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?

Nurses are trained to help people who are sick and need of help.  However, who is there to help a nurse when they get into trouble?  Attorney Matthew Ruff has been fighting for health professionals charged with drunk driving for over 22 years.  Unfortunately the state of California has little sympathy for nurses arrested for driving under the influence.  Indeed, they come down harder on them than they do Doctors.  The good news is there is hope to get out of this mess with the assistance of an experienced lawyer.  

For many it is the fear of the unknown that presents the biggest stress.  Therefore, I have put together a brief synopsis of the general laws relating to this topic and some information that will allow you to cope with your anxiety.  

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.