Blood testing in Kern County is done by the Criminalistics Laboratory and reported to the various law enforcement agencies. The blood sample is collected using the kit depicted in the above video. These kits are carried by CHP and other police agencies. Once the sample is obtained it is transported to the lab and tested. The testing process takes one to two weeks, however the resu.ts often are not reported for a couple months due to the backlog in resources and staff.
Saturday, November 12, 2016
Blood Test For DUI In Kern County
Blood testing in Kern County is done by the Criminalistics Laboratory and reported to the various law enforcement agencies. The blood sample is collected using the kit depicted in the above video. These kits are carried by CHP and other police agencies. Once the sample is obtained it is transported to the lab and tested. The testing process takes one to two weeks, however the resu.ts often are not reported for a couple months due to the backlog in resources and staff.
Sunday, October 16, 2016
What is CO2 Oil?
CO2 oil is one of the latest cannabis concentrates on the market. It is created by using high pressure Carbon Dioxide that strips the cannabis of its essential oils in a process known as supercritical fluid. CO2 oil is an orange tinted oil that is free flowing and either clear or opaque depending on the finishing processes used after extraction. The THC content can be anywhere from 50 to 75 percent.
The benefit of this process is that is does not use any hydrocarbon solvents or flammable liquids during the manufacturing. This process is the preferred method from a purity standpoint, however the cost of the equipment to manufacture this oil can cost hundreds of thousands of dollars.
The use of concentrates for cannabis ingestion is becoming very popular and it is important for the attorney handling dui cases to be familiar with the various substances on the market.
The benefit of this process is that is does not use any hydrocarbon solvents or flammable liquids during the manufacturing. This process is the preferred method from a purity standpoint, however the cost of the equipment to manufacture this oil can cost hundreds of thousands of dollars.
The use of concentrates for cannabis ingestion is becoming very popular and it is important for the attorney handling dui cases to be familiar with the various substances on the market.
Friday, August 26, 2016
What Constitutes The Crime Of Evading The Police?
Many people who have been drinking and get behind the wheel of a car attempt to flee an officer if they are close to being pulled over. There is a common misconception that "evading" simply means running away from the police, but that may not be a crime. The offense of evading is codified in Vehicle a Code 2800.2.
A person violates Vehicle Code section 2800.2 if he flees or attempts to elude a pursuing peace officer in violation of section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." Section 2800.1 has four elements regarding the police vehicle and officers. The police car must (1) exhibit at least one red light, (2) be sounding a siren as reasonably necessary, (3) be distinctively marked, and (4) be driven by a peace officer who is wearing a distinctive uniform.
A person violates Vehicle Code section 2800.2 if he flees or attempts to elude a pursuing peace officer in violation of section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property." Section 2800.1 has four elements regarding the police vehicle and officers. The police car must (1) exhibit at least one red light, (2) be sounding a siren as reasonably necessary, (3) be distinctively marked, and (4) be driven by a peace officer who is wearing a distinctive uniform.
Tuesday, July 26, 2016
Can The Reading Of Miranda Rights Excuse a Refusal?
In California a refusal to submit to a breath or blood test can result in a long suspension or revocation. There are few defenses to a refusal. One defense is called officer induced confusion.
It is well recognized in law that when an officer simultaneously reads a driver his implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) in conjunction with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), it will likely induce confusion.
Therefore, in cases where a driver (arrested for DUI) has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officers failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of California Vehicle Code section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.)
The question of officer-induced confusion is one of fact. [Citations.] When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658. The failure of an officer to clear up the confusion renders any alleged refusal to submit to a test insufficient to suspend a drivers license as a result.
It is well recognized in law that when an officer simultaneously reads a driver his implied consent warnings (no right to refuse a test and no right to consult with or to have an attorney present during its administration) in conjunction with the Miranda admonition (right to refuse interrogation and to have an attorney present at all stages of a police interrogation, etc.), it will likely induce confusion.
