Monday, November 24, 2014

How To Get Your License Back After A DUI In California



California has the unenviable reputation of confiscating the most licenses from drivers after a DWI incident.  Torrance has one of the highest rates of conviction for driving under the influence in Los Angeles County.  As if the arrest for DUI wasn't bad enough, the frustration in dealing with the DMV in order to get your license reinstated can be even more traumatic.  Remember, the police officer probably took your physical license from you at the time of arrest and you were issued a "temporary license" that you have been driving on since your release.  That temporary license did not have your photo and many entities will not accept it as a valid form of ID. This article is written to provide critical information necessary for a person to get their official photo license returned following a driving under the influence resolution in Court.  

Here is the step by step process to follow to get your drivers license from the California DMV after the 30 day "hard" suspension and a disposition in Court:
  1. Get enrolled in the DUI school ordered by the Court.  Take your paperwork from the Court to your chosen class and make sure they file the correct form with the DMV, they will sometimes give you the official form which you can file yourself, but you are paying them a fee so they should do it for you.  If you are a California resident you should confirm the class satisfies the requirements of the DMV. If you are a non-CA resident be sure to speak to your attorney about the options you have. Make sure the program also files the enrollment certificate with the Court as well. You must do this within 21 days of the resolution in Court so do not delay.
  2. Make sure you have an SR-22 filed with the DMV.  An SR22 is nothing more than an official proof that you have the minimum required proof of insurance mandated by the DMV.  You cannot simply send in the little card you got from the insurance company, that will not be sufficient.  The proof must be sent in by the insurance company in order to comply with CA law.
  3. If the offense occurred in Los Angeles County you must install an ignition interlock device in your vehicle.  The DMV will check to verify the ownership of any vehicles registered to you or any person at the home in which you reside and have access to.  If you do not own any vehicles, use any vehicle or have access to any car at the residence there is a waiver which you can fill you and send to the DMV, but the State will not reinstate your license unless and until you install an IID in a vehicle you drive
  4. You must pay a re-issue fee to the California Department of Motor Vehicles.  This fee  ranges from $140 to $240 dollars and must be submitted in order to receive your original license.
  5. Ensure you have no outstanding tickets or "holds" on your license such as tickets you never paid or any FTA or failure to appear.
You must understand that this information is based on the criteria that the driver has no prior convictions for driving under the influence and has no prior administrative suspensions by the DMV for under 21 alcohol offenses.  If you still have a DMV hearing pending you must cancel it otherwise the Department will not consider reinstating your privilege.

Tuesday, November 11, 2014

Are You Safe From a DUI Arrest In Your Home?

 
While it is true that most DUI arrests take place on city streets, many do occur in the home. Many believe the police cannot arrest a person for a DUI if they are in their own home.  While this is generally true, the Courts have allowed the police to enter a person's home even without a warrant if there is probable cause to believe the person recently drove and is DUI. The most basic evidence the police need to arrest someone in their own home for DUI is to prove the person drove within 3 hours of arrival and did not consume any alcohol or drugs once they got home.

The seminal case on the subject is Welsh, a US Supreme Court case that ruled a search of a home for a DUI driver was illegal.   In Welsh v. Wisconsin (1984) 466 US 740, the US Supreme Court ruled that the Fourth Amendment was violated when an officer made a warrantless entry into a residence to arrest a DUI suspect.  Apparently though is Wisconsin the law treats DUI as a ticket which carries only a fine as punishment. Unlike Wisconsin, California treats DUI as a criminal offense, subject to fines and mandatory incarceration. This distinction was relied on by the California Supreme Court to find that a warrantless entry to arrest a recent DUI suspect did not violate the Fourth Amendment.

There have been more recent California cases which allow warrantless entry in a home for DWI suspects.  We will discuss these cases and the current legal trends in future articles.

Matthew Ruff is a DUI Lawyer in California, he can be reached at 310-527-4100

Sunday, November 9, 2014

Court Rules Police Can Search Regardless Of Marijuana Prescription

Acting on a tip from an informant and surveillance evidence, police officers obtained a warrant to search the garage of Clark's residence for evidence of a marijuana grow. Officers seized marijuana plants, cocaine, and a shotgun. Clark filed a motion suppress the evidence, arguing that his cultivation of marijuana was legal under the Act and that there were no facts presented in support of the search warrant that the cultivation was illegal. Following the denial of the motion, Clark entered a plea of guilty. On appeal, Clark argued that the trial court erred because the Act imposes an affirmative duty on investigating law enforcement officers to inquire about a suspect's status as a qualified patient or primary caregiver.  This criminal case will be viewed very closely by many DUI attorneys representing those accused of possession of pot in this state.

The Court upheld the decision. While the Act provides a defense at trial, it does not grant any immunity from arrest that would require reversal of a conviction for possession or cultivation of marijuana whenever law enforcement officers fail to conduct an adequate investigation of the defendant's status as a qualified patient or primary caregiver prior to his or her arrest. Given the holding of Mower, the court here concluded that the Act cannot be interpreted to impose an affirmative duty on law enforcement officers to investigate a suspect's status as a qualified patient or primary caregiver under the Act prior to obtaining a search warrant. Motions and trials are used to investigate the truth and legal effect of the medical marijuana defense provided under the Act. The facts in the search warrant affidavit provided sufficient probable cause to search Clark's residence, and the suppression motion was properly denied.  According to a DUI Lawyer in Bakersfield, this case presents many questions as to how far judges will allow police to go when they are legal to possess marijuana in California.  

