Sunday, April 17, 2011
Lawyer Construes the Law of Citizens Arrest for DUI in California
California law pertaining to citizen's arrest can be quite complex. This article attempts to clarify and summarize when a citizen may arrest a person for 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 in accordance with Penal Code §837(1) in fact, according to a Long Beach Criminal Lawyer, the Courts have held that a citizen may make arrest for misdemeanor DUI committed in his or her presence in many cases. For example, when a parking lot attendant who, observed defendant trying to exit parking facility by driving wrong way and into facility’s entrance gate, summoned officer and reported his observations to officer who made arrest this was considered legal, moreover, when 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 this was also construed as within the citizen's rights.
Can an Out of State DUI Prior be Used Against Someone in California?
In California, a person who gets a DUI is subject to being charged with a prior offense even if it is one that took place out of state. A conviction of an out-of-state offense that would have been a violation of CA Vehicle code §23152 or §23153 if committed in California constitutes a conviction of those sections for purposes of the Vehicle Code, including its sentencing provisions. Veh C §23626. For example in tha case of California v Crane (2006) 142 CA4th 425 the Court held that a Colorado conviction for driving while impaired, which requires only that the defendant be affected to the slightest degree, cannot serve as a prior conviction for purposes of enhancing DUI sentence; California violations require an appreciable degree of impairment.
However, in DMV administrative driver’s license suspension proceedings, it is sufficient if the out-of-state offense is “substantially similar” to the California DUI statutes. In the case of McDonald v Department of Motor Vehicles (2000) 77 CA4th 677, 681–689, the court engaged in juxtaposing California and Colorado DUI statutes and finding sufficient similarity even though Colorado statute presumes intoxication at blood-alcohol level of .05 % or more, while Veh C §§23152 and 23153 only presume intoxication at blood-alcohol level of .08 percent or more. This decision is consistent with the Vehicle Code section 13363(b) which states that an out-of-state conviction must be “substantially the same” in substance, interpretation, and enforcement as the California law pertaining to that conviction in order to be given reciprocal treatment by DMV under Driver’s License Compact. Many DUI Lawyers however can find loopholes in the laws or utilize innovative strategies in Court to defeat the prior, check with a local attorney about your specific case.
Recently, attorney Ruff represented a client in Torrance Court for a DUI and the person had two prior out of state DWI convictions. The DA charged her with a third time offense for a Redondo Beach arrest and she was looking at mandatory 120 days in jail if convicted. Fortunately, Matthew knew how to get around that by compelling the prosecutor to produce certified records of the prior offenses, they could not do it.
However, in DMV administrative driver’s license suspension proceedings, it is sufficient if the out-of-state offense is “substantially similar” to the California DUI statutes. In the case of McDonald v Department of Motor Vehicles (2000) 77 CA4th 677, 681–689, the court engaged in juxtaposing California and Colorado DUI statutes and finding sufficient similarity even though Colorado statute presumes intoxication at blood-alcohol level of .05 % or more, while Veh C §§23152 and 23153 only presume intoxication at blood-alcohol level of .08 percent or more. This decision is consistent with the Vehicle Code section 13363(b) which states that an out-of-state conviction must be “substantially the same” in substance, interpretation, and enforcement as the California law pertaining to that conviction in order to be given reciprocal treatment by DMV under Driver’s License Compact. Many DUI Lawyers however can find loopholes in the laws or utilize innovative strategies in Court to defeat the prior, check with a local attorney about your specific case.
Recently, attorney Ruff represented a client in Torrance Court for a DUI and the person had two prior out of state DWI convictions. The DA charged her with a third time offense for a Redondo Beach arrest and she was looking at mandatory 120 days in jail if convicted. Fortunately, Matthew knew how to get around that by compelling the prosecutor to produce certified records of the prior offenses, they could not do it.
Saturday, April 16, 2011
DUI Attorney Explains the Law of Refusal in California
In California, a refusal to take a chemical test when arrested for a DUI can be quite severe. Sentencing and license suspension alone can result in harsh penalties. The arrested person must be told that his or her refusal to submit to or complete a required test will result in a fine and mandatory imprisonment if the person is convicted of DUI, and suspension or revocation of his or her driver’s license. Veh Code §23612(a)(1)(D), (e)–(g). License suspension or revocation is mandatory when the person refuses to submit to or complete a required test, even if he or she is later acquitted or the DUI charge is dismissed. One Lakewood DUI Lawyer tells us that this is different from other provisions which requires the DMV to reinstate the license of a person who is acquitted of driving with a blood-alcohol concentration of 0.08 percent or more, Veh C §13353 does not have a similar provision for defendants charged with refusing to take a chemical test, even when they are found factually innocent of this charge.
