Monday, December 3, 2012

Do DUI Laws Favor The Wealthy?

Is it possible that the law actually favors those who can best afford fines, lawyers and the expense involved in defending a long drawn out battle in the Courts?  One authority says yes.  California makes it difficult for a person to win a DUI unless they fight the charges, and one recent study seems to suggest that those who can pay the fees to an attorney to drag the case out as long as possible might actually benefit the most.

According to one group, the odds favor those that can litigate the most, and the results are stunning.  The legal group Maxim Legit says that if you are charged  with driving under the influence and take the time and resources to hire a DUI lawyer to challenge the case in Court, the statistics suggest the outcome will be more favorable.  Indeed, the numbers point to a range of success of at least 63 percent versus only 12 of those who do not retain counsel and defend the case.  Although the numbers have not been peer reviewed nor generally accepted in the scientific community, the general consensus seems to point to a reliable result.

Saturday, December 1, 2012

Bakersfield DUI Attorney Proves His Client Was Stopped Illegally

About a thousand DUI stops occur every minute around this country, most are lawful and warranted , some are not.  In some cases the police pull over a car for some reason that has nothing to do with whether they saw a violation of the law or some suspicion of criminal activity.  for example, in one recent case a DUI Attorney in Bakersfield proved that his client was pulled over unlawfully by a CHP officer after leaving a popular bar and nightclub.  The officer claimed the car was being driven without any headlights, however, evidence submitted at the DMV hearing in the case rebutted this contention.  Counsel for the driver fully investigated the facts and circumstances surrounding the arrest and put together a case that pointed to the fact that the car's lights must have been on at the time.

On the night of the incident, the driver of the car was pulled out, asked to perform FST's and then arrested for DUI.  His blood alcohol level was above .15% BAC.  He was charged with driving under the influence, his license was confiscated and he spent the night in jail.  The Bakersfield DUI Lawyer challenged police report at a formal hearing in the Kern County Driver Safety Office of the California DMV.  Evidence was presented that showed the lights on the car were on and counsel argued that the reason for the stop may have been motivated by a "hunch" alone that the driver was intoxicated because he was observed leaving the bar around 2 a.m.

At the conclusion of the case, the hearing Judge decided in favor of the licensee and ordered that his license be returned forthwith.  This case underscores a little known problem that underlies the "war on DUI" in this country.  While it is logical that all resources possible should be spent to deter and enforce the current DWI laws, it should not be done at the expense of our citizen's fourth amendment rights under the Constitution.

Thursday, November 29, 2012

Torrance DUI Attorney Explains Possible Probation Terms

A person who is charged and later pleads guilty to a DUI in California can be ordered to comply with a variety of probationary terms that can dictate how they must live their life in the future.  Among the many orders are the requirement that the defendant install an ignition interlock on all cars they own, as well as the real possibility that they serve a sentence of jail.

According to one Torrance DUI Attorney, the probation conditions can also include things such as the requirement that the individual attend classes or perform community service.  The best way to avoid the mandatory punishments is to not be convicted of a driving under the influence or a lesser included offense such as a wet reckless.  But, in those instances where a conviction seems imminent, the Court may impose the following consequences:  That the person complete an AB541 program or SB38 DUI school if they have priors.  That the driver not drive for a specific period of time or  that the license be restricted for a length of time up to 3 years.  The person cannot drive at any time with a measurable amount of alcohol in their system.  They cannot drive after consuming any alcoholic beverage for at least  12 hours.  The accused cannot frequent any bars or visit any place where alcohol is the chief item of sale.  The driver cannot refuse to take a chemical test at the request of any peace officer.  The defendant can be required to perform Caltrans or community labor.  The individual must notify the Court of any change of address, pay restitution for damages caused to any property, pay any civil judgment arising out of any incident which occurred from the arrest of the DUI.  The probationer must obey all laws and orders of the Court.  Attend any AA meetings ordered.  pay any fines imposed.

All conditions of probation for a DUI are sanctioned by the possibility of jail time if the person does not comply.

Sunday, September 9, 2012

Santa Monica DUI Lawyer Discusses IID Issues

Under the current state of the law, anyone convicted of a DUI will be required to install an ignition interlock device on all vehicles registered to the address in which they reside.  Yes, that is correct, they must install an IID on all motor vehicles that share the same address that appear on their DMV report.  What this means is that if you live at an apartment that is also rented by others who have vehicles that they have ;linked to that same address and you claim that you do not have a car, you must install an IID in those cars if you wish to maintain a California drivers license.  Does this seem fair?  According to one Santa Monica DUI Attorney it is not and the law should be changed to reflect the current social living arrangements that most people in Los Angeles County must endure.

Indeed, the purpose behind the law is crystal clear, we want those who have shown they cannot drive responsibly to have to install an ignition interlock to be able to prove they can drive without being drunk.  But is it possible that the law goes too far?  Many believe it does and seek to amend the statute.  Will the citizens of California agree, that remains to be seen.  In the mean time the Courts will uphold the will of the state and require the IID in all vehicles.  This will make some persons illegal and the Santa Monica Criminal Lawyer will continue to argue that change must come too afford some semblance of justice.  Meanwhile back at the California Department of Motor Vehicles, the administration will continue to press on and mandate the device.  Time will tell whether the legislature will succumb to the will of those facing the obligatory installation.  Stay tuned.

Saturday, September 8, 2012

Arrested For A DUI In California?


California DUI laws are complex but they can be used in your favor.  The law allows only 10 days to demand a formal hearing to contest the DMV license suspension.  Contact a California DUI Lawyer today.

What is The Best Way To Clear a Warrant For A DUI?

Many good people pick up a drunk driving case and just never show up to Court.  There are a variety of legitimate reasons for the failure to appear: Illness, school, a job, too busy, lost their license, you name it.  The best way to straighten out a FTA for a DUI is to hire an attorney who can clear the old case and possible even get the charges dropped, many times without the defendant ever having to appear in Court.  A DUI warrant will hold up your drivers license, it will get you arrested and can prevent student aid such as grants and loans.  Dealing with it in the here and know is the best way to give you peace of mind says one Glendale DUI Attorney.  The law states that a bench warrant for a DWI will never disappear and can lead to bigger problems such as jail time and incarceration.  Getting a case resolved can be painless if you get a lawyer involved from an early start.  Do not let worry, anxiety and stress dominate your life, deal with the problem now and get the case over with and done.

Sunday, September 2, 2012

Burbank DUI Attorney Saves Client From Mandatory Jail

If anyone has ever been convicted of a DUI and then subsequently gets arrested and charged with a driving on a suspended license, they should know that the laws in California mandate that they must serve no less than 10 days in jail.  What few people realize though is that there are loopholes in the law that may permit a person accused of such a crime to avoid the jail.  Recently, in one case Burbank DUI Attorney Matthew Ruff was able to get his client a "lesser charge" thereby freeing him from the jail time that would ordinarily be imposed on a charge of Vehicle Code section 14601.2.  Indeed, the California DUI Laws do state that "anyone convicted of driving when their license has been suspended for a DUI, shall be required to serve no less than 10 days in the County Jail".

With that being said, if the charges are reduced down to something less, no jail is required.  In the recent Burbank DUI case mentioned, the defendant walked out of Court and simply was required to pay a fine.  The legal community recognizes that the efforts of competent attorneys will benefit criminal defendants and if the case is not fought than the accused cannot expect anything less than what the state of California dictates.  The lesson learned is that anyone charges with a driving on a suspended license after so being convicted of a DUI should consult with counsel and with any hope can keep themselves out of jail.

Saturday, September 1, 2012

Do California DUI Laws Get Tougher For Teachers?

The drunk driving laws in CA are designed to apply to all citizens of the state.  The laws do not differentiate between teachers, doctors, lawyers, nurses or other professional people.  However, aside from the penal laws that oversee how the criminal courts operate, are the administrative statutes that supervise and regulate how various occupations should conduct themselves, both on and off the job.  For teachers, the laws do regulate what a person can do while not teaching and the type of conduct that may cause that individual to lose his or her teaching credential.  Getting a DUI can and often will trigger an investigation by the state of California as to the person's ability to teach and whether certain off duty activities such as drug or alcohol abuse might affect that job.  In summary, yes a DUI law can impact a teacher if that person is arrested for drunk driving.

