Sunday, September 29, 2013

Is Restitution Mandatory in Hit and Run and DUI Cases?

Some people believe that just because a person is involved in a hit and run or DUI case that restitution is always required, not so.  In California, a conviction of a hit-and-run or misdemeanor DUI offense does not necessarily  establish responsibility for the accident in which defendant was involved.  Courts have decided that in a hit-and-run case the crime is the running, not the hitting. However, even though the crime did not cause the loss, the court may order restitution as a condition of probation, at least when “there is no question as to defen-dant’s responsibility for the loss.” Said the Court in People v Carbajal (1995) 10 C4th 1114, 1124 where the defendant conceded liability in hit-and-run accident and agreed to repay the damages caused in the accident.

Restitution is appropriate in these cases because it is reasonably related to the crime of which defendant was convicted and to the goal of probation to deter future criminality. According to a local Bakersfield DUI Lawyer who has fought and won these cases, it is particularly important for the court to:

1. Notify defendant that the court may consider requiring restitution as a condition of probation; and
2. Give defendant “a meaningful opportunity to controvert the information” that the court considers.
The Fourth District of the Court of Appeal in California has applied the reasoning of Carbajal in a nonprobation case. In that case the accused criminal defendant was convicted of felony hit-and-run resulting in death, sentenced to prison, and ordered to pay funeral expenses as direct restitution to victim’s family.

Whatever the Court's decision in a particular case, the following are guidelines that Judges use in cases involving DUI and hit and run related accidents:  1.  In the absence of a plea agreement, restitution in a hit-and-run case or misdemeanor DUI case (Vehicle Code §23152) should probably be ordered only when it is obvious or undisputed that defendant caused the accident. 2.  Convictions of felony DUI causing injury (CA Vehicle Code §23153) pose no causation problems and should be handled as mandatory restitution cases.

In some instances a Court may order that the defendant serve prison and pay restitution for a drunk driving case.  In those cases the state of California will secure the payments through the person's wages, tax refunds and other government aid.

Monday, September 23, 2013

Man Has Case Thrown Out On Appeal For Judge's Error

Many cases are reversed due to a misunderstanding or mis application of the law by Judges.  This case is a classic example of legal error which results in a case being reversed on appeal in California.  The accused was originally sentenced to a term of 25 years to life for a 1999 drunk driving conviction with two prior strikes. The strikes were based on his plea in a 1993 California DUI offense, in which one person was killed and another injured. In sentencing the defendant for the 1999 offense, the trial Judge examined the preliminary hearing transcript of the 1993 case and found he had "personally inflicted" great bodily injury on both victims, qualifying the offenses as strikes. A federal court vacated that sentence based on a violation of well settled principles of law. On remand, the trial court struck one strike but not the one based on the manslaughter offense, and resentenced the defendant to a six year term - doubling the three year upper term for drunk driving. On appeal the appellant claimed the trial court's finding of "personal infliction" of injury denied his right to a jury trial. The appeals court agreed and reversed.

The fact is, the justices found, that the defendant never admitted to conduct sufficient to establish personal infliction of injury in the 1993 DUI offense; actually, he disputed the relevant facts of his conduct. In addition to finding whether the defendant suffered the prior conviction, the applicable statutory definition of serious felony required the court to find that he personally inflicted great bodily injury on any person other than an accomplice. It could make the finding as to injury because this was implicit in the manslaughter plea. But it could not find that defendant personally inflicted the injury without resolving a factual dispute, as his plea only admitted he proximately caused the injury. The court did not have the power to resolve this dispute under California criminal law or federal law . The error was not harmless because the evidence in the record could reasonably support a jury's finding of reasonable doubt that the accused personally inflicted great bodily injury.

Wednesday, September 11, 2013

Double Jeopardy Applicable in Mistrial Scenarios

The concept of double jeopardy has been around for decades and is often raised in the context of DUI crimes, here, the legal theory was raised in a criminal case and the Court issued its ruling as follows:  Following a guilty verdict by the jury of Penal Code section 136.1 (attempting to dissuade a witness), the court granted appellant’s motion for new trial on the grounds that the verdict was contrary to the evidence (Pen. Code, sec. 1181(6)). In granting the motion, the court stated that it found "insufficient evidence to support the verdict." The court then granted appellant's request to dismiss the count on the grounds that he "has been in jeopardy on this." Reversed. In ruling on an 1118(6) motion for new trial, the judge must be satisfied that the evidence as a whole is sufficient to sustain the verdict. A trial court's ruling on the motion is within its complete discretion and will be upheld absent a clear abuse of discretion. Here, the appellate court rejected the prosecutions contention that the Judge used the wrong standard in ruling on the motion for new trial (i.e., whether the evidence was legally sufficient to support a conviction). Notwithstanding the trial court's reference to insufficient evidence, it is presumed that it applied the correct standard in granting the motion. However, the court did err when it then dismissed the charge because the grant of a section 1181(6) motion is the equivalent of a mistrial caused by a hung jury, with the judge acting as a 13th juror who is a "holdout" for acquittal. This rule permits a criminal court oversight of the verdict but ensures that the People have a right to have the charges resolved by a jury. In this case, the error in dismissing the charge was not harmless. Evidence was presented that appellant’s employee told the victim not to leave her house. It was reasonable to find that he did so at appellant’s instruction so that the victim would avoid service of a subpoena. "Advising a witness to conceal himself for the purpose of avoiding service of a subpoena is in violation of section 136.1

Saturday, September 7, 2013

California Appeals Courts Start To Decide Cases on Illegal DUI Blood Draws

Earlier this year the US Supreme Court ruled that a DUI blood draw against a person's consent violates the Constitution. Recently, in seven separate cases, each defendant was charged with misdemeanor driving under the influence (Veh. Code, § 23152, subds. (a), (b)) and filed a motion to suppress evidence pursuant to section 1538.5, contending that the blood drawn from his person subsequent to arrest and pursuant to the implied consent law should be suppressed under Schmerber v. California because the blood draw was not performed in a constitutionally reasonable manner. In each case, the arresting officer transported the defendant to the jail (or in one case a hospital) where phlebotomists or other technicians drew the blood. The officers observed the blood draw and testified that each defendant agreed to the test, no defendant experienced undue pain, and the draw was performed in a sanitary manner. The motions to suppress were denied in six of the seven cases. The appellate division of the superior court agreed with the defendants that the evidence should have been suppressed. The California Court of Appeal transferred the cases from the appellate division and consolidated the cases for decision. The Courts Reversed. Finding that the means and procedures used to obtain a blood sample from an arrestee in a DUI case must be reasonable under the Fourth Amendment. If a physician does not draw an arrestee's blood in a hospital, courts evaluate whether the conditions of the blood draw created an undue risk of harm to the arrestee. Testimony from a police officer who witnessed the blood draw may properly be considered in evaluating whether the blood draw was conducted in a constitutionally reasonable manner—expert testimony is not required. Here, the officers' unrebutted testimony showed that the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain and was not performed in a manner which created any undue harm or risk. The blood draws were conducted in a constitutionally reasonable manner.