Sentencing enhancements can also affect the outcome. On conviction of a violation of Veh C §23152 or §23153, the defendant is subject to the sentencing enhancements set forth in the Vehicle Code, namely mandatory jail time over and above the DUI terms of probation. Before these enhancements may be imposed, the defendant’s willful refusal or failure to complete the required test must be spelled out in a formal complaint and proven beyond a reasonable doubt.
According to one Lakewood DUI Attorney , a refusal can be used against the person in criminal court as follows: The person should be advised that his or her refusal to submit to a test may be used against him or her in court. Veh C§23612(a)(4). The Courts have held that refusal to take blood-alcohol test after lawful request is not act coerced by officer and is not protected by privilege against self-incrimination and the statute prohibiting defendant from refusing to submit to chemical test does not violate privilege against self-incrimination. However, an officer’s failure to give this advisement goes to the weight, not the admissibility, of the evidence.
The person’s refusal to submit to a test unless it is administered by his or her own physician constitutes a refusal under the statute as does a refusal to submit to a test unless the person’s attorney is present or until the person has had an opportunity to communicate with his or her attorney . According to one DUI Refusal Attorney in Los Angeles a defendant’s demand to look at officer’s card containing information on accuracy of various tests before submitting to test was a refusal. Because the test must be administered without delay, when a person refuses to submit to a test and then changes his or her mind, the person is deemed to have refused to comply with the testing requirement
Sentencing enhancements can also affect the outcome. On conviction of a violation of Veh C §23152 or §23153, the defendant is subject to the sentencing enhancements set forth in the Vehicle Code, namely mandatory jail time over and above the DUI terms of probation. Before these enhancements may be imposed, the defendant’s willful refusal or failure to complete the required test must be spelled out in a formal complaint and proven beyond a reasonable doubt.
According to one Lakewood DUI Attorney , a refusal can be used against the person in criminal court as follows: The person should be advised that his or her refusal to submit to a test may be used against him or her in court. Veh C§23612(a)(4). The Courts have held that refusal to take blood-alcohol test after lawful request is not act coerced by officer and is not protected by privilege against self-incrimination and the statute prohibiting defendant from refusing to submit to chemical test does not violate privilege against self-incrimination. However, an officer’s failure to give this advisement goes to the weight, not the admissibility, of the evidence.
The person’s refusal to submit to a test unless it is administered by his or her own physician constitutes a refusal under the statute as does a refusal to submit to a test unless the person’s attorney is present or until the person has had an opportunity to communicate with his or her attorney . According to one DUI Refusal Attorney in Los Angeles a defendant’s demand to look at officer’s card containing information on accuracy of various tests before submitting to test was a refusal. Because the test must be administered without delay, when a person refuses to submit to a test and then changes his or her mind, the person is deemed to have refused to comply with the testing requirement
California Under 21 DUI Attorney Explains the Law of VC 23140 for Minors
It is unlawful in California for a person under 21 years of age who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. Vehicle Code section 23140(a). Recently, the California Courts ruled that the statute does not violate the Constitution or deny persons under 21 equal protection of law even though it bases violation on blood-alcohol level of 0.05 percent or more rather than 0.08 percent level applicable to adults because, the Court said: " minors who drink alcohol and drive pose greater accident risk than those drivers over the age of 21", according to one California Under 21 DUI Lawyer.
In California, a minor may be found in violation of Veh C §23140(a) if the person was, at the time of driving, under 21 years of age and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine his or her blood-alcohol concentration, and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood. Veh C §23140(b). This offense is punishable as an infraction which means that the minor cannot be sentenced to jail if convicted. .On conviction, the clerk of the court must prepare and immediately forward to the DMV an abstract of the record of the court at which time the minor's license will be suspended for one year and points will be added to the drivers record for insurance purposes.
In addition to the VC23140, another under 21 dui law exists in California, VC23136. This law is the actual "zero tolerance" .01 or more statute. This code section makes it illegal to drive with a .01 percent or more of alcohol in your blood if you are under the age of 21. The law is an infraction which means that you cannot go to jail if convicted.