Saturday, August 4, 2012

Free Consultation From a Criminal Defense Attorney

Getting a free consultation from a criminal defense attorney is as easy as clicking their website.  Most criminal lawyers do not have a problem giving a free initial consultation on cases involving theft, shoplifting, domestic violence, drug charges and traffic violations such as speeding tickets.  Make sure you explain the details of your case and ask for an evaluation that includes specific details such as the amount of any fee and whether payments can be arranged.

What is the Difference Between a DUI and a DWI?

This is a very common question and can be answered very succinctly.  The difference between the two is just in wording or semantics.  A DUI is a Driving under the Influence.  A DWI is a driving while intoxicated.  Both terms equate to the same thing which is the crime in California of driving while impaired or Vehicle Code section 23152(a).

How Does Bail Work In A DUI Case?

Once a person is arrested on a DUI the officer brings them to the police station for processing.  When the booking and processing is completed the suspect is placed in a cell to "dry out" if the case involved alcohol or drugs.  When sober the person can be released with a ticket or be required to post bail.  If bail is set the individual will have to contact a bail bondsman who can post a surety bond to guarantee the appearance in court.  Bail in DUI cases in California can range anywhere from $5000 up to $100,000 depending on the severity of the charges and the history of the suspect.  The fee paid to a bail company is usually 10 percent.  Most cases in Los Angeles County are handled with an O.R. release which means no bail is required.  In Torrance and Redondo Beach DUI cases for example, the O.R. is usually done within 24 hours of the arrest, but can take as long as 48 hours if the agency is busy or the person is extremely impaired. In conclusion, bail in a DUI case is discretionary and the factors that will dictate the requirement depend on the background of the accused and the seriousness of the criminal allegations.

An even larger question regarding bail is the issue of how long can a bond stay active on a case?  Most bond insurance companies have a clause written in the agreement that allow them to cancel after one year.  This means if the case remains ongoing after 12 months of the arrest the bonding agent can demand a renewal fee to keep the bail current.  According to one DUI Attorney in San Luis Obispo, this can be a real problem, particularly in DUI cases where the case is being heavily litigated.  It may take a year to get a case to trial on a drunk driving arrest, says the lawyer, and having a bail bond expire can be a real problem.  In those cases, most lawyers will ask the California Superior Court to exonerate the bond and grant an O.R. release.  After all, the accused will have likely demonstrated a good record of appearances and will be a candidate for this relief.  Strong family ties and roots in the community also help.

Tuesday, July 31, 2012

I Didn't Get a Pink Paper About My License, Can The DMV Still Suspend?

It is well known that the court and the dmv are separate when it comes to a dui in california.  The process starts with the officer handing the arrested person a pink paper that outlines the suspension process and serves as a temp license pending the formal suspension.  But what about those individuals that never got a pink temporary license and notice of suspension?  Can the DMV take action against the person without this crucial step? 

The answer to this inquiry involves first understanding the purpose of the document.  It is an actual "notice of intent" to suspend and under california law the suspended driver must be given notice of the action in order for the suspension to have any real teeth vis a vis a later arrest for driving on a suspended license (VC14601).  Therefore, the short answer to the question would be, no, it would be improper to take a license without that step.  However, two things could occur.  One, the officer may lie and tell the DMV that he gave the notice.  Two, the DMV can cure the defect by mailing a subsequent notice to the licensee and the right to requesting a hearing starts from the mailing of that notice.  Either way the bottom line is that the accused must receive some type of notification in order for the suspension to be used against the person down the road.

Saturday, July 28, 2012

How Long Can The California DMV Take My License For a DUI?

All punishments for DUI involving a person's drivers license are handled through the DMV.  There is a range of consequences that apply to drunk drivers within the state, here is an overview:  For a 1st time offender who takes a test and is over 21 the maximum term of suspension is 6 months, but this is how that breaks down.  The APS suspension part is a max of 4 months but only a 30 day "hard" suspension because you can get a restricted license for work after a month.  the Court suspension if you are convicted for the VC23152 (DUI) or VC23152b (Driving with .08 or more) is a max of six months, this is where that number comes in.

For second time offenders the California DUI Laws come down much stiffer.  The max suspension is 2 years, however, if you get an IID in your car and the offense did not involve drugs, than you can get a license back after 90 days of hard time.  the law gets tougher for third or more offenders since the new DWI laws allow for a judge to revoke a license for up to 10 years.  Commercial drivers face a tough time as well with most CDL licenses being confiscated for a minimum of one year.  California is hard on driving under the influence cases, so be careful when drinking and driving within the state.

The good news, if there is any, is that every person who is facing a loss of license in California can and will get a full fledged hearing to contest the suspension or revocation.  Most attorneys who practice in DMV defense can help you do everything possible to save your precious driving privilege.

How Long Can The Police Hold My Car In Impound For A DUI?

California Law permits police agencies to impound a car following an arrest of the driver for a DUI.  The duration of that impound depends on a combination of many factors.  For example, if the driver has prior DUI convictions the impound can be indefinite pending a hearing before a judge.  This type of hold presumes that the vehicle poses a danger to the public since it was being driven by a person who shows a reckless disregard for the safety of the motoring public.

The most common type of impound is that of a first offender.  In these cases the hold will often last only as long as the person is in custody and can pick up the car upon release, assuming he or she has a valid California drivers license.  This scenario contemplates an arrest where the officer uses his discretion to have the vehicle towed if the vehicle was involved in the DUI.  The costs of this type of example can be anywhere from $100 to $500 depending on the distance towed and the number of days the car is held.

Monday, July 23, 2012

How Can I Erase A DUI In California?

Once a DUI is on your record it can stay there for many years, but how can it be removed?  Believe it or not, a DUI can be removed from your record, at least your criminal record.  California DUI law states that a conviction shall be deemed dismissed if the person takes the steps to have the case expunged under Penal Code 1203.4.  That statute authorizes a Court to remove a criminal case from a defendant's record as if it was dismissed in the first place. 

The steps to be taken are:  First, get the proper forms from the court clerk or have a lawyer prepare them for you; Second, serve a copy of the petition on the prosecutor that charged you in the first place (note, this step is important because the judge will not consider a request to expunge without the D.A. or other agency being notified of the request); Third, set the case for a hearing at which time the court will either grant or deny the motion.

The cost for filing an expungement in California is $120.  having an attorney handle it will probably set you back anywhere form $500 to $1000.  When selecting a law firm to take care of a petition for expungement remember you get what you pay for.  Most cheap firms will take a long time and can mess up the process by not taking the time to research the case and see to it that the proper steps are taken.

Once a DUI has been expunged it will no longer appear as a conviction on your records, however, the DMV will continue to show the case for up to 10 years.

Sunday, July 22, 2012

How To get a Free Consultation or Second Opinion on a California DUI

Information is king, and when it comes to a pending legal matter it can be a lifesaver.  But where does one go to get vital info and advice for such matters as criminal cases and DUI arrests?  The best resource for a consultation is the Internet.  There are a number of attorneys that have listings on this site for example and each one of them will grant you a free consultation about you matter if you request it.

What about a second opinion on a drunk driving case?  Well, most lawyers will agree to review your case and offer their advice on possible approaches and potential defenses.  It is well understood that California DUI Laws are complex and it is unreasonable to think that every attorney will understand all the nuances of the various penalties and consequences.  Therefore, it may behoove you to get a second opinion or even a third since the ramifications of a CA driving under the influence conviction are very long lasting.

Tuesday, July 17, 2012

Does California Give Jail Time On a First DUI?

For anyone facing a driving under the influence charge in California, many questions exist.  Perhaps the most important question is whether a defendant is facing automatic jail time as a first offender.  The answer to the interrogatory depends on the county and city you are arrested in.  For example, in some areas of Kern County a person who is convicted of a first time DUI has to do 48 hours in jail, and no time is given for the time spent in the jail when arrested.  However, on average, most persons sentenced for a DWI or drunk driving who have no record are given no incarceration, at most some community service or jail alternative.

