Sunday, August 14, 2011
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).
Saturday, August 13, 2011
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.