI/DUI) or who has been found to have been driving with a .01% or more of alcohol in their blood will have his or her driver's license suspended for at least a year. If the individual does not live near adequate public transportation, must work to support the family or is responsible for the medical care of another family member, the court may issue a restricted license because of "critical need."  A mandatory 30-day suspension is required before filing the application. 

Here is the 5 step process to apply for the under 21 restriction.

First, Determine whether you meet the criteria to be considered for a critical need driver's license. If you were under 21 years old when you were arrested, tested positive for a 0.01 percent blood alcohol concentration and had your driver's license suspended, you may be eligible for a critical need license. One of the conditions for obtaining a restricted license is that you did not refuse to take the blood or breath test required by a peace officer to determine your alcohol level at the time of your arrest.

Second, Ensure that you meet critical need criteria. You are eligible for a restricted hardship license if the California Department of Motor Vehicles (DMV) determines that public transportation is inadequate and that you must operate the vehicle to transport a family member to and from the doctor's office or other medical facility, to travel to and from school, to go to and from work or to tend to some other family business for the purpose of acquiring income. Further, you must be legally present in California to qualify for a restricted hardship license

Third, Download the DS 694 application form titled "Application for Critical Need Restriction".  You must first check one or more of the reasons you need a restricted hardship license. These include "For Family Illness," "To and From School," "To and From Work" and "For Family Enterprise." Be sure to include your name, driver's license number, address, and other pertinent personal information. Next, describe your transportation needs, the distance the destination is from your residence and the route you drive to the destination. Include the other drivers in your household, their driver's licenses and the reasons they are unable to provide transportation

Fourth, Request the following individuals complete the Statement of Facts section on the application. If you are requesting a critical need restriction to transport a family member to receive medical care, have the physician state that your family member is unable to drive to and from her office and requires your help. If you are requesting a critical need restriction in order to drive to and from school, ask your school principal or dean to fill out the pertinent information on the application. Finally, if you are requesting this hardship restriction for employment purposes, ask your employer to complete this section on the application

Fifth, Complete the form and mail it to the address on the form. You may also attache other relevent documents such as enrollment in DUI education classes and the like, DMV will review the application and notify you within 10 working days whether or not your application is approved. If DMV approves your application, you must go to a DMV field office to complete the final section of the application, pay a $100 reissue fee and submit proof of insurance, which you must maintain for three years.

Drunk Driver Crashes into Another Drunk Driver

A 23-year-old suspected drunken driver from california nearly ran over CHP officers who were investigating a fatal wreck – also believed to involve alcohol -- this morning along Interstate 15 in Hesperia, according to CHP investigators and jail records.
The defendant was arrested this morning along Interstate 15 near Main Street and booked for investigation of drunken driving, jail records show. He was released after promising to appear in court to answer any charges that may be filed.

Officers caught the suspect driving a 2012 Honda Civic that traveled through a traffic cone-and-flare pattern that was supposed to keep motorists out of an accident scene that killed a driver at 1:05 a.m. today along the freeway’s southbound lanes near Bear Valley Road, investigators said in a written statement. The victim in that DUI accident was a man believed to be about 35 years old, CHP Officer Jaci Parent said early today from the traffic management center in San Bernardino. San Bernardino County coroner’s officials have released no information about that man or the incident.

The victim died instantly when the 2002 Lincoln LS he was driving changed lanes at high speed and hit the trailer of a 1999 Freightliner big rig.

“Alcohol is considered to be a factor in this collision,” according to the CHP statement.

A Quick Primer on the Two DUI Crimes in California

In California, lawmakers have enacted two distinct crimes relating to DUI. One, VC 23152(a) requires proof of actual impairment.  Section 23152(b), added in 1981, made it unlawful for a person to drive with a blood-alcohol level of 0.10 percent or more, by weight, and specified that, “percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood.”   To secure a conviction for this new “per se DUI” offense, the prosecution no longer had to prove the accused driver was actually impaired at the time of the offense, but only that heor she drove with a blood-alcohol level at or exceeding 0.10 percent.    In 1989, the California Legislature further strengthened our state‟s DUI laws by lowering the punishable blood-alcohol threshold from 0.10 percent to 0.08 percent.  This is the proscribed level today

 Therefore, after 1981 there were two parallel statutes making it a crime to drive while intoxicated.  The generic DUI provision (§ 23152(a)) retained the historical approach, requiring proof that the defendant was actually impaired by his drinking.  The per se DUI statute (Vehicle Code 23152(b)) simply required proof that the defendant had been driving with a blood-alcohol level over the legal limit.  If the limit was exceeded, the statute was violated, and no additional proof of the defendant‟s impairment was required. The interplay between the two statutes can often be confusing for laymen, an attorney should be consulted to explain the interaction of the two offenses in your case.

New Law Seeks to End Impound Abuse

Police agencies in California will no longer be able to freely impound cars from sober but unlicensed drivers who are stopped at drunk-driving checkpoints under legislation signed Sunday by Gov. Jerry Brown.  Under the new law written by Assemblyman Gil Cedillo (D-Los Angeles), if a sober driver is caught at a DUI checkpoint without a valid license, law enforcement officers must release the car to a qualified driver representing the registered owner. In cases where a legal driver is not readily available, AB 353 says, the vehicle is to be released to one later at the impound yard.

Some CA lawmakers have alleged that sobriety checkpoints have been misused by some cities to unfairly target illegal immigrants who do not have a driver’s license. Because cities can hold cars taken from unlicensed drivers for 30 days, the accumulated impound fees can turn out to be more than the car is worth, resulting in some drivers losing their cars.

Step by Step Process to Get Your Drivers License After a DUI in CA

The purpose of this article is to explain the process to obtain your drivers license following the Court disposition of your case. You will likely receive a letter from the California  DMV that explains your license is suspended as a result of the Court conviction, however if you read the letter carefully it explains that you may immediately obtain a restricted license. The following is what you must do:

1. Obtain proof of insurance by way of an SR-22 that must be filed with the DMV. This is done electronically directly from the company to the DMV.  It is best to do this as soon as possible.

2. Get enrolled in the Court ordered alcohol education program. The program will file the enrollment with the DMV, confirm with them that they have done so.

3. If the offense occurred in Los Angeles, get an Ignition Interlock installed in your car, for help with this contact an IID provider, let him know an attorney represented you and you will receive a discount off the normal fee.

4. Pay the re-issue fees to the DMV at any field office. Usually there a two fees, one for the Court reinstatement and one for the APS reinstatement.

5. Lastly, you must wait the mandatory period of time following the imposition of the “APS” suspension following the DMV hearing, APS order. This is no longer than 30 days, however, the period of time can be shorter if the hearing officer grants our request for a “back credit”. To determine this time period look at the start date of the suspension on the DMV decision, it is 30 days after that “start date”. In some cases the DMV hearing decision will have not yet been mailed by the time the Court case is resolved, in these cases you must wait for the outcome of the DMV hearing before your license will be returned.

DUI Convictions and the Suspended Drivers License

Of all the consequences that come with a DUI conviction, the harshest consequence of all is the drivers license suspension.  If you are convicted of a DUI, your driving privilege will be suspended for at least one year.  This suspension can impact your entire life, and may dramatically change your ability to go to work and go to school.  There are no exceptions.