Sunday, July 15, 2012

Will My Employer Know I Got A DUI in California?

Many things happen when a person is arrested for a DUI in California.  Among them are the fact that the DMV is notified almost immediately via the APS process, but what about your employer?  Are they told?  The answer is yes if they are part of the "employer pull program" administered by the California DMV.  This program allows companies to be notified immediately if a driver gets a DUI or some other ding on their DMV record.  This program is a voluntary one and usually only those who drive company cars will participate.  The one sure way to know if your boss is part of this program is to get a copy of your MVR record and it will say if your employer should be told about any action pending on your driving record.

Saturday, July 14, 2012

Can I get A DUI In California If I Wasn't Driving?


The short answer is no.  The law in CA is that you must have drove when you were impaired. However to better answer the question it is important to understand that California DUI Laws allow for the state to prove driving with the use of what is known as circumstantial evidence.  Here's an example:  The person arrested was found drunk passed out on the side of the road in his car with the engine running.  Can this person be convicted of DUI?  Possibly.  You see, the prosecutor can prove that he was driving at a time he was impaired due to circumstantial evidence such as the fact he was alone in the car, he was drunk, he had to be the driver and he must have driven there when he was drunk.  This type of case is common where the person admits that he drove to the location.  The burden then shifts to the defendant to provide some other scenario that may point to his innocence such as the fact that someone may have drove him there and then left. If no alternative explanation is proffered then the person will likely get convicted.

Therefore, you see that it does not take direct evidence of driving to prove someone was DUI, the CA laws allow for this to be proven in many different ways.  If the circumstances indicate beyond a reasonable doubt that you were driving at some point when you were impaired, you can get a DUI.

Saturday, June 30, 2012

I Got a DUI But Live in Another County, Can I Have The Case Moved?

Under California DUI Laws, a person who is arrested in one county but lives in another can ask for what is called a change of venue.  This principle applies in reality only to the DMV hearing but can also be requested for the criminal case, but with little chance of success.  The request for a change of venue is rooted in the California Vehicle code and permits an out of county driver to have a DMV hearing held in the county in which they reside.  There are limitations to the request and the DMV has the right to object to the move if it presents an undue hardship on their case, such as if there are witnesses needed to testify at the hearing that live where the incident ocurred.


What are the benefits to requesting a change of venue for the administrative hearing in a DUI case?  First, it is likely going to be much more convenient for the licensee to travel and appear at the hearing if necessary.  Second, in many cases moving the hearing to a distant field office has the advantage of taking the "home town" advantage away from the arresting officer.  Let me explain:  If you are arrested in a locale where the arresting officer does many hearings, the hearing officer will know the cop and may feel less inclined to rule against him or her on a close case due to the fact that they will likely see each other again.  So, the reason is one based in human nature.  If the hearing officer does not know the cop, he or she will presumably be more objective, fair and unbiased.  Now, this must be tempered with the prospect that by moving the hearing to a new county you may get a hearing officer that is worse than the one set to hear the matter in the county of arrest.  This can be dealt with by the attorney and make the call as appropriate and should be balanced against all other factors.

One other advantage to requesting a change of venue is that the hearing will usually be delayed due to the process of having the case file transferred form one county to another.  This is always a good thing, a delay in any case nearly always benefits the licensee and allows more time to prepare, plan and strategize the hearing in relation to the criminal case.

Thursday, June 28, 2012

What's Going On In The Mind Of A DUI Cop

For many, the process of a DUI arrest is a very foreign concept.  But wouldn't it be nice to know what is actually going through the mind of a cop during a DUI arrest.  According to one top DUI Lawyer in California, Hieu Vu, the thought process derives from his or her training and goes something like this:

 A police officer is trained to take notes during the evidence gathering stage. However sometimes an officer will make a mental summary of the evidence collected during 1) vehicle in motion stage, 2) personal contact stage, and 3) pre arrest screening. The amount of information an officer has to record is overwhelming. An officer is specially trained to look for people who drive under the influence. When police officer gather evidence to determine if a person should be arrested for a DUI violation they ask themselves three questions. Should I stop the car? Should the driver exit? Is there probable cause to arrest the suspect for DUI? Today, we will cover the first of three stages.
First an officer will ask himself “should I stop the car?” This is also known as phase 1: vehicle in motion. This involves the initial observation of vehicle and operation. This means they are looking for certain symptoms of impairment to manifest itself in your driving. These things can include failure to maintain proper lane position which manifests itself in weaving, weaving across lanes, straddling a lane, swerving, turning with wide radius, drifting, and almost striking an object or another vehicle. The officer is also trained to look for speed and braking problems. These problems can manifest itself in stopping too far, or jerky stop. The office officer is also trained to look for rapid acceleration or deceleration, whether a person is alternating between speeding up, slowing down and also if they are going too slow. (10 miles under the limit.) Vigilance problems in driving are also an issue. These problems manifest itself in driving in the opposite lane, going down the wrong way street, a slow response to traffic signals, a slow or failure to respond to an officer signals, stopping in the lane for no apparent reason, driving without headlights at night, and failure to signal or signal inconsistent with action. Judgment problems are also an issue. These can manifest itself in a driver following another car too closely, improper or unsafe lane change, illegal or improper turning (meaning turning too fast). An officer is also trained to look for improper response when he signals for you. When an officer signals for you to pull over stopping inappropriately will also count against you. For example, stopping in a prohibited zone, or at a crosswalk. Drinking in the vehicle, urinating at roadside, arguing without cause and other disorderly actions are also visual cues that the officer is trained to look for.

An experienced DUI cop in the state of California is also trained to look for people who appear impaired when driving. This could include eye fixation on the road, tightly gripping the steering wheel, slouching in the seat, gesturing erratically or the infamous face close to the windshield. A lot of these cues can occur when a person is tired or distracted. For example when a person uses a cell phone and gets distracted, this will result in weaving or drifting or striking another vehicle. Also when a person realizes there is a police officer behind them, they may keep their eye on the rearview mirror, which results in drifting and weaving because the eyes are off the road. It is perfectly natural to feel uncomfortable when a police officer is behind you. This is also known as black-and-white fever. Some people are cautious drivers and drive below the speed limits quite often, or some of us make snap decisions and go for U-turn at the last minute; this does not mean a person is impaired. These cues are part of a calculus the police officer would use in deciding whether or not to stop you.

Sunday, June 24, 2012

How Does a DUI Affect a Nurse in California?


The law in CA, as is the case in most jurisdictions, allows the licensing agency to discipline those who engage in  unprofessional conduct, including the misuse of alcohol and drugs.  A criminal conviction for VC 23152 can indeed result in the loss of a nursing license in many cases.  The statutes define misconduct pertaining to DUI as " anything that is substantially related to the qualifications, functions, or duties of a registered nurse".   The Board deems any alcohol related misconduct to be an act that warrants discipline.   But wait, don't panic, there must first be a conviction in Court for the criminal offense of DUI, drunk driving or driving while under the influence in order for this "presumption" of disciplinary action to kick in.  This is where a criminal defense attorney can step in and provide help.  Let's first talk more about the laws, regulations and rules that govern the field.  Matthew Ruff, a California DUI lawyer specializing in representing nurses in drunk driving cases, provides some background.

Like many other states, California has a licensing board that regulates and licenses nurses.   The main licensing body in CA is the Board of Registered Nursing which is a branch of the Department of Consumer Affairs.  Any person who wishes to become an R.N. has to be approved by the Board.  There are numerous ways the state can punish nurses who are arrested for a DUI.  In addition to the criminal sanctions imposed by the courts, the state can and often will take action against a person who possesses a professional license such as a nurse or other medical professionals.