DUI Excluded From New Legislation

Prop 47 brings good news to many criminal defendants but the news is not helpful to DUI offenders.  Prior to Proposition 47's amendment to section 666, subdivision (a) allowed a petty theft conviction to be punished as felony only if the defendant had been convicted three or more times of specified crimes and had served a term for the offense in any penal institution or had been imprisoned therein as a condition of probation. Former section 666, subdivision (b) allowed a petty theft conviction to be punished as a felony when the person had been convicted of only one of the enumerated offenses (with the same imprisonment requirement) if the person was required to register or had previously been convicted of ANY serious or violent felony. The newly amended version of section 666 allows a petty theft conviction to be punished as a felony if the defendant (1) has been convicted of one of the specified crimes and incarcerated for the offense and (2) is required to register under CA law has a prior violent or serious felony conviction under section 667, subdivision (e)(2)(C)(iv), or has a section 368, subdivision (d) or (e) conviction.

Though not helpful to DUI offenders with prior convictions, The eligibility requirements for misdemeanor punishment in amended section 666 differ from the other statutes affected by Proposition 47. The other statutes provide that the offense at issue will be punished as a misdemeanor unless the defendant has one or more prior convictions for an offense specified in Penal Code section 667, subdivision (e)(2)(C)(iv) or an offense requiring registration under Penal Code section 290. In contrast to this, amended section 666 states that petty theft with a prior may only be punished as a felony if the above requirements are met. The nature of prior convictions permitting felony treatment is both narrower (prior conviction of only a certain class of serious or violent felonies elevate petty theft to felony level) and broader (any person required to register under SORA and any prior conviction of section 368, subdivision (d) or (e) (which is not a serious or violent felony) elevates petty theft to a felony). Rather than only excluding defendants who have one or more prior convictions for an offense requiring registration under section 290, amended section 666 excludes defendants who are required to register pursuant to SORA (Pen. Code, §§ 290-290.024). There may be cases where a defendant is required to register under SORA based on an offense that is not listed in Penal Code section 290. 

New California Law Makes Many Felony Crimes a Misdemeanor, Not DUI

The On November 4, 2014, California voters passed Proposition 47, which enacts the Safe Neighborhoods and Schools Act. It reduces a number of low-level theft and drug offenses to straight misdemeanors unless the defendant has specified prior convictions. The statute focuses on drug and theft crimes, unfortunately DUI was not part of the law changes.  Voters obviously sounded off loudly about the prison overcrowding and this will work to reduce those incarcerated. 

Saturday, November 1, 2014

Can The Police Stop A Car For Driving Too Slow?

Many DUI cases begin with a traffic stop for violating the vehicle code.  In any case where the defendant asserts the police stopped him without legal cause the people have the burden of showing the warrantless seizure and search of the defendant was justified .  See People v. Williams (1999) 20 C4th 119, 83 CR2d 275; Wilder v. Superior Court (l979) 92 Cal.App.3d 90. The people have offered evidence that the initial seizure of the defendant, which lead to the unlawful search of her person and effects and subsequent arrest for DUI was justified by a violation of CVC 22400 (a) or driving too slow.

CVC 22400 (a) states:
No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.

CVC 22400 (a) clearly states no person shall stop “so as to impede or block normal and reasonable movement of traffic...” implying there is no violation of CVC 22400 if there is no impediment to traffic flow. The court need only look at the plain language of the statute to see the code section is meant to prohibit conduct which impedes traffic flow. Where there is no traffic flow on a roadway, it would be impossible to violate CVC 22400 because an essential element of the illegal conduct is missing.

Looking to case law interpreting the meaning of CVC 22400(a), in Shannon v. Thomas, 57 Cal. App. 2D 187, a California appellate court with binding authority specifically refused to hold, as a matter of law, that someone pushing a car on a public road in the dead of night constituted a violation of California's minimum speed law. [The Shannon case examined CVC 549, which was the predecessor to (and substantially similar) to CVC 22400.] The court held “we are impressed that it was for the jury to determine whether appellants in pushing their automobile on the highway in the manner they did, impeded or blocked the normal and reasonable movement of traffic at three o'clock in the morning...” A factor weighing on that court's decision was the time of night and the lack of traffic at that time. This analytical approach would be favorable to the Defendant before the court today, whose conduct occurred on a desolate road with little to no traffic late at night. No other California cases directly address CVC 22400, but persuasive authority interpreting the phrase “impede or block normal reasonable movement of traffic..” can be found in our sister jurisdictions. People v. Beeney 181 Misc. 2d 201; 694 N.Y.S.2d 583; 1999 N.Y. Misc. LEXIS 299, held:

...the dispositive factor when determining whether slow speed is a violation or may serve as reasonable articulable suspicion for a stop) is its effect upon other drivers. In other words, whether the slowness impedes traffic so as to pose a real danger to other motorists, as opposed to potential danger or temporary inconvenience.”

The reasoning in the Beeney adds compelling weight to the Defendant's argument that CVC 22400 simply was not and could not be violated on a roadway with no other traffic because there could not have been a impedement to other motorists if there were none there. The Beeney court looked to similar holdings from Pennsylvania, North Dakota, Michigan and Illinois.