What if I am Arrested But No Criminal Charges Are Filed?

Many times in the day police arrest individuals but the district attorney decides not to file criminal charges against them or decide to "reject" a request by law enforcement to bring a formal complaint against the accused.  In these instances, the question becomes what affect will this have on my permanent record?  It depends.  If the person was booked, that is they were finger printed and a mug shot photograph was taken, then there will be an arrest record history sent to the California Department of Justice reflecting an arrest.  Oftentimes, however, the police agency will not follow up on their duties and update the system that the person was not charged and that all criminal allegations were dropped.  Without this critical step, the person may be strapped with the stigma of an arrest record that shows no disposition which could negatively impact employment and other important aspects of the person's life down the road.  A lawyer can be retained to request that the record be destroyed or that proper methods should be adhered to so that the arrest is shown as a "detention only".  This crucial follow up is overlooked many times and the arrestee will not be aware of the scar on his or her record.

One option is to formally demand that the police department issue a "certificate of detention" after the prosecutor fails to file formal charges.  It should be noted though that this request may be a bad idea particularly when the D.A. is on the fence about filing charges.  In these cases the police may take it upon themselves to pursue the case with the district attorney, sometimes called "awakening a sleeping giant".  So be careful in how you handle these things, it is best to consult with an attorney familiar with the criminal laws in California. 

Is restitution ordered in a DUI accident dischargeable in bankruptcy?

The question is frequently posed.  What if I am ordered to pay restitution to a victim in a DUI accident but I later file for Bankruptcy, will I have to pay the money? Under California DUI Law, the Bankruptcy Code does not apply to restitution orders. A restitution obligation imposed as a condition of probation is not dischargeable in a liquidation or “straight bankruptcy” proceeding under Chapter 7  Federal Bankruptcy laws. In fact, Courts have found that Civil restitution judgments originally imposed as a condition of debtor’s probation are not dischargeable under Chapter 7 bankruptcy proceedings. Nor is a restitution obligation dischargeable under Chapter 13 (11 USC §§1301 et seq). 11 USC §1328(a)(3). Bankruptcy does not block restitution even when a criminal defendant’s civil obligations to the victim were discharged by bankruptcy before criminal charges were filed. Because collection of restitution is a continuation of a criminal action, the automatic stay provisions of bankruptcy law do not apply. In one recent Court case the Judge found that the automatic stay did not enjoin state court criminal proceedings against debtor for failure to pay child support, according to the relevent law set forth in 11 USC §362(b)(1).

What if the victim in the case declares bankruptcy?  When the victim incurred an obligation to a third party as a result of defendant’s conduct, the bankruptcy discharge of the victim’s obligation does not preclude a restitution order. Indeed, it has been found that the bankruptcy is economic loss despite discharge; no explanation why loss is equal to amount of obligation.

DUI Accidents

Sometimes a DUI is bad enough, but couple that with an accident and you have double trouble.  DUI collisions are common, many involve simple property damage but some result in injury.  A common question by folks that have been arrested for drunk driving after an accident is how do California DUI Laws treat people that have not only commit driving under the influence but cause an accident as well?  The short answer is that the laws do not create any greater punishment per se unless someone is hurt.  However, many prosecutors will want a larger pond of flesh for a person charged with DWI and also crashes.

A Follow-Up to California Laws on DUI Drugs (DUID)

With the recent cases dealing with DUI arrests and breath test cases with a breath test results of .00%, there has been a litany of questions how a prosecutor can file drunk driving charges in these types of cases.  It's simple.  VC23152a says that a person can be charged with full DUI for drugs only, no alcohol is needed.  Therefore, if a blood or urine test shows some drug that has impairing effects and that drug can be corroborated by the cop who made the arrest, a DUID charge will be pursued.  With that in mind, it does not automatically mean that a conviction will occur.  There may exist many defenses to the case that a lawyer can help develop.  DUID Attorney Matthew Ruff for example tells us that under the influence of drug cases can often be difficult to prove beyond a reasonable doubt.  Most drugs do not have a per se level of impairment and so that will hinder many criminal prosecutions in Court.  Prescription drugs are particularly hard to quantify impairment levels. One thing is clear California DUI Laws do allow a D.A. to file charges and they will, so get a law firm that knows the ins and outs of DUID.

Can Amanda Bynes Be Charged For DUI With A .00% BAC?

In the news this week is the arrest of Amanda Bynes for DUI in Los Angeles.  However, her father is not just standing by his daughter in the aftermath of her DUI arrest on Friday. He says there is no way she was drunk  that night. "She was not drunk," Rick Bynes told People. "I'm told she blew a zero on the Breathalyzer. She didn't have a single drink. My daughter doesn't drink." The elder Bynes claims the police officer that detained his daughter was at fault for pulling out in front of the actress as she was turning at an intersection. While she was arrested for DUI after side-swiping the cop, Rick adamantly says his daughter was not impaired, just extremely "upset and very emotional."  So, how is this possible?  One possibility is that she was under the influence of drugs, either prescription or illegal drugs.  California Law  allows a police officer to arrest a person for DUI if the individual was impaired due to alcohol or drugs or both.  Time will tell whether the evidence supports a charge of DWI or that the officer was simply mistaken.

Understanding the HGN Test in California DUI Cases

The horizontal gaze nystagmus test (HGN) is often the first field sobriety test administered in a California DUI investigation. Customarily, the police officer does not need probable cause to arrest before requesting a driver to perform a field sobriety test such as an HGN. The biggest source of error on the HGN is the failure of the officer to properly administer the test. Indeed, there are at least 25 different steps that need to be performed to properly conduct the HGN test. The National Highway Traffic Safety Administration training manual says that the procedures must be followed with precision and that failure to do so renders the results unreliable. In a DUI trial the jury should be made aware that the tests are standardized field sobriety tests—not randomized field sobriety excursions. It must be explained to the jury that an agency of the federal government (NHTSA) has established that the tests must be given in a particular manner or they are not reliable. No freelancing is permitted. Even if the officer administered the HGN test flawlessly, the test is still subject to attack. In fact, HGN can be caused by a number of reasons other than alcohol intoxication. HGN occurs naturally in some people who are not under the influence. Also, fatigue, illness, hypertension, and common drugs like caffeine or aspirin may contribute to HGN.

What Are the Exceptions to the IID Requirement in California?

The DUI laws in Los Angeles California require the installation of an ignition interlock on all vehicles owned by a person convicted of a DUI.  The question is often asked, how do you I get around this requirement?  There is a possible exemption from compliance with this pilot program if within 30 days of the notification of the IID requirement, the person certifies to the department all of the following:

• The person does not own a vehicle.
• The person does not have access to a vehicle at his or her residence.
• The person no longer has access to the vehicle being driven by the person at the time of arrest for a violation that subsequently resulted in a conviction for a violation of VC §23152 or VC §23153.
• The person acknowledges that he or she is only allowed to drive a vehicle that is fitted with a functioning ignition interlock device.
• The person acknowledges that he or she is required to have a valid driver license before he or she can drive.
• The person is subject to the requirements of this section

When he or she purchases or has access to a vehicle. Installation of an IID device on car(s) does not allow the person to drive without a valid driver license. For the purposes of this pilot program, vehicle does not include a motorcycle until the state certifi es an IID that can be installed on a motorcycle. Further, a person subject to an IID restriction shall not operate a motorcycle for the duration of the IID restriction period.