Thursday, April 21, 2011

Faulty Breath Machines Being Investigated

According to the Associated Press, Hundreds of DUI convictions in Ventura County CA could be dismissed after handheld breathalyzer devices were discovered to have given faulty readings. Law Enforcement said some of the breath test readings were so high, they would have meant instant death. The district attorney's office sent memos to attorneys involved in cases that included blood-alcohol tests taken on eight erratic machines between Jan. 20 and March 31. The county, which bought 125 of the Intoximeter Alco-Sensor V devices at $4,800 each, has shipped them back to the manufacturer. "The ones already found guilty by trial or pled guilty, we are going through all the cases whether we would be withdrawing pleas," Chief Deputy Public Defender Monica Cummins said. Cummins, who represents 160 people arrested with the faulty devices, confirmed that many had pleaded guilty in Court after seeing the results. The maker, Intoximeter of St. Louis, is trying to correct the flaw. The Ventura County Sheriff's Department expects to have the retrofitted devices back in three months. All will be tested for 100 percent accuracy before they are used again.

CA DMV Now Allowing Second and Third DUI Offenders an Ability to Get Restricted License

For those convicted of a DUI in california and have one or more priors, there is now an ability to get a restricted license from the DMV. Vehicle Code (VC) §§ 13352(a)(3) and 13352(a)(5) allows a second or third DUI offender to install an IID and receive an IID restricted license after a mandatory  suspension/revocation period, if the most recent violation of VC §23152 occurred on or after July 1, 2010, and did not involve the use of drugs.

Eligible DUI defendants and drivers must provide the following:

Verification of Installation Ignition Interlock (DL920 Form Required).

$45 administrative service fee to the DMV

All other CA DMV established reinstatement requirements and fees.

Second drunk driving Offenders whose violation involved alcohol only may reinstate after a 90-day suspension with proof of enrollment in a DUI program. Third DUI Offenders whose violation involved alcohol only may reinstate after a 6-month revocation with proof of enrollment in an 18 or 30-month DUI program.

Conviction Involving the Use of Drugs—Second or third DUI offenders whose most recent DUI conviction included the use of drugs do not qualify for early reinstatement with the installation of an IID until 12 months of a suspension/revocation has been completed. A DUI Attorney can offer guidance for those in this category.

Term of IID Restriction—The term of IID restrictions remain in effect for the remainder of the original suspension/revocation term. Drivers that fail to comply with the IID requirement will be suspended/revoked for the remainder of the original suspension/revocation term. A DUI Lawyer can help to ensure that all criteria are met in order to qualify for the restriction.

Sunday, April 17, 2011

Lawyer Construes the Law of Citizens Arrest for DUI in California

California law pertaining to citizen's arrest can be quite complex.  This article attempts to clarify and summarize when a citizen may arrest a person for 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 in accordance with Penal Code §837(1)  in fact, according to a Long Beach Criminal Lawyer,  the Courts have held that a citizen may make arrest for misdemeanor DUI committed in his or her presence in many cases. For example, when a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, summoned officer and reported his observations to officer who made arrest this was considered legal, moreover, when 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 this was also construed as within the citizen's rights.

Can an Out of State DUI Prior be Used Against Someone in California?

In California, a person who gets a DUI is subject to being charged with a prior offense even if it is one that took place out of state. A conviction of an out-of-state offense that would have been a violation of  CA Vehicle code §23152 or §23153 if committed in California constitutes a conviction of those sections for purposes of the Vehicle Code, including its sentencing provisions. Veh C §23626. For example in tha case of California v Crane (2006) 142 CA4th 425 the Court held that a Colorado conviction for driving while impaired, which requires only that the defendant be affected to the slightest degree, cannot serve as a prior conviction for purposes of enhancing DUI sentence; California violations require an appreciable degree of impairment.

However, in DMV administrative driver’s license suspension proceedings, it is sufficient if the out-of-state offense is “substantially similar” to the California DUI statutes. In the case of McDonald v Department of Motor Vehicles (2000) 77 CA4th 677, 681–689, the court engaged in juxtaposing California and Colorado DUI statutes and finding sufficient similarity even though Colorado statute presumes intoxication at blood-alcohol level of .05 % or more, while Veh C §§23152 and 23153 only presume intoxication at blood-alcohol level of .08 percent or more. This decision is consistent with the Vehicle Code section 13363(b)  which states that an out-of-state conviction must be “substantially the same” in substance, interpretation, and enforcement as the California law pertaining to that conviction in order to be given reciprocal treatment by DMV under Driver’s License Compact.  Many DUI Lawyers however can find loopholes in the laws or utilize innovative strategies in Court to defeat the prior, check with a local attorney about your specific case.

Recently, attorney Ruff represented a client in Torrance Court for a DUI and the person had two prior out of state DWI convictions.  The DA charged her with a third time offense for a Redondo Beach arrest and she was looking at mandatory 120 days in jail if convicted.  Fortunately, Matthew knew how to get around that by compelling the prosecutor to produce certified records of the prior offenses, they could not do it.

Saturday, April 16, 2011

DUI Attorney Explains the Law of Refusal in California

In California, a refusal to take a chemical test when arrested for a DUI can be quite severe. Sentencing and license suspension alone can result in harsh penalties. The arrested person must be told that his or her refusal to submit to or complete a required test will result in a fine and mandatory imprisonment if the person is convicted of DUI, and suspension or revocation of his or her driver’s license. Veh Code §23612(a)(1)(D), (e)–(g). License suspension or revocation is mandatory when the person refuses to submit to or complete a required test, even if he or she is later acquitted or the DUI charge is dismissed. One Lakewood DUI Lawyer tells us that this is different from other provisions which requires the DMV to reinstate the license of a person who is acquitted of driving with a blood-alcohol concentration of 0.08 percent or more, Veh C §13353 does not have a similar provision for defendants charged with refusing to take a chemical test, even when they are found factually innocent of this charge.