The process starts with a letter from the Board of Nursing that offers the offender an opportunity to participate in a diversion program that will keep the incident off the licensee's record.  The letter will request that the individual contact the Board to discuss the case.  Care should be taken when deciding whether to take part in a diversion program because not all nurses who are arrested for DUI are good candidates for the program.  For example, if the offense involved a low blood alcohol level, no accident and there is no history of discipline or past convictions for any criminal acts then diversion may not be a good alternative.  If diversion is declined the state will refer the matter to the enforcement unit that will conduct its own internal investigation of the case and determine if a petition to suspend or revoke a license is appropriate.  In one recent case that attorney Ruff handled for a R.N. In Redondo Beach, he was able to guide the accused through the process and avoid any action against the nurse.  In Court which was decided in Torrance, the lawyer negotiated a disposition for a reduced charge and the driving under the influence allegations were dismissed.

One type of DUI that has particular significance to nurses is when the offense relates to abuse of prescription drugs.  As you might expect the Board considers these kinds of  cases much more serious than those that involve alcohol only.  Hiring an attorney who knows the nuances of drug impairment and California Vehicle Code 23152(e) which is the statute that pertains to driving while under the influence of drugs alone, is very important.  In one recent case attorney Ruff represented a registered nurse who was arrested after a collision on the freeway in Torrance CA.  A blood test revealed the presence of high amounts of opiates among other prescribed medications.  The case presented challenges due to the accident and her occupation.  Nonetheless, the attorney negotiated a disposition for reckless driving (Vehicle Code 23103) which put her in a more favorable position to deal with disciplinary proceedings that followed.  A reduction of the criminal charges to something other than DWI will almost always benefit the client with regard to license consequences.

So, that leads us to the crucial question many people come here for:  Can a nurse lose his or her license in California for a DUI?  The answer is surprisingly yes, even for a first tim offense.  The case law is against those who choose to not fight the DUI charge in Court, plead guilty or no contest and later challenge a Board suspension order.  For example, in one noteworthy case a well respected registered nurse was convicted for a DWI for having a blood alcohol level of .16 BAC.  He presented letters and testimony that he was a great nurse with no record of discipline.  Despite this, the Board suspended his nursing license and he appealed, the Court sided with the Board of Registered Nursing.

Any attempt to suspend a nursing license must start with the initiation of a disciplinary process.  The process is regulated by various California State Laws such as that found in Business and Professions Code section 2762,  which provides in pertinent part that a licensed nurse engages in unprofessional conduct when he or she uses alcoholic beverages "to an extent or in a manner dangerous or injurious to himself or herself, any other person, or the public," or is convicted of a criminal offense involving the consumption of alcohol.   According to California DUI Attorney Matthew J. Ruff, the Board will look closely at the police reports in any given case to determine if the conduct violates this law.  One way a DUI can implicate the relevant code is if the licensee's blood alcohol level was extremely high.  In california the law dictates that a BAC of .15 or higher should be construed as an aggravated offense.  A blood alcohol level is usually determined from a breath test or a blood test taken after the arrest.  However, Ruff explains that many tests can be successfully challenged on the grounds that the official standards were not followed or that the individual was below the per se level of intoxication at the time of driving, a theory referred to as the "rising blood alcohol defense".  Indeed, in one recent case, attorney Ruff related how he was able to have the DUI charge lowered for a client in nursing school due to violations of the testing protocol known as "Title 17".  One thing remains clear, if the BAC levels are not fought, the accused faces a difficult road as far as the state licensing board is concerned.

In one recent California Appellate Court case a Judge ruled that even a first offense DUI where the nurse had a blood alcohol level of .16  and was involved in an accident was enough to trigger a suspension that was brought by the licensing board or registered nursing.  The Court found that the facts of that case, notably the conviction for Vehicle Code section 23152, were substantially related to the duties and functions of a nurse.  What was interesting in that case was the fact that the registered nurse had no prior history of drunk driving or any alcohol abuse, no criminal record and was highly respected by her peers. 

So where does this leave the average nurse that has the unfortunate luck to have been arrested for a DUI in California?  According to many attorneys who defend nurses charged with driving under the influence and other related criminal offenses, "do not plead guilty or no contest to any DUI without first consulting with an attorney".  Particularly in cases where a collision was involved or where the breath test reveals a blood alcohol level anywhere above a .14%.  The authorities seem to focus on these cases but any DWI arrest can trigger an investigation which will lead to a letter asking for information about the incident.

If the nurse pleads guilty or no contest in court, or fails to challenge the DMV action and there is any finding that a DUI was committed than the state can and will take action to suspend or revoke the person's nursing license.  Therefore, any health care professional, R.N., LVN, RPN, or anyone thinking about becoming a nurse in California,  facing an upcoming court date should proceed with caution.


Saturday, June 23, 2012

How Long Does A California DUI Stay On My Record?

The laws in various states differ as to how long a drunk driving arrest stays on a person's record.  there are two aspects of the question that need to be answered seperately.  The first is the DMV aspect.  In CA the DMV will keep a DUI on a driver's record for a minimum of 10 years.  The reason for this is that a conviction for either VC23152a or VC23152b will be priorable for ten years meaning that if the person picks up another driving under the influence with that time frame then the DMV will use the prior DUI as an enhancement to impose harsher suspensions and even jail time on the criminal side.

The second aspect is the criminal record.  Here, it is possible to get a criminal conviction for DUI off a criminal record in as early as 3 years.  This can be done by utilizing the expungement process that California dui laws allows in any criminal case, pursuant to the penal code 1203.4 statutes.  By getting the conviction expunged it allows a person to say they have no conviction for DUI even though it remains as a priorable offense on the perso's DMV record.  So, you can see there is a two part response to the question: How long does a DUI stay on my record?

Friday, June 22, 2012

What is the Fine for a DUI in California?

It is perhaps the first question that jumps into the mind of a person arrested and charged with a driving under the influence offense, what is this going to cost me?  Surprisingly, the fine is usually the least expensive punishment doled out upon being convicted of drunk driving.  The Law in California proscribes a base fine for a first offense DWI of $390, however, on top of the base the Court will add what are called penalties and assessments.  These additional financial costs typically cause the base fine to triple or even quadruple resulting in a typical DUI fine of about $1600 to $2000 total after everything is said and done.

The fines imposed by the Courts can often be paid over extended periods of time such as 6 months to one year.  If the person cannot pay the fine, there are alternatives.  According to one California DUI Attorney, the defendant in a criminal case can request that the fine be paid by way of community service.  In Los Angeles County the Judges will always allow the probationer to do community labor such as Cal trans work or Beach clean-up, or grafitti removal to substitute for any financial obligation.  There are limitations to this type of substitution, for example, certain assessments such as the restitution fine cannot be satidied through community service and must be paid with cash.

Wednesday, June 20, 2012

Will It Help If I Got A DUI In California But I Am Now In Rehab?

Any criminal offense in California is treated very seriously and if you are convicted the judge can sentence you in accordance with the established law in the area.  Among the laws that a judge can consider is whether the individual has accepted responsibility for the crime.  One way of demonstrating that a defendant has done so is to get treatment for any drug or alcohol problem that may have precipitated the offense.  The fact that an accused has admitted themselves into a rehabilitation facility can be considered as a factor in mitigation of the criminal offense.

DUI charges in general often imply that a person may be abusing alcohol or drugs and the fact that they have subsequently obtained professional help is always viewed favorably by a Court.  Drug or alcohol treatment programs can write a letter which can be submitted to the judge at the time of sentencing and the laws in California mandate that a judge consider said evidence prior to the handing down of any punishment.

Tuesday, June 19, 2012

What is an SR-22?

An SR-22  is an official document sent to the California DMV proving that you carry the minimum amounts of liability insurance coverage as required by state law.  Well, you may ask I have the card that is sent to me by my insurance company, why will this not suffice?  No.  The state requires that something more official is required for those who have been ordered to file proof of an SR-22.  The certificate generally lasts for 3 years and must be renewed every year.

Typical kinds of reasons that would necessitate an SR-22 filing would be if someone is convicted of a DUI in Court.  Another reason would be if the driver gets an administrative suspension through the DMV for zero tolerance under age 21 or Admin per se, over .08 BAC or higher or VC 13353.2 proceedings.  These types of actions will usually all require that the individual file and maintain an SR-22 document.