Therefore, in cases where a driver (arrested for DUI) has been given Miranda insists on the presence of an attorney before choosing a test the courts have recognized that he [or she] may have been confused by the two warnings and the officers failure to clarify and explain the difference. In such a case the refusal to take a test has been held not to be a refusal within the meaning of California Vehicle Code section 13353. (Rust v. Department of Motor Vehicles (1968) 267 Cal.App.2d 545, 547.)
The question of officer-induced confusion is one of fact. [Citations.] When a driver who has been given Miranda manifests confusion by asserting his [or her] alleged right to an attorney, it is incumbent upon the officer to explain that the right does not apply to these tests. (McDonnell v. Department of Motor Vehicles (1975) 45 Cal.App.3d 653, 658. The failure of an officer to clear up the confusion renders any alleged refusal to submit to a test insufficient to suspend a drivers license as a result.
Saturday, July 16, 2016
Is Torrance Court Tough on DUI Cases?
Torrance Court sees a lot of drunk driving cases due to its proximity to prominent beach communities and vacation destinations such as Redondo Beach and Hermosa. The city itself gets many travelers passing through to get to the coast and therefore the police are very experienced in detecting and arresting those who may have imbibed while at the waterfront, pier or one of the many bars and clubs in the area.
How is the Court at treating those charged with DUI? First, it must be understood that the prosecutors for each of the cities are different depending on the location of arrest. For example, if the arrest took place in Redondo then the city attorney for that jurisdiction will prosecute the case, whereas if the incident occurred in Manhattan Beach the DA will handle it and so on.
Judges in Torrance are no tougher than in any other Court in Los Angeles County. The sentencing guidelines are followed and the bench officer will usually impose release conditions on those with high blood alcohol levels or prior convictions for driving under the influence.
What are the typical sentences for a DUI in Torrance? For most first time offenders the person should expect a 36 month period of probation, fines of $2000, community service, AA meetings, other classes relating to the dangers of drinking and driving and the first offender school of up to 9 months. The DMV will require an ignition interlock and mandatory suspension of up to 9 months.
In addition to the mandatory punishments, the Court will often require restitution to any victims if an accident was part of the DUI.
How is the Court at treating those charged with DUI? First, it must be understood that the prosecutors for each of the cities are different depending on the location of arrest. For example, if the arrest took place in Redondo then the city attorney for that jurisdiction will prosecute the case, whereas if the incident occurred in Manhattan Beach the DA will handle it and so on.
Judges in Torrance are no tougher than in any other Court in Los Angeles County. The sentencing guidelines are followed and the bench officer will usually impose release conditions on those with high blood alcohol levels or prior convictions for driving under the influence.
What are the typical sentences for a DUI in Torrance? For most first time offenders the person should expect a 36 month period of probation, fines of $2000, community service, AA meetings, other classes relating to the dangers of drinking and driving and the first offender school of up to 9 months. The DMV will require an ignition interlock and mandatory suspension of up to 9 months.
In addition to the mandatory punishments, the Court will often require restitution to any victims if an accident was part of the DUI.
Saturday, June 11, 2016
Appealing a DMV Decision In A Refusal Case
A DMV refusal suspension is the most serious suspension the department imposes. The reason behind this goes back to the agreement we all made when our license was issued in California, that is we all agreed to "implied consent" which means if we are arrested for DUI we would agree to submit to a breath or blood test at the request of a peace officer. The DMV is the exclusive agency responsible for imposing sanctions for failure to submit to a chemical test, therefore the outcome of any concurrent court action will have no effect on any DMV decision regarding a refusal. Put another way, if the DMV decides to suspend your license for a refusal (versus say having a BAC of .08 or higher), then no criminal court judge or jury can overrule that decision in any concurrent criminal dui case.
What this means is that your underlying criminal court case can be thrown out, dismissed, reduced, or you can be found not guilty and acquitted by a jury and the DMV will still not set aside the suspension for a refusal, unlike cases where you take a test and the issue is where you above a .08 at the time of driving.
There are appeal rights, however. There are two options following a refusal finding:
1. You can request an internal review of the decision by way of an administrative review. This option has a cost of anywhere between $120 to $750 dollars depending on whether you decide to use the services of a lawyer. The case goes to Sacramento and takes 2-8 weeks. There is no right to a stay of the suspension pending the review. You have 14 days from the date of the decision to file this appeal.
