Friday, December 21, 2018

New California IID Law, SB-1046 Allows First Time DUI Offenders to Keep License

As of January 1, 2019, SB-1046 becomes law in California.  The new law has important implications for first time DUI offenders since it allows the person to keep their driving privileges as long as they install an ignition interlock device in their vehicle.  Prior to the passage of this law offenders faced the possibility of losing their driving privileges for a minimum of 30 days before they could request an early reinstatement.  SB-1046 allows the person to avoid this hardship by installing an approved IID (either prior to or after a conviction).

An Ignition Interlock Device is a piece of hardware connected to your vehicle’s ignition system that prevents the car from starting if the driver has alcohol in their system.  The in car breathalyser will lock out the ignition if the driver blows a .03 or higher, much less than the state limit of .08.  For more information about IID devices and where to find them, visit my page discussing IID in California.

So, here is the important question:  When is the soonest I can get my license back in California if I am arrested for a DUI? Starting in 2019 a first time offender for driving under the influence can get reinstated almost immediately if they get an IID installed in their car, file proof of insurance by way of an SR22 and pays the required fees.  However, before you do this it may be prudent to consult a lawyer who can stop the suspension and review the case for possible defenses that could result in the charges being dropped or reduced, thereby eliminating the need for an ignition interlock altogether.

To recap: First time offenders over the age of 21 who were arrested for VC23152 and submitted to a chemical test will now have two options for reinstatement of their license under California SB-1046:

1.  Install an IID ( Ignition Interlock Device) in their vehicle prior to a conviction in Court and avoid the 30 day hard suspension previously required under the APS laws.

2.  Serve a mandatory 30 day APS suspension and accept a 12 month suspension with a restriction that allows the person to drive only to and from work and the mandated DUI classes.

This new SB1046 legislation is a major change to the previous laws in California that required an offender to be without a license for a month unless he or she could win the DMV APS Hearing.  Under the new law offenders who immediately install an IID will regain their driving privileges without having to serve the dreaded “hard suspension” as previously required, meaning there is no interruption in their driving privileges.  The law allows for this early license reinstatement to be modified in specific cases by the Court and DMV.  Final implementation of the new law is being worked out and may be changed subject to Judicial approval.

What is bad for the rest of the state is good for Los Angeles County.  Prior to the new law only LA County and a handful of other jurisdictions required the IID mandatorily.  Under the new law all counties will be required to participate.  First offenders must keep the ignition interlock in their car for 6 months.

The new IID Law in California also requires installers to provide low cost alternatives for those who qualify and can show they lack the income to pay the regular costs of monitoring, typically $50-$100 a month.

It is important to reiterate that this new mechanism for early reissue of your license applies only to drivers over 21 who submitted to a chemical test.  If you refused a test you may not be eligible for this early reinstatement.  Every DUI case has unique defenses and potential issues so it is important to speak with a lawyer about your specific case in order to understand the options available to you.

My question is why is California implementing a statewide requirement of IID installations when the studies of the initial pilot program concluded IID requirements did not impact recidivism for DUI offenders.

Tuesday, November 27, 2018

Why Was My DMV Hearing Postponed?

The purpose of the DMV hearing is to fight the suspension of your drivers license following a DUI arrest.  California law requires that the DMV suspend your license from anywhere from 4 months to 3 years depending upon the facts of the case and your driving record.  At the hearing the Department will consider the police report and other evidence submitted by the arresting officer such as the breath test results, blood test results or evidence that you refused the test and any other observations.

As your attorney it is my job to do everything I can to fight the suspension and keep you driving.  In order to do that I put together legal defenses and objections to the evidence submitted by the arresting officer.  I challenge every aspect of the case that can lead to winning the hearing.  Sometimes I have a conflicting Court appearance or another hearing that interferes with your hearing and for that reason a continuance is granted. In other cases a witness may be unavailable or unable to attend, this to can be a reason the hearing is postponed.  There are many reasons that can exist to cause the hearing to be continued to a new date.

When will the new hearing date be set?  Once a hearing is postponed it takes at least a couple weeks for a new date to be agreed upon.  The DMV contacts me and requests a certain hearing date and time and if that date is agreeable with my schedule it is set and you are notified by mail.