If you live and work in a place with public transportation, or your work and/or school is close to where you live, this may be a minor inconvenience.  I have had clients who live in rural areas, but who commute to the city for work, and as a result of a suspension, they lose their jobs.

There are ways around the license suspension, but they are fact specific to each case.  For example, on a first time DUI, I have been able to negotiate an alcohol impaired driving charge instead of the full DUI.  Drivers License Division doesn't suspend a license for a first time alcohol impaired driving.  A second alcohol impaired driving, however, will result in a suspension, so if you are lucky enough to dodge a suspension the first time, learn your lesson. 

If you are being charged with a DUI, call me.  I will work hard to protect your driving privileges.

How Will a DUI Conviction Effect My Record?

  Many of my clients are anxious to know how a DUI will effect them, and for how long. The concern is that a DUI conviction: limits your ability to drive, impact your employment opportunities, effects insurance rates, carries with it a social stigma, gives you a criminal record, and acts as a prior for future DUI's .

 In Utah, a DUI conviction will stay on your record for 10 years. A second DUI within that 10 years period dramatically increases the penalties you face if convicted again, and a third DUI within the 10 year period is a felony, punishable by up to 5 years in the State Prison.

Once ten years have passed, you will be eligible to expunge your DUI conviction, and it will no longer be used as a prior conviction. This ten year waiting period for expungement is the longest for any type of crime in Utah. For example, felonies can be expunged after seven years, and some misdemeanors can be expunged after three years, but any alcohol related driving offense must wait the full ten years.

I have been successful in negotiating with prosecutors to reduce a DUI charge to an alcohol impaired driving charge or even a non-alcohol related reckless driving, under certain circumstances. A reduction to straight reckless driving is not always possible, depending on the fact of the case, but when it happens, it reduces the time the conviction is on a client's record by more than half. A reduction to alcohol impaired driving can help you keep your drivers license, and lessen the impact on your insurance, but it acts as a prior conviction for future DUI charges, and cannot be expunged until after the ten year waiting period.

 If you want to avoid having a DUI on your record for ten years, call me to schedule an appointment. I will review the facts of the case and see what if any negotiations can be done to reduce your conviction. The best advice I have is not to drink and drive.

California DUI Laws

No area of the law has undergone such a significant change over the last 20 years than that of California DUI Law. Indeed, the legislature has tinkered and toyed with various aspects of the criminal drunk driving laws such as sentencing, enhancing sentences through new statutes that impose more severe jail requirements under certain factual circumstances such as speeding, having children in the car and having elevated blood alcohol levels. The state has shortened the time period that a DUI prior can be used in the current case. An increase in the length of DUI schools, adding three additional programs. All of these changes just in the last decade or so. What changes will we see in the coming years? Time will tell.

The Intoxilyzer

In the past, someone arrested for driving under the influence of alcohol (DUI) used to be given a choice of three tests to verify the amount of alcohol in their system: a blood, breath, or urine test.  Since then, urine tests have been found to be unreliable for concentration amounts.  Blood tests are invasive and involve a needle.  Because of this, a breath test has been the preferred choice by law enforcement and the accused.

To take a breath test, a person blows into a machine, called an intoxilyzer, and the machine figures out how much alcohol is in their blood.  If the result is a .08% blood alcohol content (BAC) or higher, then the person is deemed intoxicated and not safe to operate a vehicle.  A result lower than a .08% infers that the person may be safe to drive, but that can be challenged by the person's driving pattern and other factors.

An intoxilyzer is a machine, and is subject to problems, like any other machine.  Sometimes the results are not accurate, the machine may need calibration, and there is an expected variation in results.  Also, the operator must be trained and certified, and needs to keep the certification current.  There are also rules governing an observation period prior to administering the test to make sure that there is no alcohol in the test subjects mouth from burping or regurgitation that could effect the validity of the test.

If you have been arrested for DUI, and had to take a breath test, this fact will be explored in both the Drivers License Hearing and the prosecution of the criminal DUI charges.  I have successfully represented clients in challenging the validity of the intoxilyzer test results based on the problems with the technology, the failure of  a police officer to follow the mandatory protocols, and the failure of the officer to keep his certification current.  As a result, I have been able to help my client's keep their drivers licenses, and avoid criminal convictions.

Public Defender vs. Private Attorney

Should I hire a private lawyer or just go with a public defender?  What's the difference between the two?  What advantage would a private attorney give me over a public defender?   These are important questions to ask yourself when charged with a crime.  Naturally you would want the best representation possible.  But is it worth paying thousands of dollars to a private attorney when a public defender is free?

To begin with, let's define the two.  In Utah, counties and cities open a bidding process to fill the position of Public Defender.  Bids come in from various attorneys with different levels of experience and expertise.  The Public Defender contract is usually given to the lowest bid, sometimes with no regard for experience.  Once the public defender is selected he or she is inundated with cases, appointed by the court, for defendants who qualify for free representation.  The case load is always very large, and very limited of time is given to each case because of the volume of cases.

Public defenders work with the city and county prosecutors to resolve each case as quickly as possible.  Because of the huge demand on the public defenders, defendants do not always get the best representation or defense in their cases.  I have heard many defendants upset and frustrated that their public defender has no time to return phone calls, refuse to prepare a suppression  motion, do a preliminary hearing, or take their case to trial, because they don' have the time.

A Private Attorney is a lawyer who is hired by a defendant to represent them in court.  Private attorney's have much small case loads, thus they have more time to work on a case, interview witnesses, investigate and meet with the client, even return phone calls.

Hiring a private attorney allows you to shop around, get referrals, research which lawyer has experience in criminal law, and which one is a general attorney, knowing a little bit about a lot of different areas.  Most private attorneys will allow you to come into their office for a free initial consultation.  This way, you can find out how experienced the attorney is, his or her feelings about your case, and the fee you would be charged.

The saying "You get what you pay for" is often very true when hiring an attorney.  The more experience, the better the representation and defense.  If you are charged with a crime, give me a call.  You don't want to chance your future with anyone else.

California Appeals Courts Start To Decide Cases on Illegal DUI Blood Draws

Earlier this year the US Supreme Court ruled that a DUI blood draw against a person's consent violates the Constitution. Recently, in seven separate cases, each defendant was charged with misdemeanor driving under the influence (Veh. Code, § 23152, subds. (a), (b)) and filed a motion to suppress evidence pursuant to section 1538.5, contending that the blood drawn from his person subsequent to arrest and pursuant to the implied consent law should be suppressed under Schmerber v. California because the blood draw was not performed in a constitutionally reasonable manner. In each case, the arresting officer transported the defendant to the jail (or in one case a hospital) where phlebotomists or other technicians drew the blood. The officers observed the blood draw and testified that each defendant agreed to the test, no defendant experienced undue pain, and the draw was performed in a sanitary manner. The motions to suppress were denied in six of the seven cases. The appellate division of the superior court agreed with the defendants that the evidence should have been suppressed. The California Court of Appeal transferred the cases from the appellate division and consolidated the cases for decision. The Courts Reversed. Finding that the means and procedures used to obtain a blood sample from an arrestee in a DUI case must be reasonable under the Fourth Amendment. If a physician does not draw an arrestee's blood in a hospital, courts evaluate whether the conditions of the blood draw created an undue risk of harm to the arrestee. Testimony from a police officer who witnessed the blood draw may properly be considered in evaluating whether the blood draw was conducted in a constitutionally reasonable manner—expert testimony is not required. Here, the officers' unrebutted testimony showed that the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain and was not performed in a manner which created any undue harm or risk. The blood draws were conducted in a constitutionally reasonable manner.