Other kinds of cases include when a person is in a motor vehicle accident and does not have insurance.  The license would be suspended and in order to get the privilege reinstated the person would need to file an SR-22 with the California DMV.

Once the requirement is in place the person must maintain the proof.  If, for any reason, the company fails to keep the certificate current with the state then the driver would receive a notice of suspension that would immediately result in a revocation of the license to drive.

All state but a few have the SR-22 laws and it will be a short time before all states will have similar requirements.

Monday, June 18, 2012

What if I Have a DUI but Don't Live in California and the DMV is Suspending my License?

Here is the scenario:  You get arrested in California for DUI and the DMV issues you a pink piece of paper stating your privilege to drive here will be suspended.  You request a hearing and you lose, your privilege to drive in CA is now suspended.  But what if you do not live in California? The California DMV will take action against your CA license ( Or privilege to drive in CA) even if you do not live in the state if you blow a .08 and lose the administrative hearing or you are convicted of a DUI in Court. One of the biggest sources of frustration is when an out of state resident gets a DUI here and goes back to their home state and get a letter in the mail explaining their license is suspended and will not be restored unless they complete an in state DUI program, in California. Or another example is the person gets a DUI in California -- then moves to another state where they satisfy the terms of your court ordered probation by waiting out the suspension period and compeleting an out-of-state DUI Program. They then find that regardless of whether you move back to California, no DMV in any state in the country will give you a driver's license.  The person facing a suspension can get very frustrated in trying to find out what to do.

The person has two options (1) come to California and complete the approved in person DUI classes (AB541 or greater), or (2) move to another state and waive your "privilege" to drive in California.  So long as you live in California, Calfiornia DMV will never accept completion of an alcohol class from another state. The in-person class must be taken in California even if the court accepted an out-of-state or online program in satisfaction of probation. (Note: DMV requirements and the Court probation conditions are separate.)

If you move out-of-state, you can call DMV Mandatory Actions Unit in Sacramento, California, at (916) 657-6525 and ask for a "1650 waiver packet." They will only mail this packet to the licensee at an out-of-state address (you will also have to prove you live out-of-state with a utility bill or such). This waiver allows out-of-state licensees to drive in California, but does not allow the out-of-state licensee to acquire a California license within 3 years of filing the waiver. One can only qualify for the 1650 waiver once in a lifetime according to DMV information.   The 1650 Waiver removes the California hold, assuming an SR22 is also on file with DMV.

If you come back to California within 3-years and want your license back, you will have to take the applicable in state California DUI class.

The above process is required only if you are convicted in Court for VC23152 or 23153, if you are not convicted in Court of one of these code sections but still sustained an administrative suspension due to having a .08 or higher breath or blood test, under 21 zero tolerance, or refusal, you may not need to get a 1650 waiver but will still be required to file an SR22, ride out the administrative suspension and pay the reissue fees.

How Does Bariatric Surgery Affect a DUI?

Bariatric surgery is commonplace in today's society.  The weight loss treatment that many people have to stem life threatening conditions can often lead to other problems.  Recently, the science in medical journals reported that many have seen an uptick in alcohol abuse.  What impact does the surgery have in a DUI case?  Well, the stomach is reduced significantly, essentially becoming a small pouch that can hold very little liquid.  As such, when alcohol is consumed it it rapidly absorbed and the BAC level peaks quickly then falls very quickly as well.  This condition does not lend itself to any rising BAC defenses due to the quick absorption times.  The surgery may have some influence on BAC levels that fall quickly but the science usually does not lend itself to any known DUI defenses.

Is a DUI a Felony in California?

No, not generally.  A simple DUI, which is codified as a Vehicle Code section 23152 is a misdemeanor in the state of California for all purposes.  The only time a DUI can become a felony is if someone was injured or seriously hurt or of the person charged has 3 or more prior DUI convictions in a 10 year period.  Some believe that the California DUI laws make a DUI a felony if your breath or blood test is very high, say above a .20%.  This is again false, according to one Manhattan Beach DUI Attorney who has defended thousands of these types of cases.  The BAC level will determine the kind of punishment that a judge will impose, such as a longer DUI school or a higher fine or some jail time but the blood alcohol level alone cannot turn a misdemeanor DUI into a felony anywhere in the state of California.  The best advice is to consult with a local lawyer who can go over potential penalties and consequences that may flow form a driving under the influence arrest,  Once you have this information you can make informed decisions about which way you may want to take the case, say a plea bargain or going to jury trial.

Sunday, June 17, 2012

How Do I get An Extension to Finish My California DUI School?

It is perhaps the most onerous condition of any DUI probation, completing a 3 month, 6 month or 9 month alcohol education class.  For some the time necessary to attend is hard to find and therefore they drop out or stop attending only to find that their license is now suspended or they have a warrant for their arrest.  How do you get back in compliance?  The best way is to have an attorney go into court and obtain a re-referral to the program.  this will be required since the classes will not even talk to you wihout it. 

If you cannot afford a lawyer then show up in Court at 8 am and get in the clerk's line.  Ask the clerk to add you on the calendar to see the judge that day.  Be sure to have a legitimate excuse for the referral or simply be prepared to fall on the sword and admit you screwed up.  Having a California DUI is no fun but getting picked up on a warrant because you failed to complete the program is a much bigger problem.  The law can be used to help you get back on track if you want it. Good luck.

Saturday, June 16, 2012

Would a DUI Disqualify a Person Under Obama's Immigration Order?

Recently the president ordered that no person will be deported from this country if they were brought here as children of an illegal alien.  The executive order has been widely applauded by most immigration groups.  But what if the immigrant has a DUI in the United States, would they be excluded from the new policy?  The short answer to that question appears to be no.  At this time the administration seems to have excluded most misdemeanors from the exclusion list that would cause a young person to still be deported.  Therefore it seems that at this time a DUI in California would not exclude you from Obama's executive order.

Many people also have concerns about crimes that were committed when they were minors, such as drunk driving and other alcohol related offenses and cases such as shoplifting or petty theft.  The good news is that pursuant to California law, any juvenile offense, that is one that occurred when your were under 18, cannot be used against you as a conviction.  So, in these cases the Obama immigration order would not even kick in to affect you in any way.

Can a DUI Prevent me from Entering Canada?


The answer is yes.  While there are exceptions, the country of Canada has very strict rules on who may enter the country.  Although a DUI is typically not the kind of crime that results in deportation, entering the nation could be difficult, particularly for non-citizens.  A drunk driving conviction will show up on a person's record and the immigration authorities will have access to those records for purposes of traveling in and out of Canadian territory.  How does Canada get that information?  Under a recent bilateral security agreement between the United States and Canada border agents access criminal records from states such as California instantaneously.  Therefore the border crossing guards will see every conviction of any criminal offense such as drunk driving, wet reckless, and other dui related charges.  What's even worse is that if the case is pending the immigration authorities may deem the traveler to be a fleeing fugitive by border and crossing guards and agents.

The best suggestion for anyone thinking of traveling to Canada anytime soon is to seek an expungement of the DUI conviction which can be done with minimal effort.  California does allow for a person to get a criminal offense removed from their record as a conviction and a lawyer can help in accomplishing this goal.

Also, there are methods to obtain a pardon or admissibility waiver for trips to Canadian provinces.

Saturday, June 9, 2012

Trial By Declaration, What To Do When It Goes Wrong

In California, a speeding ticket can be fought by filing what is called a written trial by declaration.  In Kern County Courts the form is available online and the process is fairly simple, no legal training is necessary.  The process starts with filling out the declaration and stating why you believe you are not guilty of the speeding ticket.  Once you submit your written request and form the case gets transferred to the clerks office who will then request that the officer that wrote the ticket respond by writing his own statement of what happened,  the case then goes to the judge who decides which version is more credible and whether the state has met their burden of proof beyond a reasonable doubt.  But what happens when the trial by written declaration in Kern county is denied?  Well, according to Bruce Blythe a speeding ticket attorney in shafter ca , the case can still be fought.  the defendant can request a trial de novo and get a second bite at the apple.  The case will be set for trial and a lawyer can appear and fight the ticket for you if you cannot appear in court.  The success rate for attorneys is typically well over 90 percent.