Is a continuance of the hearing beneficial?  Absolutely, when a hearing is rescheduled your license remains valid.  Also, the more time that goes by is more favorable to the client because if evidence is presented by way of a police witness they are less likely to remember details, also, sometimes evidence gets lost which obviously benefits the accused.

Thursday, July 26, 2018

Things I Can Do To Help My Attorney in My DUI Case

Top DUI Attorney, Matthew Ruff

A DUI arrest can be a very scary experience to say the least.  The night in jail, the trauma of being handcuffed in public and placed in a police car, all of these things can lead to anxiety and stress.  But the worst is over, you’ve hired an attorney who has over 25 years experience fighting and winning drunk driving cases and you can rest easy knowing everything is being handled to protect your rights and ensure a favorable result.

Here are a few things you can do to assist Matthew in preparing for and defending the case, both in Court and at the DMV:

  1. Prepare a brief CONFIDENTIAL statement of the incident.  Since the events are still fresh in your mind you should write out a couple paragraphs about what led to the police contact, include anything you think is important for the attorney to know.  Remember, the police officer wrote a full report detailing the facts as he perceived them, this is your opportunity to prepare your version of the event so the attorney can have that in his file.  The statement can be very informal in the way of an email or electronic format in notes, pages, or whatever app is convenient for you.  Email the statement to while your recollection is still fresh.
  2. Prepare a brief biography of you.  This allows the lawyer to have personal facts about you that allows him to humanize you when talking to the DA or the Court about your case.  Include where you grew up, where you went to school, your work history, and volunteer work you may have done, awards you may have received, etc..  Remember, the DA is only going to see you through the report the police write which is not going to show you in the best light.  Provide some positive background to Matt so he can have that at his fingertips when he is discussing your case.  A Resume or CV could also be provided in lieu of the history.
  3. Let Matt know if you have ANY medical problems such as diabetes, acid reflux, GERD, joint or muscle conditions, recent dental work or any medical procedure on or near the date you were arrested.  Some medical conditions can affect the sobriety tests or chemical test that may have been administered.
  4. Make sure Matthew has all of your contact information and notify him if it changes at any time.  Make sure we can get in touch with you to update out about your case.
  5. Notify Matthew if you receive any correspondence pertaining to the case.  Oftentimes the DMV or Court will send you information directly, so be sure to contact the attorney if you receive any mail or notification relating to the case.
  6. KEEP THE ARREST TO YOURSELF.  The arrest is just an accusation, you've not been convicted or adjudicated guilty.  Therefore, there is no need to tell your insurance company (You may need to notify them of any collision, however the DUI arrest is not something you should volunteer), your employer, or anyone else about the case, unless you have some contractual duty to do so such as a written agreement to notify your employer or some other obligation such as a professional license requirement.
Thank you again for allowing us to represent you in this matter.

Wednesday, June 6, 2018

How To Get Your License Back After a Second DUI

Matthew Ruff, Torrance DUI Attorney
Torrance DUI Attorney 

California will suspend your license for up to three years after a second DUI within a 10 year period. However, there is a way to get it back as soon as 90 days if you meet certain criteria.  First, you must have taken a breath or blood test.  If you were marked as a refusal the early reinstatement does not apply.  Second, you must not have been convicted of DUI with injury and the DUI must have involved alcohol, not drugs.

You must wait 90 days after the Court resolution in order to seek an early reinstatement.  You will generally get 2 letters from the DMV.  The first is the APS suspension, that is one year.  The second is the Court suspension, that is two years, however they run concurrently.  

Assuming the Court case and administrative hearing process are both resolved here is what you need to do in order to get your license back after a second DUI in 10 years:
  1. Get enrolled in the 18 month second offender 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.  It is best to get the SR22 as soon as possible.  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.
Remember, you must first endure a 90 day hard suspension during which time you cannot be caught driving otherwise your vehicle will be impounded at you will be facing a new Misdemeanor charge.

Sunday, February 18, 2018

Can Police Search Your Car For Marijuana in California

Here is the scenario, an officer stops you for a traffic violation and subsequently sees evidence of possession of a legal amount of marijuana.  Can they proceed to search your car on that basis?  No, the law allows for possession of recreational marijuana and prohibits police from conducting exploratory searches on that basis alone.  Specially, H&S § 11362.1(c) clearly provides that marijuana possessed under lawful circumstances is “not contraband nor subject to seizure,” nor does a subject’s lawful conduct pursuant to section 11362.1(a) “constitute the basis for detention, search, or arrest.” Also, People v. Torres et al. (2012) 205 Cal.App.4th 989, 993-998, held that a warrantless search upon the speculative belief that more marijuana than lawfully allowed may be found is illegal.