The Right To Rehabilitation for a DUI in California

In California, as is the case in many other states, the court must inform the defendant, either orally or in writing, of his or her right to apply for relief from all penalties and disabilities resulting from a misdemeanor DUI conviction after the passage of one year from the date of pronouncement of judgment, or longer if the defendant enters into a plea bargain with the prosecution.  This right is sometimes referred to as an expungement.  According to one Tehachapi DUI Attorney, this right to relief is available provided the defendant successfully performs his or her sentence and leads a law-abiding life during that period under Penal Code Section 1203.4a. Relief is afforded by permitting the withdrawal of a plea of guilty or no contest or by setting aside a verdict of guilty and dismissing the accusatory pleading. In DUI cases, the right is limited somewhat to a Judges discretion, unlike other misdemeanor crimes. Defendants convicted of an infraction are not entitled to relief under Pen C §1203.4a. Pen C §1203.4a(b). A defendant who is granted probation on a DUI may apply for relief from all penalties and disabilities resulting from the conviction on the successful completion of probation which under CA law is a minimum of 36 months.  Notice of this right to relief must be contained in the defendant’s probation papers

The New Law About DUI Ignition Interlock Requirement

Last year the California Legislature came up with a bright idea to force first time DUI offenders with no other record to install a device in every car they own that would block any attempt to start the vehicle without a blow from a human that has no alcohol in their breath. The pilot programs in Los Angeles, Tulare and Kings County would be part of DUI probation and would remain on the car for a minimum of three months. According to one Burbank DUI Lawyer , the new law is a complete waste of money and an undue hardship for most first offenders. "The new law only benefits the companies that install the devices" there is little deterrent effect in the implementation of the program and the Courts will be overwhelmed in an already tight budget crisis. Some believe that the new law should be looked at again and repealed. What are your thought?

The Types of Probation in California DUI Cases

In California, the Court may impose two different types of probation in DUI cases, either formal or informal:

(1) Formal probation. Formal probation is the suspension of the imposition or execution of sentence and the order of conditional and revocable release into the community under the supervision of a probation officer.

(2) Informal Probation. A conditional sentence, also referred to as court or summary probation, is the suspension of the imposition or execu-tion of sentence and the order of conditional and revocable release into the community subject to the conditions of the court without the supervision of a probation officer.  A conditional sen-tence may be pronounced without referring the case to the probation officer. Pen C §1203b. If the case is not referred to the probation officer, the court may consider any information concerning the defendant that could have been included in a probation report.

A conditional probationary sentence on a DUI case places greater responsibilities on the Judge than formal probation, requiring the court to perform two distict functions normally carried out by the probation officer. First, the court must furnish the defendant a written statement of the terms and conditions of the probation.  Secondly, it must order the defendant to report to the court, so that the probationer's conduct may be supervised.

When Can a Police Officer Pull You Over?

A police officer cannot pull over anyone without a reason.  There has to be what is called "probable cause" that a crime is occurring to justify a stop and contact.  Officers can also make contact with a citizen to perform a welfare check, if they are concerned that a person is in danger.

Typical reasons why a vehicle is stopped include traffic violations like speeding, failure to signal for two seconds before turning or changing lanes, reckless driving, running a red light, failure to wear a seat belt, crossing the fog line, and driving with a cracked windshield.  Officers also will stop a car if a license check reveals that the registration is not current or the insurance is expired.  In DUI investigations, one or more of these traffic violations will usually be observed.  Other non-criminal reasons for stopping for a welfare check or DUI suspicion would include driving too slow for traffic conditions, or weaving inside the lane.

There are times where the officer does not see any traffic violation, but a concerned citizen calls 9-1-1 to report erratic driving.  Under these circumstances, an officer can stop a vehicle based on the citizen complaint.

To avoid being pulled over by the police, I highly recommend keeping your license, registration and insurance up to date, and keep all of your vehicle's parts in good working order, including your windshield.  If you are stopped by an officer, and the reason why is not clear, keep on eye on the officer to see if he or she walks around your vehicle prior to making contact (looking for a reason to justify the stop.)  If cited or arrested, make sure you let your attorney know as much detail as possible about the stop as an illegal stop can result in the case being dismissed.

I had a client who was pulled over for no reason.  The officer later told him that he was stopped because the license plate light was out.  The officer then investigated further and arrested my client for charges unrelated to the reason given for the stop.  (i.e. DUI, drug possession, etc.)  I filed a motion to suppress the evidence because my client was adamant that his license plate light was working.  At the hearing, my client's friend, who had been a passenger in the car the night it was pulled over, testified and showed the judge a picture of the lit license plate that he took with his cell phone at the scene.  I requested a suppression hearing based on the illegal stop.  As a result, the judge ruled that the stop by the officer was illegal, without probable cause, and threw out all of the evidence obtained after the stop.  The case was dismissed much to the frustration of the Officer.

If you feel that you were stopped without probable cause, call me to evaluate your case.

Utah DUI:Driving Under the Influence . . . Without Driving?

I used to practice criminal defense law in California.  In California, in order to be guilty of the crime "Driving Under the Influence" the accused had to actually drive, the vehicle had to move, if only an inch, while the driver sat in in the driver's seat.

In Utah, a DUI is actually a DSUI "Drivers Seat Under the Influence."  Utah Code section 41-6a-501 outlines how a DUI is committed.  In that section it reads:  "A person may not operate or be in actual physical control of a vehicle in this state if the person . . . has a blood or breath concentration of .08 grams or greater . . . [or] is under the influence of alcohol, [or] any drug . . ."

The Utah Supreme Court has ruled that "actual physical control" in that statute prohibits an intoxicated driver from entering the vehicle.  Garcia v. Schwendiman, 645 P.2d 651, 654 (Utah 1982).  In deciding whether a driver is in control, the Utah Court of Appeal has ruled that a judge or jury can consider the following factors:

1. if the person in the drivers seat is asleep;
2. the position of the vehicle;
3. whether the motor is running;
4. if the person is in the drivers seat;
5. if the person is the only person in the vehicle;
6. whether the person in the vehicle has the keys;
7. could the person start the vehicle;
8. how the car got to where it was;
9. whether the person drove it there.

Richfield City v. Walker, 790 P.2d 87 (Utah Ct. App. 1990).  Notice from that list that only one factor involved whether the person actually drove the vehicle.  Just sitting in the car with the keys is enough to convict someone of DUI if they are intoxicated.  Indeed, the Utah Supreme Court has found that an intoxicated motorist, asleep at the wheel in an inoperable truck, was in actual physical control of the vehicle and was therefore guilty of DUI.