Monday, May 28, 2012

Son or Daughter Arrested for DUI?



It can be a parent's worst nightmare, their son or daughter is arrested for DUI.  What do you do?  According to most lawyers, the best thing to do is advise your child to say as little as possible.  If your child calls you in the middle of the night and says they have been arrested for drunk driving, tell them to tell the police they want a parent or attorney present as soon as possible and before they answer any questions pertaining to the arrest.  there is one caveat to this, that is as it relates to the requirement under California law to submit to a breath or blood test.  There is no requirement that the police officer let the young person speak to anyone, doctor, attorney, parent etc. before deciding if they will take a test or which test they will submit to.  Keep this is mind when speaking to the person.  bad advice can lead to a long license suspension or worse.

Key to Avoiding a DUI this Memorial Day

No one wants to imagine being arrested for a drunk driving charge on a holiday.  You are out with your friends and family and like most people will be consuming alcohol and other beverages along with BBQ and great food.  What is the best way to avoid a DUI?  Well, first if you are planning on drinking then plan on a designated driver, this is key.  But, if you find yourself without one there are other options.  most cities offer free or low cost cab rides for imbibing citizens in bars and other drinking establishments.  Some local municipalities actually will come and tow your car and give you a ride home without cost.  The best advice is to give the keys to someone responsible and do not let them give them back if you have had a few beers or some other alcoholic beverage.  Enjoy the holiday but do it responsibly.

Where to go when you need a DUI lawyer

A DUI arrest is unexpected and therefore most people do not know where to go to look for a defense attorney to help them through the process.  most attorneys will tell you that the best place to find an attorney is the Internet.  This is the case because phone books and other resources simply lack the objective information necessary to find and compare legal professionals.  The web offers sites to read reviews about lawyers and you can go to the state licensing website to see if the lawyer has any disciplinary actions in their past.  The Internet also allows for quick comparisons between law firms to determine if the business is local to the court where the accused will be going.

What if I am Arrested But No Criminal Charges Are Filed?

Many times in the day police arrest individuals but the district attorney decides not to file criminal charges against them or decide to "reject" a request by law enforcement to bring a formal complaint against the accused.  In these instances, the question becomes what affect will this have on my permanent record?  It depends.  If the person was booked, that is they were finger printed and a mug shot photograph was taken, then there will be an arrest record history sent to the California Department of Justice reflecting an arrest.  Oftentimes, however, the police agency will not follow up on their duties and update the system that the person was not charged and that all criminal allegations were dropped.  Without this critical step, the person may be strapped with the stigma of an arrest record that shows no disposition which could negatively impact employment and other important aspects of the person's life down the road.  A lawyer can be retained to request that the record be destroyed or that proper methods should be adhered to so that the arrest is shown as a "detention only".  This crucial follow up is overlooked many times and the arrestee will not be aware of the scar on his or her record.

One option is to formally demand that the police department issue a "certificate of detention" after the prosecutor fails to file formal charges.  It should be noted though that this request may be a bad idea particularly when the D.A. is on the fence about filing charges.  In these cases the police may take it upon themselves to pursue the case with the district attorney, sometimes called "awakening a sleeping giant".  So be careful in how you handle these things, it is best to consult with an attorney familiar with the criminal laws in California. 

Sunday, May 27, 2012

Is restitution ordered in a DUI accident dischargeable in bankruptcy?

The question is frequently posed.  What if I am ordered to pay restitution to a victim in a DUI accident but I later file for Bankruptcy, will I have to pay the money? Under California DUI Law, the Bankruptcy Code does not apply to restitution orders. A restitution obligation imposed as a condition of probation is not dischargeable in a liquidation or “straight bankruptcy” proceeding under Chapter 7  Federal Bankruptcy laws. In fact, Courts have found that Civil restitution judgments originally imposed as a condition of debtor’s probation are not dischargeable under Chapter 7 bankruptcy proceedings. Nor is a restitution obligation dischargeable under Chapter 13 (11 USC §§1301 et seq). 11 USC §1328(a)(3). Bankruptcy does not block restitution even when a criminal defendant’s civil obligations to the victim were discharged by bankruptcy before criminal charges were filed. Because collection of restitution is a continuation of a criminal action, the automatic stay provisions of bankruptcy law do not apply. In one recent Court case the Judge found that the automatic stay did not enjoin state court criminal proceedings against debtor for failure to pay child support, according to the relevent law set forth in 11 USC §362(b)(1).

What if the victim in the case declares bankruptcy?  When the victim incurred an obligation to a third party as a result of defendant’s conduct, the bankruptcy discharge of the victim’s obligation does not preclude a restitution order. Indeed, it has been found that the bankruptcy is economic loss despite discharge; no explanation why loss is equal to amount of obligation.

Saturday, May 26, 2012

DUI Accidents

Sometimes a DUI is bad enough, but couple that with an accident and you have double trouble.  DUI collisions are common, many involve simple property damage but some result in injury.  A common question by folks that have been arrested for drunk driving after an accident is how do California DUI Laws treat people that have not only commit driving under the influence but cause an accident as well?  The short answer is that the laws do not create any greater punishment per se unless someone is hurt.  However, many prosecutors will want a larger pond of flesh for a person charged with DWI and also crashes.

Sunday, May 20, 2012

A Follow-Up to California Laws on DUI Drugs (DUID)

With the recent cases dealing with DUI arrests and breath test cases with a breath test results of .00%, there has been a litany of questions how a prosecutor can file drunk driving charges in these types of cases.  It's simple.  VC23152a says that a person can be charged with full DUI for drugs only, no alcohol is needed.  Therefore, if a blood or urine test shows some drug that has impairing effects and that drug can be corroborated by the cop who made the arrest, a DUID charge will be pursued.  With that in mind, it does not automatically mean that a conviction will occur.  There may exist many defenses to the case that a lawyer can help develop.  DUID Attorney Matthew Ruff for example tells us that under the influence of drug cases can often be difficult to prove beyond a reasonable doubt.  Most drugs do not have a per se level of impairment and so that will hinder many criminal prosecutions in Court.  Prescription drugs are particularly hard to quantify impairment levels. One thing is clear California DUI Laws do allow a D.A. to file charges and they will, so get a law firm that knows the ins and outs of DUID.

Sunday, May 6, 2012

Can Amanda Bynes Be Charged For DUI With A .00% BAC?

In the news this week is the arrest of Amanda Bynes for DUI in Los Angeles.  However, her father is not just standing by his daughter in the aftermath of her DUI arrest on Friday. He says there is no way she was drunk  that night. "She was not drunk," Rick Bynes told People. "I'm told she blew a zero on the Breathalyzer. She didn't have a single drink. My daughter doesn't drink." The elder Bynes claims the police officer that detained his daughter was at fault for pulling out in front of the actress as she was turning at an intersection. While she was arrested for DUI after side-swiping the cop, Rick adamantly says his daughter was not impaired, just extremely "upset and very emotional."  So, how is this possible?  One possibility is that she was under the influence of drugs, either prescription or illegal drugs.  California Law  allows a police officer to arrest a person for DUI if the individual was impaired due to alcohol or drugs or both.  Time will tell whether the evidence supports a charge of DWI or that the officer was simply mistaken.

Saturday, April 28, 2012

Understanding the HGN Test in California DUI Cases

The horizontal gaze nystagmus test (HGN) is often the first field sobriety test administered in a California DUI investigation. Customarily, the police officer does not need probable cause to arrest before requesting a driver to perform a field sobriety test such as an HGN. The biggest source of error on the HGN is the failure of the officer to properly administer the test. Indeed, there are at least 25 different steps that need to be performed to properly conduct the HGN test. The National Highway Traffic Safety Administration training manual says that the procedures must be followed with precision and that failure to do so renders the results unreliable. In a DUI trial the jury should be made aware that the tests are standardized field sobriety tests—not randomized field sobriety excursions. It must be explained to the jury that an agency of the federal government (NHTSA) has established that the tests must be given in a particular manner or they are not reliable. No freelancing is permitted. Even if the officer administered the HGN test flawlessly, the test is still subject to attack. In fact, HGN can be caused by a number of reasons other than alcohol intoxication. HGN occurs naturally in some people who are not under the influence. Also, fatigue, illness, hypertension, and common drugs like caffeine or aspirin may contribute to HGN.