Sentencing enhancements can also affect the outcome. On conviction of a violation of Veh C §23152 or §23153, the defendant is subject to the sentencing enhancements set forth in the Vehicle Code, namely mandatory jail time over and above the DUI terms of probation. Before these enhancements may be imposed, the defendant’s willful refusal or failure to complete the required test must be spelled out in a formal complaint and proven beyond a reasonable doubt.

According to one Lakewood DUI Attorney , a refusal can be used against the person in criminal court as follows: The person should be advised that his or her refusal to submit to a test may be used against him or her in court. Veh C§23612(a)(4). The Courts have held that refusal to take blood-alcohol test after lawful request is not act coerced by officer and is not protected by privilege against self-incrimination and the statute prohibiting defendant from refusing to submit to chemical test does not violate privilege against self-incrimination. However, an officer’s failure to give this advisement goes to the weight, not the admissibility, of the evidence.

The person’s refusal to submit to a test unless it is administered by his or her own physician constitutes a refusal under the statute as does a refusal to submit to a test unless the person’s attorney is present  or until the person has had an opportunity to communicate with his or her attorney . According to one DUI Refusal Attorney in Los Angeles a defendant’s demand to look at officer’s card containing information on accuracy of various tests before submitting to test was a refusal. Because the test must be administered without delay, when a person refuses to submit to a test and then changes his or her mind, the person is deemed to have refused to comply with the testing requirement

California Under 21 DUI Attorney Explains the Law of VC 23140 for Minors

It is unlawful in California for a person under 21 years of age who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. Vehicle Code section 23140(a). Recently, the California Courts ruled that the statute does not violate the Constitution or deny persons under 21 equal protection of law even though it bases violation on blood-alcohol level of 0.05 percent or more rather than 0.08 percent level applicable to adults because, the Court said: " minors who drink alcohol and drive pose greater accident risk than those drivers over the age of 21", according to one California Under 21 DUI Lawyer.

In California, a minor may be found in violation of Veh C §23140(a) if the person was, at the time of driving, under 21 years of age and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine his or her blood-alcohol concentration, and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood. Veh C §23140(b). This offense is punishable as an infraction which means that the minor cannot be sentenced to jail if convicted. .On conviction, the clerk of the court must prepare and immediately forward to the DMV an abstract of the record of the court at which time the minor's license will be suspended for one year and points will be added to the drivers record for insurance purposes.

In addition to the VC23140, another under 21 dui law exists in California, VC23136.  This law is the actual "zero tolerance" .01 or more statute.  This code section makes it illegal to drive with a .01 percent or more of alcohol in your blood if you are under the age of 21.  The law is an infraction which means that you cannot go to jail if convicted.

Wednesday, April 13, 2011

Hermosa Beach DUI Lawyer Explains HGN Law in Drunk Driving Cases

In California, police officers in the field have many different "tests" at their disposal to ascertain whether a suspect is DUI. One of the field sobriety tests that the officer may administer is the horizontal gaze nystagmus (HGN) test. The test involves having the suspect follow a moving object with his or her eyes, then measuring the angle of onset at which an involuntary jerking or "bouncing" of the eyes begin. One local Hermosa Beach DUI Lawyer relates that,  Depending on the observations of the DUI police investigator at the angle of onset, the prosecution may argue that the failure of the drunk driving suspect to follow the object or a jerking of the eyes may be consistent with the presence of alcohol and/or some types of drugs. The individual cop's observations may be admitted as evidence of the presence of alcohol, as will the officer’s opinion, based on the Nystagmus test in combination with other tests, that the defendant was under the influence. The officer’s testimony, however, should not draw a correlation between the HGN test and any specific blood-alcohol level. The CA Appellate Courts have ruled that HGN evidence, when viewed with other relevant indications, meets Kelly-Frye standard for general acceptance in the scientific community for purposes of deciding whether a person is under the influence of alcohol.

Sunday, April 10, 2011

California DUI Laws in a Nutshell

In California, it is a misdemeanor to drive a vehicle under the following circumstances:

• While under the influence of any alcoholic beverage or drug, or under their combined influence. Veh C §23152(a).

— DUI involving alcohol. It is not necessary to prove any specific degree of intoxication, but only that the defendant was under the influence. A person is under the influence when, as a result of using alcohol or drugs, his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive the vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.

— DUI involving drugs. When a defendant is charged with driving under the influence of a drug, a showing of a specific measurable amount of the drug in the defendant’s blood is not required. The showing that must be made is that the defendant was under the influence.

• While having 0.08 percent or more, by weight, of alcohol in one’s blood. For this offense it is not necessary to prove the defendant was, in fact, under the influence; it is sufficient to prove the defendant’s blood-alcohol level was 0.08 percent or more.  For this reason, this statute is sometimes referred to as the “per se” DUI statute. There is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.

Veh C §23152(b). The percent by weight is based on grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. Veh C §23152(b).

• While addicted to the use of any drug, unless participating in a narcotic treatment program approved under Health & S C §§11875 et seq. Veh C §23152(c).

• While having 0.04 percent or more, by weight, of alcohol in one’s blood while driving a commercial vehicle. Veh C §23152(d).

There is a rebuttable presumption that the person accused of DUI had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.  Veh C §23152(d).