I have represented individuals in Utah who were arrested for DUI when no one saw them drive.  One of my clients was arrested as he was entering his car, another was arrested in her home, and had her car towed from her driveway, because police heard that she had driven while intoxicated,  other clients have been arrested while sitting in the drivers seat waiting for a taxi or family member to pick them up because they knew they were too intoxicated or too drunk to drive.  Fortunately, I have been able to help these clients build a good defense, based on common sense, and they have been able to avoid DUI convictions.  Still, based on the way the law in Utah has been written and interpreted, facing a DUI in Utah without an attorney can lead to expensive, life changing results.

Does a DUI Checkpoint Need To Provide Signs and Turnouts?

The question comes up frequently whether a DUI checkpoint must provide a sign to those approaching it.  Put another way, must a sobriety checkpoint give advance warning to the driver and allow them an opportunity to turn out and avoid the operation if they desire?  The U.S. Supreme Court specifically rejected a lower state court's finding in that case that a checkpoint is unreasonable if law enforcement fails to demonstrate that motorists are made aware of their option to make If-turns or turnoffs to avoid DUI checkpoints.  The U.S, Supreme Court stated the lower court erred by misreading its precedent on what was an improper "subjective intrusion" that a checkpoint could make on an individual driver. A checkpoint's intrusion on motorists by causing "fear and surprise" in them is "not the natural fear of one who has been drinking over the prospect of being stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the stop."

 According to one Long Beach DUI Attorney, The U.S. Supreme Court observed:  "The circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop .... At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' [Citation]" Martinez-Fuerte, 428 U.S., at 558." (Sitz, supra, 496 U.S. at p. 452.) Nowhere in Sitz does the U.S. Supreme Court state that a turn off must be provided before the announcement of a DUI checkpoint. It only states that checkpoints cannot cause fear and surprise in drivers by randomly stopping vehicles without reasonable suspicion, something which the Fourth Amendment guarantees against. To be reasonable under the Fourth Amendment, the checkpoint must provide visible signs of the officers' authority, must be regular in routine and not arbitrary or random, and provide visible evidence that the stops are duly authorized and serve the public interest. (Sitz, supra, 496 U.S. at p. 453; Martinez-Fuerte, 428 U.S., at p. 559.) It is true that in Ingersoll, the California Supreme Court found that the checkpoint had a road sign placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint. (Ingersoll. supra, 43 Cal.3d at p. 336.) However, the U.S. Supreme Court in Sitz subsequently rejected that same objection made by defendants in that case.

In many DUI prosecutions, there is substantial evidence that the DWI checkpoint provided indicia of its official nature. There are usually uniformed personnel manning the checkpoint. The lanes are typically  divided with bright orange reflective cones. Police cars line the shoulder of the roadway and activated their flashing amber overhead lighting equipment. There are electronic construction-type sign at the beginning of the checkpoint area that are reflective orange in color, and bad light bulbs upon which is written "DL DUI checkpoint."  Most Courts will conclude that there was sufficient notice announcing the checkpoint given to drivers in advance of the checkpoint location to permit motorists to turn aside and avoid the checkpoint under these circumstances.  Most Judges will conclude that there is no constitutional requirement that a sign announcing the checkpoint be located prior to a turn off.

A History of Court Decisions on the Constitutionality of DUI Checkpoints

In 1987, the California Supreme Court addressed the question of whether DWI sobriety checkpoints were permissible under federal and state constitutions. (Ingersoll v. Palmer (1987) 43 Ca1.3d 1321, 1325.) "Federal constitutional principles require a showing of either the officer's reasonable suspicion that a crime has occurred or is occurring or, as an alternative; that the seizure is 'carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.' (Brown v. Texas (1979) 443 U.S. 47, 51, citing Delaware v. Prouse (1979) 440 U.S. 648, 663 and United States v. Martinez-Fuerte (1976) 428 U.S. 543,558-562.) As part of its analysis, the California Supreme Court in Ingersoll applied the federal test that was enunciated in Brown v. Texas, supra, 443 U.S. 47. 51 for determining whether the detention of the driver was reasonable.  The Brown test was a balancing test weighing the gravity of the governmental interest or public concern served and the degree to which the program advances that concern against the intrusiveness of the interference with individual liberty. 

The California Supreme Court "determined that (1) '[d]eterring drunk driving and identifying and removing drunk drivers from the roadways undeniably serves a highly important governmental interest,' and (2) sobriety checkpoints advance this interest. (Ingersoll. supra, 43 Cal.3d atpp. 1338-1341.) In examining the third prong of the Brown balancing test, which [it] rephrased as 'the intrusiveness on inclividua1liberties engendered by the sobriety checkpoints: [it] identified eight 'factors important in assessing intrusiveness,' noting that such factors 'provide functional guidelines for minimizing the intrusiveness of the DUI checkpoint stop." (People v. Banks (1993) 6 Cal. 4th 926,936.) It found these eight factors were important in assessing intrusiveness, noting that these eight factors "provide functional guidelines for minimizing the intrusiveness of the sobriety checkpoint stop."  These eight factors are:

(1) Whether the decision to establish a sobriety checkpoint, the selection of the site, and the procedures for the operation of the checkpoint are made and established by supervisory law enforcement personnel;
(2) Whether drivers are stopped according to a neutral formula, such as every third, fifth or tenth driver;
(3) Whether adequate safety precautions are taken, such as proper lighting, warning sign,and signals, and whether clearly identifiable official vehicles and personnel are used;
(4) Whether the location of the checkpoint was determined by a policymaking official, and was reasonable, i.e., on a road having a high incidence of alcohol-related accidents or arrests;
(5) Whether the time the checkpoint was conducted and its duration reflect "good judgment" on the part of law enforcement officials;
(6) Whether the checkpoint exhibits sufficient indicia of its official nature (to reassure motorists of the authorized nature of the stop);
(7) Whether the average length and nature of the detention is minimized;and
(8) Whether the checkpoint is preceded by publicity.

Three years after Ingersoll, the U.S. Supreme Court decided Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444. In Sitz, the U.S. Supreme Court addressed the issue of whether sobriety checkpoints violated the Fourth Amendment of the US Constitution.  It found that the balancing test used in Brown v. Texas and United States v. Martinez-Fuerte (1976) 428 U.S. 543 [approved fixed immigration checkpoints to investigate the transport of illegal aliens] was the appropriate test. In applying the balancing test, the court held that a state's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighed in favor of a state sobriety checkpoint and was consistent with the Fourth Amendment. Three years after Sitz, the California Supreme Court decided People v. Banks (1993) 6 Ca1.4th 926.)  In Banks, the court considered whether advance publicity, one of the eight Ingersoll factors, was a constitutional prerequisite for a sobriety checkpoint. The Justices held that in light of Sitz and other authority, a DUI checkpoint that lacked advance publicity but otherwise conformed to the Ingersoll guidelines was not a unreasonable seizure.

The evolution of the Drunk Driver checkpoint is nearly 40 years in the making.  Most Attorneys understand that a challenge on fourth amendment grounds will be met with much opposition.  But, checkpoints can be fought if the person understands the cases and the requirements

Why are DUI Checkpoints Constitutional?

The U.S. Supreme Court upheld the constitutionality of sobriety checkpoints in 1990. If conducted properly, DWI checkpoints do not constitute illegal search and seizure in most states. The U.S. Supreme Court decision held that the interest in reducing alcohol-impaired driving was sufficient to justify the brief intrusion of a properly conducted sobriety checkpoint.