In California, a minor may be found in violation of Veh C §23140(a) if the person was, at the time of driving, under 21 years of age and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine his or her blood-alcohol concentration, and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood. Veh C §23140(b). This offense is punishable as an infraction which means that the minor cannot be sentenced to jail if convicted. .On conviction, the clerk of the court must prepare and immediately forward to the DMV an abstract of the record of the court at which time the minor's license will be suspended for one year and points will be added to the drivers record for insurance purposes.
In addition to the VC23140, another under 21 dui law exists in California, VC23136. This law is the actual "zero tolerance" .01 or more statute. This code section makes it illegal to drive with a .01 percent or more of alcohol in your blood if you are under the age of 21. The law is an infraction which means that you cannot go to jail if convicted.
Wednesday, April 13, 2011
Hermosa Beach DUI Lawyer Explains HGN Law in Drunk Driving Cases
In California, police officers in the field have many different "tests" at their disposal to ascertain whether a suspect is DUI. One of the field sobriety tests that the officer may administer is the horizontal gaze nystagmus (HGN) test. The test involves having the suspect follow a moving object with his or her eyes, then measuring the angle of onset at which an involuntary jerking or "bouncing" of the eyes begin. One local Hermosa Beach DUI Lawyer relates that, Depending on the observations of the DUI police investigator at the angle of onset, the prosecution may argue that the failure of the drunk driving suspect to follow the object or a jerking of the eyes may be consistent with the presence of alcohol and/or some types of drugs. The individual cop's observations may be admitted as evidence of the presence of alcohol, as will the officer’s opinion, based on the Nystagmus test in combination with other tests, that the defendant was under the influence. The officer’s testimony, however, should not draw a correlation between the HGN test and any specific blood-alcohol level. The CA Appellate Courts have ruled that HGN evidence, when viewed with other relevant indications, meets Kelly-Frye standard for general acceptance in the scientific community for purposes of deciding whether a person is under the influence of alcohol.
Sunday, April 10, 2011
California DUI Laws in a Nutshell
In California, it is a misdemeanor to drive a vehicle under the following circumstances:
• While under the influence of any alcoholic beverage or drug, or under their combined influence. Veh C §23152(a).
— DUI involving alcohol. It is not necessary to prove any specific degree of intoxication, but only that the defendant was under the influence. A person is under the influence when, as a result of using alcohol or drugs, his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive the vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.
— DUI involving drugs. When a defendant is charged with driving under the influence of a drug, a showing of a specific measurable amount of the drug in the defendant’s blood is not required. The showing that must be made is that the defendant was under the influence.
• While having 0.08 percent or more, by weight, of alcohol in one’s blood. For this offense it is not necessary to prove the defendant was, in fact, under the influence; it is sufficient to prove the defendant’s blood-alcohol level was 0.08 percent or more. For this reason, this statute is sometimes referred to as the “per se” DUI statute. There is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.
Veh C §23152(b). The percent by weight is based on grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. Veh C §23152(b).
• While addicted to the use of any drug, unless participating in a narcotic treatment program approved under Health & S C §§11875 et seq. Veh C §23152(c).
• While having 0.04 percent or more, by weight, of alcohol in one’s blood while driving a commercial vehicle. Veh C §23152(d).
There is a rebuttable presumption that the person accused of DUI had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving. Veh C §23152(d).
• While under the influence of any alcoholic beverage or drug, or under their combined influence. Veh C §23152(a).
— DUI involving alcohol. It is not necessary to prove any specific degree of intoxication, but only that the defendant was under the influence. A person is under the influence when, as a result of using alcohol or drugs, his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive the vehicle with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.
— DUI involving drugs. When a defendant is charged with driving under the influence of a drug, a showing of a specific measurable amount of the drug in the defendant’s blood is not required. The showing that must be made is that the defendant was under the influence.
• While having 0.08 percent or more, by weight, of alcohol in one’s blood. For this offense it is not necessary to prove the defendant was, in fact, under the influence; it is sufficient to prove the defendant’s blood-alcohol level was 0.08 percent or more. For this reason, this statute is sometimes referred to as the “per se” DUI statute. There is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving.
Veh C §23152(b). The percent by weight is based on grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath. Veh C §23152(b).
• While addicted to the use of any drug, unless participating in a narcotic treatment program approved under Health & S C §§11875 et seq. Veh C §23152(c).
• While having 0.04 percent or more, by weight, of alcohol in one’s blood while driving a commercial vehicle. Veh C §23152(d).