Friday, April 27, 2012

What Are the Exceptions to the IID Requirement in California?

The DUI laws in Los Angeles California require the installation of an ignition interlock on all vehicles owned by a person convicted of a DUI.  The question is often asked, how do you I get around this requirement?  There is a possible exemption from compliance with this pilot program if within 30 days of the notification of the IID requirement, the person certifies to the department all of the following:

• The person does not own a vehicle.
• The person does not have access to a vehicle at his or her residence.
• The person no longer has access to the vehicle being driven by the person at the time of arrest for a violation that subsequently resulted in a conviction for a violation of VC §23152 or VC §23153.
• The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with a functioning ignition interlock device.
• The person acknowledges that he or she is required to have a valid driver license before he or she can drive.
• The person is subject to the requirements of this section

When he or she purchases or has access to a vehicle. Installation of an IID device on car(s) does not allow the person to drive without a valid driver license. For the purposes of this pilot program, vehicle does not include a motorcycle until the state certifi es an IID that can be installed on a motorcycle. Further, a person subject to an IID restriction shall not operate a motorcycle for the duration of the IID restriction period.

How Do California DUI Laws Treat Commercial Drivers?

DUI Laws in general tend to slam a person charged and convicted with drunk driving, however, when you are a commercial driver it gets even more evil. In addition to any other penalties, if a driver of a commercial motor vehicle violates Vehicle Code 23152(a), (b), (c), or (d) or section 23153(a), (b) or (d) while driving any vehicle, and the court notifies the DMV of this fact, the DMV must disqualify that driver from driving a commercial motor vehicle for one year. (VC 15300(a)(1)–(4), 15320). If the driver is convicted of a second DUI violation, the California DMV will impose a lifetime ban on that driver’s right to drive a commercial motor vehicle.

What about when a refusal is alleged as part of the DUI? In refusal cases, in addition to any other penalties, if a driver of a commercial motor vehicle willfully refuses to submit to, or fails to complete, a chemical test to determine his or her blood-alcohol content in connection to the driving of any vehicle, the DMV must disqualify that driver from driving a commercial motor vehicle for one year. A driver’s second refusal will result in a lifetime ban on his or her right to drive a commercial motor vehicle.

Thursday, April 26, 2012

California DUI Impoundment Laws

A little known punishment relating to a DUI is the impoundment or actual sale of a defendant's car upon conviction of a drunk driving offense.  Though the California DUI Laws are some of the most stringent in the nation, the penalty is not often imposed, at least in the larger counties, largely due to to the logistical issues involved. Under the California Vehicle Code, the court may order that a vehicle that was used in the commission of an offense of DUI, and was registered to the convicted defendant, be impounded at the defendant’s expense for one to 30 days if the defendant has not had a prior conviction within the last five years. If the defendant has had a prior conviction within the last five years, the court must order impoundment of the vehicle at the defendant’s expense for one to 30 days, except in an unusual case. If the defendant has had two or more prior convictions within the last five years, the court must order impoundment of the vehicle at the defendant’s expense for one to 90 days.

If the accused is convicted of DUI and has two or more separate convictions within seven years, or is convicted of DUI with injury and has any separate convictions within the same period, the court may declare the vehicle a nuisance and order it to be sold, as long as the defendant is the registered owner under CA Vehicle Code §23596.  However, according to one Hermosa Beach Dui Attorney, the court may not order impoundment or sale if the defendant’s spouse has a community property interest in the vehicle, the vehicle requires only a class C or a class M license, and the vehicle is the sole vehicle available to the defendant’s family. (Courtesy, CA Jud. Bch Guide)

Sunday, April 22, 2012

Can a Cop Arrest a Person For DUI When They Were Not Driving?

It may seem like common sense to most folks, the police cannot arrest someone for a misdemeanor unless the offense takes place in their presence.  Well in California the rule is not so clear.  As a general rule, a peace officer may make a lawful arrest for DUI without a warrant for a misdemeanor offense only if he or she has probable cause to believe that such an offense is being committed in his or her presence.  With respect to a DUI offense, the “in the presence” requirement necessitates that the officer see the vehicle move. According to one DUI Attorney in Torrance CA, the Court found exactly that to be the case based on the fact that the offense did not occur in officer’s presence when vehicle, although running, was not moved. Subsequent to that Court's decision the law was changed to allow for a plethora of exceptions that in effect swallowed the rule, these exceptions will be discussed in a later post.  Nonetheless, when one officer has reasonable suspicion, based on personal observation, that a motorist may be driving while intoxicated, the arrest may be made by another officer who did not see the motorist commit the alleged DUI, but who is summoned by the first officer. Because both officers participate in the arrest, the arrest complies with the CA Penal Code.  The bottom line, at this point in CA jurisprudence, is that if the cop strolls upon you and sees you are drunk in a motor vehicle you are likely to be arrested.  Whether you can find a way out depends largely upon finding an exception to the rule.

Sunday, April 15, 2012

Grand Theft Case Reversed on Appeal

Not many cases are reversed on appeal, this case is one exception.  Though not a DUI case, Mojave DUI Lawyer, Bruce Blythe felt it was important enough to publish given the recurring nature and frequency of this type of case in California. The defendant in the case stole the victim's purse, which had $700 cash in it. At the time, California law said that it was grand theft if the amount stolen was more than $400. The defendant was convicted and he filed a notice of appeal. While the appeal was pending, the grand theft laws in CA (PC 487(a)) was amended, increasing the amount required for a grand theft to $950. Does this defendant get the benefit of the change?  The Court said yes. Indeed, statutory changes favoring a defendant apply so long as the defendant's conviction isn't final.  People v. Wade; C/A 1st, Div. 5.

Sunday, April 1, 2012

Can the Police Stop a Car With a Temporary Registration Tag?

Here is the scenario: Police run a DMV check on a car they are following and learn that it is two years out of registration. But the car has a temporary permit affixed to the rear window. Can they make a traffic stop?
According to the Second District Court of Appeal, the answer is “yes.” Regardless of whether the vehicle bears a temporary permit, a DMV check showing expired registration provides sufficient grounds to stop the car and detain its occupants.  In the words of the appeals court:  “An innocent explanation for a possible registration violation,” The court concluded the fact the car had a tem sticker “does not preclude an officer from effecting a stop to investigate the ambiguity.”  According to the court, “The question is not whether defendant's vehicle was in compliance with the law, but whether [the officers] had an articulable suspicion it was not. . . . The DMV record showing expired registration provided the required articulable suspicion there was something amiss with the registration and justified the vehicle stop for Fourth Amendment purposes.”
Attempting to reconcile the recent number of cases on this topic, the court distilled the following rules: 1. “In the absence of other incriminating or ambiguous evidence,” a vehicle displaying a valid temporary permit and no license plates may not be stopped; 2. “If the officer does not see the temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop;” 3. “A vehicle with expired license tabs, but displaying a temporary permit, may not be stopped if the officer has additional information that there is an ongoing process to cure the lapse in registration;” 4.  “A vehicle displaying a valid temporary permit may be stopped where there is some objective indicia that something may be amiss with the registration or permit, such as a missing front license plate; “ 5. “a vehicle displaying no license plates and no temporary permit visible from the rear may be stopped for investigation;” and, 6. A vehicle that the DMV says is not registered but nevertheless displays a temporary permit may be stopped to “investigate the ambiguity” concerning its registration.
It is certainly interesting to compare the Court's legal analysis with the reason the officer actually gave for the stop. He thought a temporary permit authorized driving to and from a smog check only. The court noted that “We do not decide this case based on Officer Moon's subjective belief the temporary permit only allowed the vehicle on the road for the limited purpose of obtaining a smog check—a belief that apparently has no basis in law.”