Most states, including California,  allow DUI checkpoints. Many states have set up and established their own guidelines to supplement the federal rules.  For instance, most jurisdictions require advance notice of the checkpoint to the public. A few states require the production of police studies showing why a checkpoint location is selected. One state requires police to obtain a Superior Court order before the checkpoint may be conducted. the laws in most states will dictate to what extent the police can go in stopping motorists to determine their sobriety .

According to one Torrance DUI Attorney, if a checkpoint complies with the federal requirements, it does not violate the United States Constitution.  Most states have decided the issue under their own constitutions as well.  In states where sobriety checkpoints are prohibited, the reasons vary as to why they aren’t allowed. Eleven states currently prohibit any type of sobriety checkpoint. California decided back in the 90's to allow the police to stop vehicles following the Federal law standards, put another way, the law in this state is that the cops can stop and search people as long as the stop complies with the U.S. Constitution, not the state Constitution.

So why is a DUI checkpoint legal?  One perspective is that, as citizens, most of us support the police to protect us from theft, burglary and assault. Yet, many otherwise law-biding citizens continue to view impaired driving merely as a traffic offense. Don’t be fooled. Impaired driving is no accident nor is it a victimless crime. s a serious crime that kills more than 16,000 people and injures nearly 305,000 others every year. Every 32 minutes, someone in America dies in an impaired driving crash. Every two minutes, someone is killed or injured by a DUI driver Law enforcement agencies in every State and locality are serving on the front lines in the fight against this deadly threat to this country's communities. Traffic crashes are not only a danger to our citizens but are also the leading cause of death for law enforcement officers on the road. More cities are also beginning to understand the economic cost of this criminal activity. Impaired driving (DWI) cost the public more than $110 billion a year. DUI related car crashes are deadlier and more serious than other accidents and they hurt everyone - annually people other than the drinking driver pay 50 plus billion of the costs of DUI drivers.

Kern County DUI Attorney Explains Timing of Convictions in a DUI Case

In California a DUI driver faces harsh penalties when they have priors for driving under the influence and are arrested on a new case.  The Legislature has declared that the timing of court proceedings should not permit a defendant convicted of a violation of Veh C §23152 or §23153 to avoid enhanced mandatory minimum penalties for multiple separate offenses occurring within a ten-year period. Veh C §23217. California lawmakers have expressed  intent that a defendant should be subject to these enhanced penalties regardless of whether the convictions were obtained in the same order in which the offenses were committed. Veh C §23217. See People v Snook (1997) 16 C4th 1210, 1213, 69 CR2d 615 (applying statute and finding it constitutional). According to one Kern County DUI Attorney, the current offense and the separate violations resulting in convictions must all occur within a ten-year period. See People v Munoz (2002) 102 CA4th 12, 16–20, 125 CR2d 182 (defendant wrongfully charged with a violation of Veh C §23152 punishable under Veh C §23550 (then requiring priors within seven-year period) that occurred in 1996, despite convictions for violations that occurred in 1990, 1997, and 1998; although all three separate violations occurred within seven years of the current offense, the three violations were themselves more than seven years apart).

Enjoying the Beach, Avoid coming on vacation and leaving on probation

With the summer here and temperatures soaring, many are visiting local beach communities but find themselves being arrested for a DUI. One Grover Beach DUI Attorney has warned that watch out for local police who ramp up the enforcement and DUI patrols when the temp warms up. Avoid being arrested by following these 3 basic rules: If you drink do not drive, If you have no one to drive for you take a cab home and If you are going out to party leave your car keys at the door. have fun this summer!

How to Challenge Identity For a Traffic Ticket

A person may contest a charge by claiming under penalty of perjury not to be the person to whom the notice to appear was issued when identification was made by thumbprint or fingerprint. The person must submit a thumbprint or fingerprint for comparison with the thumbprint or fingerprint on the notice. The traffic court may refer the print submitted together with the print on the notice to the prosecuting attorney for comparison. If there is no fingerprint on the ticket or a comparison of the prints is inconclusive, the court must refer the notice back to the issuing agency for further investigation, unless it determines that a referral is not in the interest of justice. Vehicle Code §§40303(c), 40305(b), 40500(e), 40504(c). According to one Kern County Speeding Ticket Attorney, this process will result in the continuance of the case and tolling of the speedy trial period for 45 days. Veh C §§40303(c)(2), 40305(b)(2), 40500(e)(2), 40504(c)(2). The court may make a finding of factual innocence under Penal Code §530.6 if the Judge determines there is insufficient evidence that the person cited is the person charged or if the prosecuting attorney or agency does not respond within 45 days. Except in the latter case, the court may determine that a finding of factual innocence is not in the interest of justice.  This process is available for most speeding tickets but not for DUI or misdemeanor charges.

Can a Medical Marijuana Defense be Lodged Against a DUI Charge

With many in California getting a doctor's recommendation to smoke marijuana comes the frequent question of whether a prescription for pot use can be a defense to a DUI? The short answer to this question is no. California law proscribes a person from driving under the influence of alcohol or drugs. Just as a person cannot go into Court and claim that they purchased alcohol legally or purchased pain killers legally, they cannot say that they can drive while under the influence of pot just because they had a prescription, period!

Is There a Crime of Parking While Drunk

More often nowadays attorneys are seeing cases involving individuals arrested for DUI that were not actually driving . The question many folks have is whether it is legal to arrest foe drunk driving when the suspect was actually parked. The officer is permitted under California law to arrest if he suspects that the person was driving when they were intoxicated even if they were not driving when the officer pulled up. Th bottom line is that there must be sufficient circumstantial evidence that shows a crime did occur, ie. that the person admitted to having too much to drink and driving or that the engine is running or that the car is blocking traffic, etc.

DUI Attorney In Orlando

Let the best DUI attorney in Orlando fight for your right
One of the most common trespassing of law, a dui or also known as the driving under influence situation requires expert lawful assistance. You are required to look for an attorney instantly. Try finding someone who focuses primarily on protecting in the drink and drive cases. An excellent dui attorney in Orlando can effectively help you take care of your situation and walk scot-free. To accomplish this, you should have an attorney who would strongly fight as your representative in any criminal law firm in Orlando FL. The major results in courtrooms and lawful workplaces are reliant on smart exchange of words and an important successful skill that would help in putting one's foot forward firmly is aggression.

When you have your individual reasoning that would defend your situation, you probably would not experience any repent for your criminal activity. No one wants repent and shame to take over. These emotions can convert relaxed individuals into damages. Your attorney should be able to tell you not to go under depression over your criminal activity and to have trust in him. Actually, the beneficial perception of the attorney in you should be able to help you come up with tangible reasoning protecting your scenario. He should be able to discover confirmed lawful results that are determined from your reasoning. Logic is the only way that can help you protect the freedom of yours. He should not assess you to take inconsistent factors in your discussion. When you are choosing an attorney, be sure enough that your speech is sensibly audible above the others.
The social angle often get the courts to reconsider a particular legal situation. See that your lawyer can picture the entire image of the social impact of your case and present it to the court. He should be able to present how useful and worthy you are when you are free. Stress should also be upon your otherwise obedience with the law. Supporting your case with these criteria, the Orlando dui attorney should be able to paint the right picture of you before the authorities. This often helps.

