Sunday, September 28, 2014

What Is A Wet Reckless?

California is a state that has very serious consequences for dui and drunk driving offenses.  However, there are various reductions from the original charge that can mitigate the punishment and long term effects that flow from the charge of VC 23152 or driving under the influence.

The most common of these reduced charges is that of VC 23103.5 commonly referred to as a wet reckless.  This is not a substantive offense, that is that you cannot be charged with wet reckless, it is a creature of statute that allows a DA to reduce the case to a lesser offshoot of reckless driving or VC23103. It is called a "wet" reckless because the Court makes a finding that it involved alcohol or drugs which makes it priorable.  This means it can be used to enhance a future DUI crime into a second offense down the road.

The benefits of a wet reckless are numerous.  For one, the DMV will not require you to install an ignition interlock on your car after conviction.  Two, the DMV will not require an SR22 filing.  Three, the Court does not require the completion of a 3 month alcohol class.  Four, the fine is about half of what the full DUI fine turns out to be.  Finally, the case can be expunged much sooner than a driving under the influence conviction.

In the final analysis, a wet is always better than a full fledged DUI for many reasons.  According to one Torrance DUI Attorney, the wet reckless can also save the driver from losing their commercial drivers license.  You see, a VC23152 can result in a one year suspension if convicted in Court, the same does not apply for a VC 23103.5.

Friday, September 19, 2014

Surviving A DUI Conviction In California

The aftermath of a guilty or no contest plea to a VC 23152 driving under the influence charge should not be viewed as the end of the world or a "my life is over" kind of a moment.  Indeed, a criminal conviction is in fact serious and no one can say it is a trivial matter however it is not as life changing as many folks make it out to be.  First of all the crime is a misdemeanor, not a felony, and under CA law this has major ramifications.

  1. You DO NOT lose your right to vote for a misdemeanor. 
  2. You DO NOT lose your right to own or possess a firearm.
  3. You DO NOT automatically lose your right to get governmental benefits such as social security, student loans, welfare and the like.
  4. A misdemeanor can be dismissed and expunged after successfully completing probation.
In most cases, a plea to a DUI results in the imposition of sentence being suspended and the defendant given informal probation.  This means that they can return to Court once probation has ended, ask the judge to withdraw the plea and have the case dismissed.

At the end of the day the disposition can often be written off as youthful indiscretion and will not be given any significant weight if the person has otherwise lead a law abiding life.

Monday, September 15, 2014

Dealing With Emergency Response Costs For a DUI Arrest

Many people get bills from the arresting agency after their arrest for DUI and the question becomes, do you have to pay it?  The answer requires one to look at the specific facts involved in their individual case.  The answer is yes if two elements are met 1.  The person must in fact be guilty of driving under the influence, and 2.  There must be a "response" to a DUI related emergency.  In short the government must prove these two acts before the requirement to pay becomes legal.

Assuming the conditions are met, what are legitimate costs?   First, California law does allow police agencies to recover costs associated with an "emergency response" to a DUI related incident.  Courts have given broad meaning as to what constitutes a recoverable cost, for example, one recent case found that,   An “appropriate emergency response” to an incident includes the cost of providing police services at the scene, including, among other possible items, salary costs related to ensuring public safety at the scene of the incident, obtaining appropriate medical assistance, removing vehicles, investigating the cause of the incident, conducting field sobriety tests, and if appropriate arresting and detaining the subject.

Reimbursement may also be obtained for time spent away from the scene by responding public agency personnel, provided the response is reasonable and arises from the incident.   Thus, for example, salary costs may be recovered for time spent traveling to and from the scene, transporting the subject from the scene, booking the subject, performing chemical tests, writing customarily required reports (including all accident and DUI-related reports that must be completed as a consequence of the incident), and performing follow-up investigation necessary to complete the reports.   The case is Allende vs. CHP.

But what about costs associated with a simple stop for a non-accident, say where the driver was pulled over for not using a turn signal and that evolved into an arrest.  In this instance, the law may not allow the city to get reimbursed for the officers time.  Bottom line, if an accident occurs where there is a collision with some other vehicle or object and the police are dispatched out, you may be on the hook for payment.  This does not mean that you cannot negotiate with the agency for settlement.  I advise people to send a letter responding to the request, disputing payment of the amount first.  Then, state that you are offering a reduced amount as an accord and satisfaction of the disputed debt.  Write "payment in full" on the check and send it along with the letter.  Write "please see attached letter" somewhere on the check.  A good target for compromise may be 50 percent of the requested amount but you are free to negotiate whatever amount you wish.

One final thing.  In the event you do nothing they may pursue the claim in civil court, it has no bearing on the criminal case and you cannot be arrested for non-payment.  However, they may refer the case to collection and hound you for payment.

Thursday, September 11, 2014

Got GERD? A Blood Test May Be The Better Choice If Arrested For DUI

In California breath testing is a choice you have if you are arrested for DUI, but what you do not know about how the machine and people with certain medical conditions can hurt you.  You see, most breath testing devices are prone to false positives when the subject has an ailment known as gastro esophageal  reflux disorder or GERD for short.  The condition causes stomach contents to ruminate up into the airway and dissipate through the mouth, when a person is administered a breath test any remnants of alcohol in the stomach can flow up through the air pipe, and enter the machine, mixing with alcohol already in the blood coming from the lungs and exaggerating the blood alcohol concentration of the subject.

The basis of the GERD defense in DUI cases is that the subject is leaking alcohol from the stomach up into the airway where it will be analyzed by the breath  machine and report a false high BAC concentration.  As such, it is imperative that the individual actually have raw alcohol in their stomach which necessarily implies recent drinking.  In short, if the subject stopped drinking alcohol more than 5 hours before the test, there will be no issue.  In addition, criminal prosecutors will argue that the machine will detect this condition and void the test.  This is simply wrong.