There is a rebuttable presumption that the person accused of DUI had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of driving the vehicle if the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of the performance of a chemical test within three hours after driving. Veh C §23152(d).
Sunday, March 27, 2011
What are the Penalties for a DUI in Los Angeles County?
So you or someone you know got arrested for drunk driving and are freaking out over what is going to happen. You have many questions such as Am I going to Jail? and Am I going to lose my license? These are all good questions and it is healthy to take a proactive approach to the situation, but don't stress yourself out. The best thing to do is consult with an experienced DUI attorney in the area where you were arrested. You see, each jurisdiction has different penalties for driving under the influence so a DWI that occurs in San Francisco may be punished differently than one in Los Angeles.
California quite possibly has some of the stiffest consequences for DUI among all fifty states. Within California, Los Angeles probably has the toughest penalties for persons convicted of drunk driving or DUI. The Courts in L.A. are particularly heavy handed on offenders who drive with children in the car or those that have prior convictions for the same offense.
Here is a quick summary of the most prevalent penalties handed down:
DMV Drivers License Consequences :
Those Over 21 If a breath or Blood test is Taken:
1st Offense: Six months Drivers License suspension.
2nd Offense: One year suspension.
3rd Offense: Two year revocation.
4th Offense: Three year revocation.
For first offenders, the DMV will allow a restricted license for work and school if the violator gets enrolled in a DUI program and obtains an SR-22.
Those over 21 who REFUSE a Chemical Test:
1st Offense: Drivers License suspension for one year, with no possibility of provisional or restricted license.
2nd Offense: License suspension for two years.
3rd Offense: License suspension for three years.
4th Offense: License revocation for four years.
Those Offenders Under 21 at the Time of the Arrest:
For drivers under the age of 21 at the time of the arrest, a one year license suspension will be imposed. However, an experienced Under 21 DUI Attorney can oftentimes obtain a set aside of any suspension based on a number of technicalities in the paperwork. If no set aside is possible then a lawyer can help in acquiring a critical need restriction for work, school or medical appointments.
Los Angeles Superior Court Penalties on the VC23152 DUI charges:
(As of July 2010 all Persons Convicted of DUI in Los Angeles County will be required to install an Ignition Interlock on all vehicles they own or have access to in order to get their drivers license returned)
1st Offense: Some courts do not require jail time on a first-offense, unless there are grounds for a sentence enhancement (such as a minor in the car, speed enhancements, a blood alcohol concentration (BAC) of .20% or higher, refusing the chemical test, or others). Other courts require some jail time (48 hours to 10 days), even on a first offense. The required alcohol education program will also vary. The standard program is once a week for 12 weeks; however, where the BAC is .15% or higher, a six or even nine month program will be ordered. An experienced Los Angeles DUI Lawyer can help to eliminate serious punishments or mitigate the sentence in appropriate circumstances.
2nd Offense (One prior conviction within last 10 years): By law, the mandatory minimum jail time on a second offense DUI is 96 hours, although this can be served in two 48-hour periods. Some courts will allow city jail. Still other courts will routinely impose much harsher jail sentences on a second-offense DWI, with sentences of 30 days or more. The SB-38 alcohol education program for a second offense DUI is 18
months long. An ignition interlock device may be required.
3rd Offense (Two prior DUI convictions within last 10 years): A California mandatory minimum jail sentence of 120 days and 3 year license revocation. ( Pursuant to Recent Legislation, a Multiple offender may be allowed to obtain a restricted license for work purposes, contact a DUI attorney for help)
4th Offense (Three or more DUI convictions within last 10 years): A fourth offense Drunk Driving conviction is a Felony "wobbler", meaning it can be charged as a misdemeanor or a felony. Punishment can range from up to one year in county jail, up to three years in a California state prison, more if the person caused injury or has prison priors.
Drunk Driving Sentence Enhancements in Los Angeles:
sentence Enhancements are added punishments the Judge must order for cases involving special factors or what the California Law Regards as Requiring a more intense punishment, some examples include:
Refusal to take the chemical test; BAC of .15% or .20% or higher; Speeding 20 miles per hour above speed limit on side streets, or 30 mph over the speed limit on the freeway, where driving recklessly and DUI, (requires 60 days in jail if convicted); Minor in car while driver DUI; Traffic Collision or Motor Vehicle Accident; Prior DUI or drunk driving convictions; Injury to persons other than the defendant (VC 23153); Drugs in system in addition to alcohol. These enhancements all carry a more severe sentence if found to be true or if the accused pleads no contest or guilty, the penalties vary but can involve Loss of Vehicle thru impound, various other programs such as MADD or HAM (Los Angeles County Hospital and Morgue Program) group meetings, hard labor community service or incarceration in the L.A. county jail.
