New DUI Laws. What's Ahead For California?

Mandatory jail for first offenders?  Lifetime revocation of you license for any second DUI offense?  10 year mandatory IID for all convicted drunk divers?  These are all being considered by the current lawmakers in the great state of California.  While these draconian measures may seem far fetched, they are on the wish list for many groups advocating for stiffer sentences and punishments for all drunk drivers in this part of the country where drinking and driving is still not regarded as a serious crime.

Currently, the state senate has many bills brought and written by MADD that all mandate that any DUI remain on the driver's DMV record for life.  This means that insurance companies will see the conviction and punish the defendant for all his life.  The bills are winding their way through the legislative process with few groups opposing them with the exception of California DUI Attorneys and some civil liberty groups.  In 2014 we will certainly see some change, it remains to be seen how far the state will go.

Facing Mandatory Jail for a DUI? Consider Pay To Stay

It is an unfortunate fact of life in California, if you are convicted of a DUI as a second or third offense you a looking at the real prospect of a stint in the county jail.  With this in mind, it may be wise to consider the various "pay to stay" programs offered in Los Angeles and Orange County.  These programs offer a defendant the opportunity to avoid going to county jail.  Why is this such a big fear?  Maany believe that the county jails are much more dangerous that the alternatives, particularly in metropolitan L.A. where gang violence is rampant and racial tensions are high.

Before starting the process there are many considerations.  First, can you afford the paid city jail options?  The cost of most facilities is at least $100 a day with some charging as much as 200 or more.  Second, you must submit to a TB test and have good general physical health.   Once you have been approved and paid the requisite fees you can start your time.  You will likely be given your own cell away from the general population.  You will be doing light work, such as washing police cars or cleaning the building,  and have much more freedom of movement than the other incarcerated persons.  Most jailers will give you additional privileges such as unlimited use of a phone, computer, internet and television. 

It would be great if everyone could afford private jail but they can't.  In the coming editions we will provide a list of the cities that offer this jail alternative.  In addition to DUI cases, the programs allow the private option where the case is non-violent and you have no extensive criminal record.

Facing A License Suspension Following an APS Hearing? What You Can Do To Drive To Work

For many, the thought of a license supension in California can be terrifying.  The DMV is completely heartless and unsympathetic to your plight as it relates to your job, your family, keeping your home, etc.   There are immediate steps you can take to keep a provisional license after an unfavorable DMV APS hearing. 

The law does allow for a restricted license if you meet the following conditions:  1.  You are a first offender and have no past suspensions for any DUI related administrative sanctions,  2.  You must have taken a test and not refused.  3.  You must be over 21 and not on any form of DUI probation from any Court.   As long as you comply with the restriction conditions you can keep your license after a short 30 day period.

In addition to the foregoing, you must also get an SR-22 proof of insurance, get enrolled in the AB541 first offender alcohol program and pay all applicable re-issue fees, usually $120.

Impossible to Get a Search Warrant in California For a Blood Draw? Not So Says A Long Beach DUI Attorney

Recently, in a United States Supreme Court case, the government argued that obtaining a search warrant for a blood draw of a DUI suspect was difficult to do withing the context of a drunk driving arrest.  However, in California a system is alreadfy in place to get a telephonic search warrant.  As an alternative to written affidavits California Penal Code 1526(b)(1) permits sworn oral statements that are subsequently transcribed. For example, the affiant may phone the magistrate, state probable cause, and obtain the magistrate’s verbal authorization to sign the latter’s name to the warrant under the Penal Code in the state. The resulting warrant is the so-called telephonic (or, more accurately, telephonically authorized) search warrant. The expression “telephonic search warrant” can give rise to the erroneous impression that the warrant itself is oral. All search warrants must be in writing. The only thing different about a telephonic warrant is that the affiant signs the magistrate’s name to a duplicate original search warrant.  This makes sense and allows for adequate protections in the remote context.

According to one Long Beach DUI Attorney, the CA Judges Benchguide offers detailed instructions to Judges on duty after hours and on weekends when the Courts are closed.  The statutes do not mention statements by the affiant over the telephone, but have been interpreted to permit them. The procedure is constitutional. No special circumstances need be shown for issuing a telephonic warrant.  Indeed, in Los Angeles County all telephonic search warrants are obtained through a District Attorney Command Post. Under this process, if the deputy DA believes the case is appropriate for a telephonic search warrant after talking with the affiant, the command post investigator sets up a conference call between the affiant, deputy DA, judge, and investigator (who runs the recording equipment). Courts may have different procedures. The following is an example adapted from various counties.  The affiant’s statement must be recorded. The judge should be sure to record the conversation, check that the equipment is switched on and operating. If the affiant is recording the conversation, the judge should ask whether the recording equipment is turned on.  These procedures ensue an adequate record on review.  There can be no doubt that the implementation of the current procedures can be re-tooled to allow for blood draw search warrants for DUI suspects on the roadside or at the police station after arrest.

Is a Citizen's Arrest in California for DUI Legal?

In California, a police officer is not the only individual that can effectuate an arrest for a DUI.  A citizen’s arrest for DUI is proper when based on the citizen’s observation that the defendant was driving under the influence; in so doing, the citizen may delegate to a peace officer the act of taking the defendant into physical custody. This authority is vested in CA Penal Code 837.   For example, in one recent case, the Court ruled a citizen may make arrest for misdemeanor committed in his or her presence Johanson v Department of Motor Vehicles (1995) 36 CA4th 1209,  Also in another appellate court case, the Justices opined, a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, called 911 and a police officer and reported his observations to officer who made arrest,  and in another published California DUI case, the Court found, an inspector of Department of Food and Agriculture who stopped defendant’s vehicle at inspection station, observed defendant was intoxicated and reported observations to highway patrol officer who arrested defendant.  The bottom line is that a suspected drunk driver cannot escape liability because the person making the contact was not law enforcement.

DUI Drivers Targeted This July 4th

July 4th weekend 2013 promises to be a banner holiday for law enforcement, the state of California has earmarked over a million dollars to checkpoint utilization and enforcement, saturation patrols will make up the remainder of the budget.  Los Angeles County alone has implemented a task force approach will will involve numerous city police agencies and a mobile phlebotomist who will be available to collect samples from DWI suspects for DMV and Court purposes.  The Torrance police alone have publicly stated that it will be on high alert status with its close proximity to the beach areas .  Redondo Beach and Hermosa both have announced a "zero tolerance" to those driving under the influence and has set aside additional resources to deal with the high number of anticipated arrests.

Can a Commercial Driver Survive a Second DUI?

It used to be that a DUI for a commercial driver in California would simply result in a short suspension and a return of the drivers license after a period of one year.  This went on for decades.  Not that a 1 year suspension was a walk in the park, but it was tolerable for most drivers.  In the last decade, however, the feds stepped in and announced that any commercial driver who suffers more than one conviction for a DUI or driving with a .08 or higher would be banned for life from ever driving a big rig or other commercial vehicle.  A lifetime revocation is now in full force and effect for any driver who may ever expect to drive for a living.  California DUI laws now demand that the life bar be imposed by the CA DMV.  So, what does a driver do?  Well, the best thing is to hire a lawyer who can fight the DUI and possible negotiate a lesser cahrge such as a reckless driving.