Try to contact the attorney as soon as possible. Many cases are resolved before they reach the courts. See whether you have a prospect to that. In fact, you should insist on finding someone who has good professional contacts to ensure that your case goes through the right channels. When the best dui attorney in Orlando commits to his best efforts in the initial legal consultations, you would know that you are hiring a good lawyer. The last thing you want is a lawyer who depresses your prospects. Instead, you want someone who brightens your prospects.
A lot depends on finding the right and the best dui attorney in Orlando. The attorney is the only person who can help you out of your trouble. Find someone who would take your sides, without any moral judgment. Unless the lawyer is wholehearted to your case, you cannot expect him to defend your rights.

Is a Felony DUI Defendant Eligible For Realignment?

California lawmakers initiated a program in California some time ago allowing for certain offenders to spend time in local county jails versus being sent to state prison.  A Felony DUI carries a sentence of state prison, however, can a convicted offender do that time in county?  The Coorts say no, according to a recent appeals case.  Appellant pled no contest to a section 23152, subdivision (b) violation, admitted a prior conviction under section 23550.5, and was sentenced to a two-year term in state prison. On appeal, he argued he was entitled to be sentenced to local custody because, absent disqualifying factors not present here, Penal Code section 1170, subdivision (h) provides that where the term for the offense is not specified, the underlying offense shall be punishable by imprisonment in a county jail for 16 months, two years or three years. Vehicle Code section 42000 provides unless a different penalty is expressly provided by this code, every person convicted of a felony for a violation of a provision of this code shall be punished pursuant to Penal Code section 1170, subdivision (h). Under appellant's reasoning, since section 23550.5 provides for, "imprisonment in the state prison," but does not provide for a specific term, he was eligible for local custody. The appeals court upheld the sentence. Section 23550, subdivision (a), but not section 23550.5 provides for sentencing pursuant to section 1170, subdivision (h). By failing to include language in section 23550.5 authorizing local custody, the Legislature intentionally excluded those convicted under this statute from serving the term in local custody.   So, no county jail time for felony DUI crimes in California.

Will a Wet Reckless Conviction Require an IID?

In a few counties in the state of California a conviction for a DUI will require the installation of an ignition interlock device or "IID" in the car.  There are currently few exceptions to the rule and Los Angeles County participates in the pilot program  However, one question that folks have is whether an IID will be required for wet reckless pleas, the answer is no.  Fortunately, the law does not compel the devices for wet reckless offenders at this time.  The DMV will not send the people any letter requiring the machines. 

New DUI Laws. What's Ahead For California?

Mandatory jail for first offenders?  Lifetime revocation of you license for any second DUI offense?  10 year mandatory IID for all convicted drunk divers?  These are all being considered by the current lawmakers in the great state of California.  While these draconian measures may seem far fetched, they are on the wish list for many groups advocating for stiffer sentences and punishments for all drunk drivers in this part of the country where drinking and driving is still not regarded as a serious crime.

Currently, the state senate has many bills brought and written by MADD that all mandate that any DUI remain on the driver's DMV record for life.  This means that insurance companies will see the conviction and punish the defendant for all his life.  The bills are winding their way through the legislative process with few groups opposing them with the exception of California DUI Attorneys and some civil liberty groups.  In 2014 we will certainly see some change, it remains to be seen how far the state will go.

Facing Mandatory Jail for a DUI? Consider Pay To Stay

It is an unfortunate fact of life in California, if you are convicted of a DUI as a second or third offense you a looking at the real prospect of a stint in the county jail.  With this in mind, it may be wise to consider the various "pay to stay" programs offered in Los Angeles and Orange County.  These programs offer a defendant the opportunity to avoid going to county jail.  Why is this such a big fear?  Maany believe that the county jails are much more dangerous that the alternatives, particularly in metropolitan L.A. where gang violence is rampant and racial tensions are high.

Before starting the process there are many considerations.  First, can you afford the paid city jail options?  The cost of most facilities is at least $100 a day with some charging as much as 200 or more.  Second, you must submit to a TB test and have good general physical health.   Once you have been approved and paid the requisite fees you can start your time.  You will likely be given your own cell away from the general population.  You will be doing light work, such as washing police cars or cleaning the building,  and have much more freedom of movement than the other incarcerated persons.  Most jailers will give you additional privileges such as unlimited use of a phone, computer, internet and television. 

It would be great if everyone could afford private jail but they can't.  In the coming editions we will provide a list of the cities that offer this jail alternative.  In addition to DUI cases, the programs allow the private option where the case is non-violent and you have no extensive criminal record.

Is a Forced Blood Draw the same as a Refusal?

In California, the law treats the forced removal of blood the same as a refusal. What this means in a practical sense is that the DMV will suspend or revoke your diving privilege for a minimum of one year.

Facing A License Suspension Following an APS Hearing? What You Can Do To Drive To Work

For many, the thought of a license supension in California can be terrifying.  The DMV is completely heartless and unsympathetic to your plight as it relates to your job, your family, keeping your home, etc.   There are immediate steps you can take to keep a provisional license after an unfavorable DMV APS hearing. 

The law does allow for a restricted license if you meet the following conditions:  1.  You are a first offender and have no past suspensions for any DUI related administrative sanctions,  2.  You must have taken a test and not refused.  3.  You must be over 21 and not on any form of DUI probation from any Court.   As long as you comply with the restriction conditions you can keep your license after a short 30 day period.

In addition to the foregoing, you must also get an SR-22 proof of insurance, get enrolled in the AB541 first offender alcohol program and pay all applicable re-issue fees, usually $120.

The "Heat" and Keeping it Off you When Drinking This Summer

No doubt, many of us will be drinking this summer. Keeping the police or "heat" off you back is a simple as exercising common sense. When you consume alcohol, do it responsibly. When you drink do not drive, this simple maxim will keep you out of jail and avoid a DUI on your record.

July 4th DUI Checkpoints Announced for Los Angeles

A number of DUI checkpoints will be administered by Los Angeles police Departments over the Fourth of July weekend.
One checkpoint is planned at the intersection of Broadlawn Avenue and Cahuenga Boulevard West near Universal Studios, according to the Los Angeles Police Department.
A news conference will be held at that location at 5 p.m., with City Councilman Tom LaBonge, a representative from Mothers Against Drunk Drivers and officials from the LAPD scheduled to speak, according to the LAPD.
Another Drunk driving checkpoint will be set up on Florence Avenue between Broadway and Main streets, the LAPD said.
Police will set up traffic signs advising drivers they are approaching a checkpoint. Once there, police will explain to motorists the purpose of the checkpoint and detain drivers who appear to be under the influence, according to the LAPD.
Validity of driver licenses also will be examined, police said.
The West Covina Police Department is also planning a DUI and drivers license checkpoint at an undisclosed location "where a significant number of DUI-related collisions and DUI arrests have occurred," according to West Covina PD Lt. Marty Sevilla.
The checkpoints will be in place Friday, July 2, from 6 p.m. to 1 a.m.