Wednesday, March 28, 2012

California Driving on a Suspended License FAQ

There are a substantial number of ways the California Department of Motor Vehicles can suspend or revoke your driver's license. This means either the DMV or the court has decided that you are NOT allowed to operate a motor vehicle until the suspension or revocation is lifted and your license is reinstated.  Many drivers are told, either by a police officer or a letter in the mail, that their license has been suspended. WHY WOULD YOUR LICENSE BE SUSPENDED?

Here are the main reasons your California driver’s license could be suspended:
1. No Insurance. If you're not insured and get in an accident, your driver's license will be suspended for four years. After one year, it may be returned if you provide proof of insurance to the DMV, and maintain it for the next three years.
2. Failure to Report an accident.
3. Driving under the influence (DWI) conviction. California has some of the toughest DUI laws in the country, and your license will be suspended for six months upon your first conviction. You may petition for a restricted license in some cases (such as when you have a critical need such as work or school). A second and third drunk driving may cause you to lose you your license for two to four years with no ability to drive at all except with an ignition interlock installed on your vehicle.
4. Underage drinking (Zero Tolerance). You'll lose your driver's license for one year or until you turn 18, whichever is later.
5. Failure or refusal of a drug or alcohol test. California's implied consent laws mean that if you refuse a blood, breath, or urine test to avoid getting a drunk driving, your license will be suspended or revoked even if you're innocent of the underlying DUI.
6. Excessive points on driving record. If you have too many points, the California DMV will put you on driving probation for one year, including a license suspension for six months, or revoke your driver's license altogether.  There are ways to fight the points suspension with a hearing requested within 14 days of the notice.
7. Vandalism. Your driver's license will be suspended for one year. If you're too young to drive, your right to apply for a driver's license will be delayed by one year.
8. Failure to appear in court for traffic ticket. This is known as an FTA hold or suspension. If you neither show up nor pay the fine on time, the court will report your failure to appear to the California DMV, and your license may be suspended pending your handling of the ticket.
9. Failure to pay Child Support.  Unfortunately, the only way to get this type of suspension removed is get current on your support payments.

HOW CAN I GET MY LICENSE BACK?
The steps you take to get your license back depend on the reason(s) it was suspended. The following are common reasons and examples of what you might need to do:
If you were convicted of drinking under the influence or drunk driving, DWI:
1. Complete a Mandatory Suspension Period: On the first conviction the court will suspend your driving privilege for six months and require you to complete a DUI program before you can be reinstated.If the DUI occurred in Los Angeles you may be required to have an ignition interlock installed on all vehicles you own or are registered to your address.  If your Blood Alcohol Level (BAC) was .15% or higher and you already had a record of violations for other reasons OR you refused to submit to a chemical test, the court may order you to complete a nine-month or longer program. If your BAC was .20% or higher and the court refers you to an enhanced DUI treatment program, your license will be suspended for 10 months.
2. Pay a Re issuance Fee: Your driver license will be returned to you at the end of the suspension after you pay a $125.00 reissue fee to the DMV and file a Proof of Financial Responsibility (SR-22). The reissue fee is $100.00 if you were under age 21 at the time of violation and were suspended under the Zero Tolerance Law.
3. DUI Treatment Program: Show Proof of enrollment in DUI Treatment Program and a Certificate of Completion (DL-101) once completed.

If you had a physical/mental condition or disorder:
Provide a satisfactory Driver Medical Evaluation (DS-326) and/or other medical information indicating the condition no longer affects the ability to operate an automobile safely.
If you had no car insurance and were involved in an accident:
Complete the mandatory 1-year suspension and pay the re issuance fee of $125.00. File a Proof of Financial Responsibility (SR-22).
If you failed to pay a traffic citation or failed to appear in court for traffic ticket:
1. Pay your citations or appear in court. You will be given an FTP/FTA abstract that says you fulfilled this requirement from the court. 2. Pay the standard re issuance fee of $55.00 (in rare cases it be could as high as $275.00) to the DMV.
WHAT IS AN SR-22?
If your license was suspended for a DUI, getting into a car accident while driving without car insurance, or other similar reasons, you may be required by state law to purchase additional insurance coverage. SR-22 is a form that the insurance company then files with the DMV after you purchase the additional coverage. The insurance company must be licensed by the California Department of Insurance. If you are unable to obtain additional insurance coverage through a licensed insurance company, then check with your state's insurance regulator (California Department of Insurance 1-800-927-HELP) to assist you.  In cases such as DUI and points, a California Attorney can help you to resolve your license issues.

HOW DO I GET A RESTRICTED LICENSE?
Depending on the reason(s) for your suspension, you may be able to obtain a restricted license, which will allow you to drive in to limited places while your license is suspended. For drunk driving, if you have a non-commercial driver license and you show proof of enrollment in a DUI treatment program, you may be able to get a restricted license after a mandatory 30-day suspension to drive to and from the DUI treatment program and/or work. If you qualify for a restricted license, you still need to meet the other requirements and pay a $125.00 reissue fee or $100.00 if you were under age 21 at the time of violation. You can apply for a restricted license in person at your local DMV office.
You can contact the California Department of Motor Vehicles at (800) 777-0133 during normal business hours for the location of the your local DMV and for more information about your particular situation. Please have your driver’s license number and any other information sent to you from the DMV available.
(Courtesy California Courts)

Monday, March 12, 2012

Can You Get A DUI on Private Property?

Many folks arrested for drunk driving are found off the highway, often on some private lot or property.  The question arises whether the law requires that the driver be on "the highway" or public property in order to be in violation of VC 23152 DUI.  According to Matthew Ruff, a DUI Attorney in Torrance the Courts settled this issue finding that a private property arrest is perfectly OK.  The Court said: There is no question that the drunk driver is an "extremely dangerous" person who obviously poses more danger when he or she drives on public streets and highways and encounters the general public in greater numbers. However, regardless of any subjective legislative intent, the objective intent of the Legislature as derived from the language of the pertinent Vehicle Code provisions is that a person who is driving while under the influence of alcohol and/or drugs is always a threat and the purpose of DUI statutes is to prohibit those "extremely dangerous" persons from driving anywhere in California.

Saturday, February 18, 2012

Starting in 2012, DMV Can Revoke a License for 10 Years on 3rd DUI

New legislation has authorized the California DMV to revoke a drivers license for 10 years upon a 3rd DUI conviction.  The new law authorizes a Judge to order the revocation in appropriate circumstances, but the revocation will not be automatic.  If the Court does not make the order, the DMV will not take action.  Currently, the revocation is for 3 years, which will be the default period unless the Court makes any additional orders.  If the revocation is imposed , after 5 years the licensee can apply for an early restriction with IID and proof of completion of a DUI school.  California is not the first state to impose such a harsh penalty.  Those facing a third DUI should consult a lawyer to familiarize themselves with other penalties and California DUI laws in general.

Friday, February 17, 2012

How Does a DMV Hearing Work in a California DUI Case?

A DUI arrest inevitably leads to the imposition of a suspension of the driver's license in California.  In order to challenge any suspension the driver must request a DMV hearing to fight the action. In a DMV Administrative Per Se hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. The DMV may satisfy its burden of proof by using the presumption of Evidence Code in section 664. Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence, such as testimony of the arresting officer. With this presumption, the officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test.

According to Bruce Blythe, a Bakersfield DUI Attorney, Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. The licensee must show, “through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed. Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.  The failure to shift the burden back to the DMV will invariably result in an upholding of the suspension.

Sunday, February 12, 2012

California Fills In The Gap For Second Offense Wet Reckless

Thank goodness the legislature finally changed the law regarding second offender wet reckless convictions.  Prior to 2012, anyone convicted of a second offense DUI could get a restricted license for work after 90 days.  However, if the offense was reduced to a wet reckless the offender had no such option and had to wait a full year.  Finally, the lawmakers realized the injustice and inequity of the law and made the appropriate amendments.  The frustration of many attorneys was off the charts and no remedy was available other than to go back to Court and plead guilty to a full DUI.  It took the state a full year to rectify the laws and fix the inherent problem. How a law can become so convoluted and unfair is yet another sign of how Sacramento always leans towards greater punishment rather than leniency and fairness.