2. You can file what is called a Writ of Mandamus to the Superior Court. This is essentially a lawsuit against the DMV and the costs to pursue this are substantial. Attorneys who do this type of work charge between 3-5 thousand dollars plus costs. A civil judge will hear the case. The time to do this can be long, anywhere from 2-6 months. A stay of the suspension can be requested but is rarely granted.
What about a restricted license? Unfortunately, the DMV has no procedure to request a restricted license in a refusal case. There is no legal right to a work related license or any other limited license in refusal suspension cases. The suspension can range anywhere from 1-5 years depending on the licensee's record and age.
What about the issue of need when it relates to a refusal? Again, unfortunately the DMV does not consider a drivers need when it comes to a refusal suspension. Therefore, issues such as medical conditions, critical need regarding work, school, etc., are not considered in the case.
Doesn't the DMV need to prove I was actually driving in order to suspend my license for refusing to submit to a chemical test?
Surprisingly, no the state only needs to show the officer had a "reasonable belief" that the person was driving in order to trigger the requirement to take a test.
What this means is that your underlying criminal court case can be thrown out, dismissed, reduced, or you can be found not guilty and acquitted by a jury and the DMV will still not set aside the suspension for a refusal, unlike cases where you take a test and the issue is where you above a .08 at the time of driving.
There are appeal rights, however. There are two options following a refusal finding:
1. You can request an internal review of the decision by way of an administrative review. This option has a cost of anywhere between $120 to $750 dollars depending on whether you decide to use the services of a lawyer. The case goes to Sacramento and takes 2-8 weeks. There is no right to a stay of the suspension pending the review. You have 14 days from the date of the decision to file this appeal.
2. You can file what is called a Writ of Mandamus to the Superior Court. This is essentially a lawsuit against the DMV and the costs to pursue this are substantial. Attorneys who do this type of work charge between 3-5 thousand dollars plus costs. A civil judge will hear the case. The time to do this can be long, anywhere from 2-6 months. A stay of the suspension can be requested but is rarely granted.
What about a restricted license? Unfortunately, the DMV has no procedure to request a restricted license in a refusal case. There is no legal right to a work related license or any other limited license in refusal suspension cases. The suspension can range anywhere from 1-5 years depending on the licensee's record and age.
What about the issue of need when it relates to a refusal? Again, unfortunately the DMV does not consider a drivers need when it comes to a refusal suspension. Therefore, issues such as medical conditions, critical need regarding work, school, etc., are not considered in the case.
Doesn't the DMV need to prove I was actually driving in order to suspend my license for refusing to submit to a chemical test?
Surprisingly, no the state only needs to show the officer had a "reasonable belief" that the person was driving in order to trigger the requirement to take a test.
Wednesday, June 8, 2016
Can I Appeal A DMV Decision?
The law in California allows a person who loses a DMV hearing to file an appeal. There are essentially two options: The first is to file what is called an internal administrative review. This is an appeal that goes to Sacramento and is reviewed by a seperate unit that independently looks at the evidence and decides if the suspension should be upheld. Many attorneys feel this avenue is a waste of time, however, as a lawyer who has 22 years experience I have had numerous cases overturned by this method and the cost is minimal. Moreover, should the review be unsuccessful the licensee can still file a writ to the Court.
The second method of appeal is to sue the DMV by filing a court action by way of a writ. This type of appeal is costly and time consuming. The average cost to file a writ is well over $5000 and if the appeal is lost you could be on the hook for attorneys fees and costs for not only your side but the DMV as well. However, this type of appeal is more neutral because an actual judge hears the case, not an employee of the DMV.
The second method of appeal is to sue the DMV by filing a court action by way of a writ. This type of appeal is costly and time consuming. The average cost to file a writ is well over $5000 and if the appeal is lost you could be on the hook for attorneys fees and costs for not only your side but the DMV as well. However, this type of appeal is more neutral because an actual judge hears the case, not an employee of the DMV.
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