California quite possibly has some of the stiffest consequences for DUI among all fifty states. Within California, Los Angeles probably has the toughest penalties for persons convicted of drunk driving or DUI. The Courts in L.A. are particularly heavy handed on offenders who drive with children in the car or those that have prior convictions for the same offense.
Here is a quick summary of the most prevalent penalties handed down:
DMV Drivers License Consequences :
Those Over 21 If a breath or Blood test is Taken:
1st Offense: Six months Drivers License suspension.
2nd Offense: One year suspension.
3rd Offense: Two year revocation.
4th Offense: Three year revocation.
For first offenders, the DMV will allow a restricted license for work and school if the violator gets enrolled in a DUI program and obtains an SR-22.
Those over 21 who REFUSE a Chemical Test:
1st Offense: Drivers License suspension for one year, with no possibility of provisional or restricted license.
2nd Offense: License suspension for two years.
3rd Offense: License suspension for three years.
4th Offense: License revocation for four years.
Those Offenders Under 21 at the Time of the Arrest:
For drivers under the age of 21 at the time of the arrest, a one year license suspension will be imposed. However, an experienced Under 21 DUI Attorney can oftentimes obtain a set aside of any suspension based on a number of technicalities in the paperwork. If no set aside is possible then a lawyer can help in acquiring a critical need restriction for work, school or medical appointments.
Los Angeles Superior Court Penalties on the VC23152 DUI charges:
(As of July 2010 all Persons Convicted of DUI in Los Angeles County will be required to install an Ignition Interlock on all vehicles they own or have access to in order to get their drivers license returned)
1st Offense: Some courts do not require jail time on a first-offense, unless there are grounds for a sentence enhancement (such as a minor in the car, speed enhancements, a blood alcohol concentration (BAC) of .20% or higher, refusing the chemical test, or others). Other courts require some jail time (48 hours to 10 days), even on a first offense. The required alcohol education program will also vary. The standard program is once a week for 12 weeks; however, where the BAC is .15% or higher, a six or even nine month program will be ordered. An experienced Los Angeles DUI Lawyer can help to eliminate serious punishments or mitigate the sentence in appropriate circumstances.
2nd Offense (One prior conviction within last 10 years): By law, the mandatory minimum jail time on a second offense DUI is 96 hours, although this can be served in two 48-hour periods. Some courts will allow city jail. Still other courts will routinely impose much harsher jail sentences on a second-offense DWI, with sentences of 30 days or more. The SB-38 alcohol education program for a second offense DUI is 18
months long. An ignition interlock device may be required.
3rd Offense (Two prior DUI convictions within last 10 years): A California mandatory minimum jail sentence of 120 days and 3 year license revocation. ( Pursuant to Recent Legislation, a Multiple offender may be allowed to obtain a restricted license for work purposes, contact a DUI attorney for help)
4th Offense (Three or more DUI convictions within last 10 years): A fourth offense Drunk Driving conviction is a Felony "wobbler", meaning it can be charged as a misdemeanor or a felony. Punishment can range from up to one year in county jail, up to three years in a California state prison, more if the person caused injury or has prison priors.
Drunk Driving Sentence Enhancements in Los Angeles:
sentence Enhancements are added punishments the Judge must order for cases involving special factors or what the California Law Regards as Requiring a more intense punishment, some examples include:
Refusal to take the chemical test; BAC of .15% or .20% or higher; Speeding 20 miles per hour above speed limit on side streets, or 30 mph over the speed limit on the freeway, where driving recklessly and DUI, (requires 60 days in jail if convicted); Minor in car while driver DUI; Traffic Collision or Motor Vehicle Accident; Prior DUI or drunk driving convictions; Injury to persons other than the defendant (VC 23153); Drugs in system in addition to alcohol. These enhancements all carry a more severe sentence if found to be true or if the accused pleads no contest or guilty, the penalties vary but can involve Loss of Vehicle thru impound, various other programs such as MADD or HAM (Los Angeles County Hospital and Morgue Program) group meetings, hard labor community service or incarceration in the L.A. county jail.
Subscribe to:
Posts (Atom)