There are instances where a police officer may be justified in detaining you however.  H&S § 11362.3(a) makes it illegal (an infraction) to smoke or ingest marijuana (1) in a public place (subd. (a)(1), which arguably includes in a vehicle while out on the public streets or in any other public place), (2) anywhere where smoking tobacco is prohibited (subd. (a)(2)), (3) within 1,000 feet (including simple possession, whether or not it’s being smoked, if on the grounds) of a school, day care center, or youth center while children are present (subd. (a)(3) & (5)), or (4) while driving or operating, or when riding in the passenger seat or compartment, of a motor vehicle, boat, vessel, or aircraft (subd. (a)(7) & (8)). It is also illegal for anyone to (5) possess (whether or not it’s being smoked) an open container or open package of marijuana while driving, operating, or riding in the passenger seat of a motor vehicle, boat, vessel, or aircraft. (Subd. (a)(4)).

Based on the foregoing, As long as you are over 21, there are no open containers inside the vehicle and you are not smoking the pot inside the car, there would be no legal basis to conduct a search of the vehicle for more marijuana.

Sunday, February 11, 2018

Does Submission To An Officer’s Authority Constitute Consent To Draw Blood in a DUI Case?

No, says People vs. Ling (2017) 15 Cal App 5th Supp. 1
The Court held the People bear the burden of proving that a consent was, in fact, freely and voluntarily given. “This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.” (Bumper v. North Carolina (1968) 391 U.S. 543, 548.) To be effective, consent must be voluntary. Voluntariness is to be determined by considering the “totality of the circumstances.” It is also the rule that “assent” alone is not necessarily “consent.” “Consent, in law, means a voluntary agreement by a person in the possession and exercise of sufficient mentality to make an intelligent choice, to do something proposed by another . . . . [Assent] means mere passivity or submission, which does not include consent.” Neither is there consent when all we have is the mere submission to an express or implied assertion of authority. Defendant in this case was told that “(b)ecause you’re under arrest for DUI, you have to submit to a chemical test, which is a test of either your breath or your blood.” Never was he asked if he was willing to summit to such a test. Telling him that he “has to submit” to a chemical test of his blood communicates a reality where the chemical test will be conducted against defendant’s will, if necessary. He was also never given the opportunity of choosing between providing a breath sample or a blood sample.

In Ling, the Court found the defendant’s lack of physical or verbal resistance to submitting to a blood test, by itself, does not mean that he had consented to the procedure. In sum, the Court noted that “(t)he People fail to point to any evidence in the record showing that defendant consented to the blood draw nor could they.” The evidence instead shows that defendant submitted to a blood draw and that this submission was due to the officer's expression of lawful authority. As concluded by the Court; “absent evidence to the contrary, it cannot be presumed that individuals under arrest could reasonably construe a direction from an arresting officer that they must take some action as a mere query as to whether they will voluntarily consent to it. Consequently, the totality of the circumstances shows defendant did not consent to the blood draw.” The blood results, therefore, should have been suppressed.

In most DUI arrests the officer will read the suspect an advisement informing him or her of their obligations and rights to submit to a chemical test in the state of California.  Here, that was not done.

It is clear that the arresting officer in this case was either totally oblivious to, or chose to ignore, the plethora of recent (i.e., post Missouri v. McNeely (Apr. 17, 2013) 569 U.S.__ [133 S.Ct. 1552].) cases discussing the need for a full explanation of the V.C. § 23612 implied consent rules, along with evidence that a DUI arrestee do more than merely acquiesce, and actually consents, to a blood or breath test, in order for the results to be admissible in court. The Court in fact makes some reference to the need for law enforcement officers to stay up on the law if their arrests are going be of any benefit. ( Courtesy of Robert Phillips).

The rule in this case is as follows: The results of a blood test in a DUI case are inadmissible absent evidence that the defendant did in fact consent to the taking of a blood sample. A mere submission to authority is not consent.