Impossible to Get a Search Warrant in California For a Blood Draw? Not So Says A Long Beach DUI Attorney

Recently, in a United States Supreme Court case, the government argued that obtaining a search warrant for a blood draw of a DUI suspect was difficult to do withing the context of a drunk driving arrest.  However, in California a system is alreadfy in place to get a telephonic search warrant.  As an alternative to written affidavits California Penal Code 1526(b)(1) permits sworn oral statements that are subsequently transcribed. For example, the affiant may phone the magistrate, state probable cause, and obtain the magistrate’s verbal authorization to sign the latter’s name to the warrant under the Penal Code in the state. The resulting warrant is the so-called telephonic (or, more accurately, telephonically authorized) search warrant. The expression “telephonic search warrant” can give rise to the erroneous impression that the warrant itself is oral. All search warrants must be in writing. The only thing different about a telephonic warrant is that the affiant signs the magistrate’s name to a duplicate original search warrant.  This makes sense and allows for adequate protections in the remote context.

According to one Long Beach DUI Attorney, the CA Judges Benchguide offers detailed instructions to Judges on duty after hours and on weekends when the Courts are closed.  The statutes do not mention statements by the affiant over the telephone, but have been interpreted to permit them. The procedure is constitutional. No special circumstances need be shown for issuing a telephonic warrant.  Indeed, in Los Angeles County all telephonic search warrants are obtained through a District Attorney Command Post. Under this process, if the deputy DA believes the case is appropriate for a telephonic search warrant after talking with the affiant, the command post investigator sets up a conference call between the affiant, deputy DA, judge, and investigator (who runs the recording equipment). Courts may have different procedures. The following is an example adapted from various counties.  The affiant’s statement must be recorded. The judge should be sure to record the conversation, check that the equipment is switched on and operating. If the affiant is recording the conversation, the judge should ask whether the recording equipment is turned on.  These procedures ensue an adequate record on review.  There can be no doubt that the implementation of the current procedures can be re-tooled to allow for blood draw search warrants for DUI suspects on the roadside or at the police station after arrest.

Is a Citizen's Arrest in California for DUI Legal?

In California, a police officer is not the only individual that can effectuate an arrest for a DUI.  A citizen’s arrest for DUI is proper when based on the citizen’s observation that the defendant was driving under the influence; in so doing, the citizen may delegate to a peace officer the act of taking the defendant into physical custody. This authority is vested in CA Penal Code 837.   For example, in one recent case, the Court ruled a citizen may make arrest for misdemeanor committed in his or her presence Johanson v Department of Motor Vehicles (1995) 36 CA4th 1209,  Also in another appellate court case, the Justices opined, a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, called 911 and a police officer and reported his observations to officer who made arrest,  and in another published California DUI case, the Court found, an inspector of Department of Food and Agriculture who stopped defendant’s vehicle at inspection station, observed defendant was intoxicated and reported observations to highway patrol officer who arrested defendant.  The bottom line is that a suspected drunk driver cannot escape liability because the person making the contact was not law enforcement.

DUI Drivers Targeted This July 4th

July 4th weekend 2013 promises to be a banner holiday for law enforcement, the state of California has earmarked over a million dollars to checkpoint utilization and enforcement, saturation patrols will make up the remainder of the budget.  Los Angeles County alone has implemented a task force approach will will involve numerous city police agencies and a mobile phlebotomist who will be available to collect samples from DWI suspects for DMV and Court purposes.  The Torrance police alone have publicly stated that it will be on high alert status with its close proximity to the beach areas .  Redondo Beach and Hermosa both have announced a "zero tolerance" to those driving under the influence and has set aside additional resources to deal with the high number of anticipated arrests.

Summer Travel Equals Higher DUI and Speeding Citations

With the heat rising into the summer months most police agencies report a higher uptick in speeding violations. According to one recent survey of California law enforcement, the average stop for speeding will be a chance for the cop to do a quick sobriety check of the driver. According to Coalinga Speeding Ticket and DUI Attorney , based along the interstate 5 freeway in CA, the most common reason for stopping and arresting a drunk driver is excessive speed. With this bit of knowledge we are advising readers to not drink and drive, if you do decide to have a glass of wine or beer this summer and get behind the wheel of a car, do not speed and be safe!

Ignition Interlock For DUI Offenders, The New Paradigm

California may be the first state in the nation that mandates an ignition interlock for all first times DUI offenders. In a new pilot program starting g in July all first offense drunk driving defendants will be ordered to install and maintain an ignition interlock on all motor vehicles as part of their probation in counties such as Los Angeles, Tulare and others. Will this become the norm? Time will tell.

Are Field Sobriety Tests Accurate?

This is an age old question that many pundits frequently raise within the context of arguments for and against DUI enforcement.  The answer to this question can perhaps best be found within the scientific literature that encompasses the area of drunk driving research.  In one study the researchers found that field sobriety tests are only accurate in predicting impairment relative to driving under the influence, about 70 percent of the time.  This statistic takes into account the fact that the participants in the study performed the tests under ideal conditions and they were conducted in accordance with well established federal standards pertaining to sobriety testing protocols.  Other research sheds light on many of the frailties common to the most frequently performed FST's.  At the end of the day most all that are involved in the legal community will agree that this component of drunk driving enforcement is prone to many weaknesses but it is but one factor to be utilized in the arrest and investigation of driving while intoxicated cases.

Looking For a DUI Attorney in Los Angeles? Watch Out For The Traps

For those consumers that are searching for a DUI Attorney in Los Angeles the choices that are displayed on the search engines can seem overwhelming.  What you need to understand is the difference between the organic search results and the sponsored listings that are generated by lawyers that pay to have their names posted above what google thinks are the most relevant results for the query.  For example, if your type in a search for DUI lawyer the results will display at least 3 listings that are at the very top of the screen.  These are the posts that the attorneys pay for, you must scroll down and see the listings below these sponsored results.  It is these results that are the most probative for the search.  Do not get trapped into the belief that the tops spots mean the best attorneys, the bottom line is that the top three posts are bought and paid for and are not typically the most local or the best experienced DUI attorneys that are in the area.

The Future of DUI Defense

The laws of California DUI are in a constant state of flux. For example, the MADD lobby has pressed for stiffer punishment of first time offenders by enactin the IID requirement that goes into effect in July 2010. The insurance industry has gone crazy by requiring those that get a DUI to get an SR-22 and jacking up the insurance rates for first time convictions, the Supreme Court has all but eliminated the fourth amendment when it comes to a drunk driving arrest, what is next? we will see!

Fun, Sun, The Beach and DUI this Summer

With summer comes fun in the sun, drinking and sometimes over consumption of alcohol. No doubt the best advice when indulging is to avoid any driving. Invariably however there will be those that do not heed this advice and get arrested for DUI. One Seal Beach DUI Lawyer offers the following advice if arrested: First do not volunteer any information about the number of drinks you have had, Second, comply with all requests except do not volunteer to do any FST exercises if they are requested, Third, take the breath test not blood and do not agree to submit to the infield PAS unless you are under 21 or your jurisdiction DMV requires it such as if you are on probation. Have fun, do not drink and drive and put on sunblock.