The scientific community has addressed this issue with mixed opinions about the affect, if any, it has on ethanol concentrations for DUI suspects.  One study coming out of Australia concluded the medical condition renders anyone with GERD as not a good candidate for breath tests and should be offered blood instead.  The Wells and Farrar study was overshadowed in recent years by a study conducted by A.W. Jones who asserted that GERD was a non issue in breath testing within the context of drunk driving and as long as the safeguards inherent in the regulatory schemes are followed, such as a deprivation period, observation by the arresting officer, etc.  then a person with gastric reflux is ok to give breath.

Many in the legal and scientific community disagree with these conclusions and urge the state to do more testing and add additional steps to the breath testing process such as inquiry into whether the suspect has the condition which would allow them to choose blood where appropriate.  Whatever the law chooses to do about the issue, it remains clear that enough doubt does exist to cause concern about whether a GERD patient is truly getting a fair shake in the criminal justice system.

Saturday, September 6, 2014

Is Miranda Still Alive In DUI Cases?

California has slowly whittled away at the requirement that cops read a suspect his Miranda warnings in DUI cases.  This week, the Cal Supreme Court shed more light on when rights are required in a criminal case.  The case is People vs. Tom and here are the facts and decision:

Tom was speeding down a street and broadsided another car that was making a left turn in front of him. One person in the other car was killed and two others were severely injured. He was arrested after several officers smelled alcohol on his breath. At trial in its case-in-chief, the prosecution relied on evidence that Tom failed to inquire about the welfare of the occupants of the other car after the accident as evidence of his guilt. Tom was convicted of gross vehicular manslaughter and an allegation that he inflicted great bodily injury was found true. The Court of Appeal reversed the conviction, finding that the use of Tom's postarrest, pre-Miranda silence violated his Fifth Amendment rights. The prosecution's petition for review was granted. Held: Reversed. The issue of whether the Fifth Amendment bars the government from offering evidence in its case-in-chief of a defendant's postarrest, pre-Miranda silence in the absence of custodial interrogation has not been decided by the California Supreme Court or the United States Supreme Court, and there is a split of authority on the issue in the federal circuits and among other state courts. The court declined to decide the issue in this case. After discussing the holdings in a number of cases, the court held that a defendant who wishes to bar use of postarrest, pre-Miranda silence that occurs in the absence of custodial interrogation must clearly and timely invoke the Fifth Amendment privilege; it is not self-executing. The threshold inquiry is "whether a reasonable police officer in the circumstances would understand that the defendant had invoked the privilege either at or prior to the silence at issue." The exception to the objective invocation rule that applies when a suspect is subjected to custodial interrogation without Miranda warnings does not apply when a suspect is merely arrested, but not interrogated. The case was remanded to allow the Court of Appeal to determine whether Tom clearly invoked his Fifth Amendment privilege and, whether pre-Miranda silence was admissible under the Evidence Code.  (CCAP)

Tuesday, September 2, 2014

Your Options After An Adverse DMV Hearing Decision

California has some of the toughest laws in the nation for DUI and drunk driving related offenses and the consequences with regard to a drivers license are equally harsh.  The state does however allow an accused driver to request a full hearing in order to challenge the loss of a driving privilege.  These proceedings are referred to as an APS hearing (Administrative Per Se)

 At the hearing the licensee can present evidence to rebut the 3 main issues at the heart of any excessive BAC action: 1.  Was the person lawfully arrested  2.  Did the officer have reasonable cause to believe he or she was under the influence while behind the wheel.  3.  Did the driver have a blood alcohol level of .08 or higher while the vehicle was moving?

The licensee or lawyer can indeed offer evidence to show the ethanol level was incorrect or that the officer violated the rights of the suspect's fourth amendment rights such as an illegal search or traffic stop/detention.  If the respondent does manage to overcome the presumption of a suspension then the DMV must vacate or set aside the suspension pending against him.  According to Bruce Blythe, a Bakersfield DUI Lawyer , the chances of prevailing at such a tribunal are less than one in one hundred if there is no attorney.  With a legal advocate, the chances increase dramatically.  In fact, one recent report released by the state proclaimed that winning an APS hearing in pro per is about as likely as winning the lottery.

As is the case with many of these proceedings, the hearing officer will sustain the action, making positive findings on the three issues discussed previously.  When that occurs the driver has multiple options which we will discuss at length.  There are essentially 3 options available:
  1. The licensee can accept the ruling that was rendered and apply for a restricted license thereby allowing the individual to drive to and from work and during the course and scope of employment.  This option permits the person to move on with their life and end the stress and anxiety the process has caused them.
  2. Appeal the decision internally through the DMV administrative review process.  This option requires the driver to pay a fee to the Department of Motor Vehicles and file paperwork contesting the decision.  This procedure is handled by a separate division of the DMV and takes anywhere from 2 to 6 weeks.  It is helpful if a detailed points and authorities is also filed, laying out the error that is alleged and proposing a legal remedy.
  3. Appeal the finding in the Superior Court of California.  This process is referred to as "filing a writ"  and in essence is a lawsuit filed against the government for abuse of discretion.  A writ requires paying a filing fee with the Court and almost always requires the assistance of a lawyer due to the complex number of rules.  Many lawyers assert that this is sometimes a very risky alternative because if the writ is denied the defendant can be on the hook for the State's attorneys fees and costs which can be substantial.  This option is also very time consuming and can often take several months to get a decision while the suspension stays in effect.

At the end of the day, choosing which rote to take will be easier with the counsel of an experienced lawyer who can guide and advise the person of the pros and cons in any particular case.