This question is one that has perplexed more people than any other. Here is the scenario: A driver is stopped and arrested for a DUI, he takes a breath test and there in no alcohol present, however the cop believes he is under the influence of a drug such as marijuana. The person is booked and processed and released with a pending court date for driving under the influence. The question then becomes: Should the driver request a DMV hearing?
The answer depends, says Hermosa Beach DUI Attorney, if the driver did not receive an order of suspension and still has his license, calling the DMV may trigger and investigation for some other action, such as a medical issue or an addiction issue which could prompt a separate suspension. However, if the driver was served an APS order incorrectly, then a quandary develops. The quandary is that if the blood comes back with no alcohol then the APS should be set aside automatically when the DMV does a review of the case. If no hearing is requested the APS could fall thru the cracks and a suspension could result
So, if the driver did not get a pink APS order, do nothing. If the driver was incorrectly served then a hearing request may be prudent to protect the driving privilege and ensure that the DMV does the right thing and sets the action aside with no suspension.
Every year the drivers safety unit of the DMV gets well over a million hearing requests and they are backlogged, so be sure to follow up and demand that once the blood shows no alcohol present that the driver record be purged of the action.
Thursday, April 11, 2013
Wednesday, April 10, 2013
At What Point Does A DUI Become a Felony in California?
With the recent case of the Nevada man charged with felony DUI, many folks ask: when does a DUI become a felony in the state of California? There are a number of ways that a drunk driving charge can be elevated from a misdemeanor to a felony. First of all, most standard first time DWI offenses in the state are considered misdemeanors, VC 23152 of the state code specifies that all DUI charges are misdemeanors unless they meet certain criteria.
One way that a driving under the influence can be a felony is if someone other than the offender himself is injured. According to one Manhattan Beach DUI Attorney, if a person sustains a substantial injury that is caused as a result of the DUI driver violating the vehicle code, such as speeding, failure to stop at a red light or other infraction, and the offender is determined to be under the influence of alcohol or a drug or both then the crime becomes a felony which carries a potential prison sentence of up to 3 years.
Another way a DUI can be a felony is when the violator has been convicted of 3 or more DUI cases in the last 10 years prior to the last charge. More on this crime in a later post.
One way that a driving under the influence can be a felony is if someone other than the offender himself is injured. According to one Manhattan Beach DUI Attorney, if a person sustains a substantial injury that is caused as a result of the DUI driver violating the vehicle code, such as speeding, failure to stop at a red light or other infraction, and the offender is determined to be under the influence of alcohol or a drug or both then the crime becomes a felony which carries a potential prison sentence of up to 3 years.
Another way a DUI can be a felony is when the violator has been convicted of 3 or more DUI cases in the last 10 years prior to the last charge. More on this crime in a later post.
Saturday, March 23, 2013
Does California Allow A Urine Test For A DUI?
The answer to this question is both yes and no. Let me explain, if you are arrested for a DUI in California you are given an option of taking either a blood or breath test if you are suspected of driving with a BAC of ,08 or more. These are the state mandated choice of tests that satisfy a driver's requirements under the implied consent laws. But is a urine test an option at all? The answer is yes. Once a person gives the state required breath test and a valid sample is obtained, the driver then has an option of giving a urine sample as a way to preserve the evidence for later testing. You see. a breath sample cannot be saved for later analysis so California law under a case called Trombetta allows the accused to take a blood or urine, at their own expense, for future testing once the case gets into Court.
There is another way a person has a right to take a urine test. If the arresting officer believes that the DUI suspect is under the influence of drugs as well as alcohol or if the only substance is drugs. the choice of tests at that point is either blood or urine since a person's breath cannot give an accurate reading of the presence of drugs such as marijuana. In this instance, the driver has the absolute right to submit to a urine test rather than a blood test unless, for some reason a urine test is unavailable. Should a suspected DUI driver refuse to take either a blood or urine test when suspected of a DUID, under California DUI Laws, the driver will face the possible punishment of a suspension of up to 3 years by the California DMV.