A DMV Hearing Attorney Gives An Overview of DMV Hearings in California

In California the DMV can suspend an individual's drivers license in a varety of ways. Perhaps the most frequent actions commenced are those related to the abuse of alcohol and/or drugs. Statistically, the most common are the Administrative Per Se (APS) suspension hearings, also referred to as DUI hearings which arise out of a drunk driving arrest. This area is discussed more fully in our DMV Information page. These hearings are conducted at Driver Safety offices located throughout the state. In Los Angeles County the hearing locations are as follows: El Segundo, Van Nuys, Downtown Los Angeles, Commerce and Inglewood. In Central CA the DMV hearings are held in Bakersfield, and in San Luis Obispo County the driver safety offices are in Oxnard, and downtown San Luis Obispo.  By statute,  DMV Hearings are very informal and do not involve a trained or elected Judge, rather they are presided over by a DMV employee known as a hearing officer. According to one Torrance DMV Lawyer, the hearing officers are not lawyers but they do have training in the proper procedures and relevant law that dictates how evidence is presented and what standard of proof is necessary to sustain a suspension of an individual's drivers license. The "dual role" of the hearing officer as both an impartial judge of the facts and as a prosecutor for the department has created the appearance of a conflict of interest, but the Courts have held this is acceptable, often to the dismay and disbelief of most lawyers that practice regularly at the DMV.

In addition to APS hearings, some examples of other types of DMV Hearings include: Negligent Operator Hearings that involve cases where a driver has too many points on their driving record; Fraud Hearings involving the misuse of a drivers license to purchase alcohol by those underage; and Medical and Skill Hearings that involve the issue of a person's ability to drive due to age improper use of drugs and various medical conditions. One DMV Hearing Attorney in Torrance relates that  DMV hearings can very often be beyond the scope of the ordinary citizen to handle and therefore the services of a skilled lawyer familiar with the rules and procedures can level the playing field and increase a persons chances of prevailing and saving their license.
The most important thing to know about DMV Hearings is that there is a time deadline to request a hearing, if that deadline expires you may not have a right to challenge the suspension at all.  If you or a loved one is facing a license suspension or pending DMV hearing, call Attorney Matthew Ruff, he has been defending clients at DMV Hearings for well over 15 years and can give you the legal advantage necessary to win the DMV Hearing. Contact him Toll Free at 1-877-213-4453 today, mention this article and recieve a free consultation.

Manhattan Beach DUI Attorney Explains the Meaning of "Bodily Injury" in Felony DUI Cases

The California Vehicle Codes makes a DUI a felony when "bodily injury" results from any unlawful act caused by the drunk driver. Vehicle Code §23153 only requires proof of “bodily injury,” not proof of “substantial bodily injury” or “great bodily injury.” said the Court in the case of People v Guzman (2000) 77 CA4th 761 where the justices held that the California statute only requires proof of “harm or hurt to the body”. Minor injuries will satisfy the statutory requirement such as abrasions, lacerations, and back and neck pain, also cuts, headache, and stiff neck were sufficient injuries that have been found to satisfy the legal requirement of injury.  The distinction is significant given the greater punishment imposed for these offenses.

However, according to a local Manhattan Beach DUI Attorney  Matthew Ruff, there must be some physical injury; merely being shaken up or frightened is insufficient, at least that is what the Court said in the case of People v Lares (1968) 261 CA2d 657, 662. When the defendant causes “great bodily injury,” the court has authority to increase the punishment by imposing a sentence enhancement under Pen C §12022.7. This enhancement makes the offense not only a felony, but a "strike". In addition, when the defendant causes “great bodily injury” and has four or more separate DUI convictions within ten years of the current conviction, the court must impose a sentence enhancement under Veh C §23566(b). Furthermore, The bodily injury must be sustained by someone other than the defendant (Veh C §23153(a), (b)), for example, the defendant may be convicted of a violation of Veh C §23153 based on injuries sustained by a passenger in the defendant’s vehicle but not for injuries sustained solely by the perpetrator of the offense.

Should you require additional information about this topic or if you or a loved one is facing a felony DUI, attorney Matthew Ruff can be reached directly at 310-527-4100 for a consultation and review of your case.

Torrance Public Intoxication Lawyer Explains Distinction Between DUI and Drunk in Public

In California it is a crime to drive while impaired in any way that affects your mental or physical faculties, the impairment can be slight.  In contrast, the state also criminalizes being drunk in public, however the level of impairment required for a conviction is much greater.  For example, if the suspect in a public intoxication case were to fail the so-called Field Sobriety Tests given to suspected DUI drivers that would not necessarily equate to being impaired to the degree required for an arrest for being drunk in public.  According to Matthew Ruff, a local  Torrance Public Intoxication Lawyer  , the law mandates that the intoxication level be to such a degree where the person can no longer care for the safety of himself or to others around him or her.  In reality this means the suspect is so drunk he can stumble out into the street and kill himself or he is endangering the public.  Such a level of proof is certainly not required in a "drunk driving" case.  The bottom line in 647f cases vs. 23152 arrests, is that the requisite level of intoxication required is exponentially higher for public intoxication than for driving under the influence. 

Attorney Matthew Ruff can be reached at 310-527-4100 if additional information or advice is required.

The Speed Enhancement for DUI Charges in California

California imposes additional penalties on those convicted of DUI charges if some aggravated circumstances exist. Among those are when an individual is caught speeding at a high rate at the time he is stopped by the police. The Speed Enhancement as it is known carries an additional jail sentence of 60 days over and above what the original DUI sentence is. According to one Santa Clarita Speeding Ticket and DUI Attorney the law does require that the speeding be done in a manner that constitutes reckless driving notwithstanding the speed traveled. In other words, the conduct has to endanger others by the way the car is driven such as weaving in and out of traffic or speeding on a roadway with many pedestrians.

Questions You Should Ask a Saratoga Springs Personal Injury Lawyer

Questions You Should Ask a Saratoga Springs Personal Injury Lawyer Before You Hire Them

It is always a good idea to interview a few different personal injury lawyers before you choose which one you want to hire to handle your case. Interviewing candidates allows you to find out their expertise and experience levels, their prices and what strategies they will employ to win your case.

Here are questions you ask of your Saratoga Springs personal injury lawyer before you hire them:

Are you legally able to practice law in NY State? The answer to this question should be "yes". Dont forget to ask for proof.

What is your area of specialization? What kinds of injury cases do you take on?

Personal injury lawyers work in specialized areas, such as medical malpractice claims, workers compensations claims, or injuries from defective products. You need to know what kinds of cases they take on so that you will know if they can handle your case.

Have you handled cases like mine?

Is so, what was the result of those cases? The answer to this question will help you determine the level of knowledge and skill a particular lawyer has in a specific area. It will also give you an idea of how many cases this lawyer has won and what their rate of success is. The best Saratoga Springs personal injury attorneys will have demonstrated success.

What potential strategies will you use to win my case?

This answer will give you more insight into how the lawyer operates and if they have the necessary skills to win your case. What is your current case load? Do you have time to take on my case? Some firms have lots of manpower and can take on several cases at any given time and still do a good job with them. Other firms or practices have limited manpower and should only accept a few cases at a time. You need to know if the lawyer will have the time to properly work on your case before you hire them.

Will you be the only lawyer working on my case?

If not, who else will be handling my case and what are their qualifications? It is important to know exactly who will be handling your case and if they are qualified to do so. Taking the time to properly interview a personal injury lawyer before you hire them will help ensure that you pick the right person for the job.

So be prepared-we can help find your Saratoga Springs personal injury attorney. Visit for your free Report on choosing the right attorney for you.