In conclusion, a urine test is an option in certain circumstances within a California drunk driving context. Specifically, when the driver takes a breath test and wants a sample of his or her urine to be saved for future toxicological analysis at his or her own expense. Also, when the DUI suspect is believed to be under the influence of a drug which cannot be detected by a breath test.
There is another way a person has a right to take a urine test. If the arresting officer believes that the DUI suspect is under the influence of drugs as well as alcohol or if the only substance is drugs. the choice of tests at that point is either blood or urine since a person's breath cannot give an accurate reading of the presence of drugs such as marijuana. In this instance, the driver has the absolute right to submit to a urine test rather than a blood test unless, for some reason a urine test is unavailable. Should a suspected DUI driver refuse to take either a blood or urine test when suspected of a DUID, under California DUI Laws, the driver will face the possible punishment of a suspension of up to 3 years by the California DMV.
In conclusion, a urine test is an option in certain circumstances within a California drunk driving context. Specifically, when the driver takes a breath test and wants a sample of his or her urine to be saved for future toxicological analysis at his or her own expense. Also, when the DUI suspect is believed to be under the influence of a drug which cannot be detected by a breath test.
Sunday, March 10, 2013
Can a Police Officer Stop Your Car Just For Leaving a Bar?
DUI arrests are fast becoming the number one type of criminal charge in the U.S. today according to many sources. The police are often encouraged and empowered to stop as many motorists as they can in the hopes of catching a driver who is impaired by alcohol or drugs, or sometimes both. In the zeal for getting DUI drivers off the road we sometimes forget that the Bill of Rights affords each one of us the protection from unreasonable searches and detentions by law enforcement, with this being said, is it reasonable or legal to stop a car just because the driver was observed leaving a bar or drinking establishment? Some say it is OK, others believe that unless the officer sees some illegal action, that type of stop would be illegal.
According to Bruce Blythe, a Bakersfield Criminal Defense Attorney who handles many DUI cases, a stop by police simply based on the fact that the driver was seen walking out of a bar would be Constitutionally impermissible. The touchstone of the Fourth Amendment, according to Blythe, is the premise that any "seizure" of a citizen by the government must be based on a reasonable suspicion of criminal activity. This suspicion need not rise to the level of actual certainty, but must cause a reasonable person to conclude that criminal activity may be afoot. In the scenario presented, Blythe argues that the officer would lack any objectively reasonable belief due to the fact that patronizing a bar is not illegal, nor is there any fact upon which the officer could point to that would lead him to a conclusion that the driver had been drinking and was impaired to the degree that he or she could no longer drive the vehicle safely.
In this type of a fact pattern, the absence of any articulated facts to support the belief that the driver was impaired or above the legal limit in California would certainly result in a finding that the contact and subsequent DUI arrest violates the Constitution and thereby would be illegal under CA state law.
According to Bruce Blythe, a Bakersfield Criminal Defense Attorney who handles many DUI cases, a stop by police simply based on the fact that the driver was seen walking out of a bar would be Constitutionally impermissible. The touchstone of the Fourth Amendment, according to Blythe, is the premise that any "seizure" of a citizen by the government must be based on a reasonable suspicion of criminal activity. This suspicion need not rise to the level of actual certainty, but must cause a reasonable person to conclude that criminal activity may be afoot. In the scenario presented, Blythe argues that the officer would lack any objectively reasonable belief due to the fact that patronizing a bar is not illegal, nor is there any fact upon which the officer could point to that would lead him to a conclusion that the driver had been drinking and was impaired to the degree that he or she could no longer drive the vehicle safely.
In this type of a fact pattern, the absence of any articulated facts to support the belief that the driver was impaired or above the legal limit in California would certainly result in a finding that the contact and subsequent DUI arrest violates the Constitution and thereby would be illegal under CA state law.
Monday, December 3, 2012
Do DUI Laws Favor The Wealthy?
Is it possible that the law actually favors those who can best afford fines, lawyers and the expense involved in defending a long drawn out battle in the Courts? One authority says yes. California makes it difficult for a person to win a DUI unless they fight the charges, and one recent study seems to suggest that those who can pay the fees to an attorney to drag the case out as long as possible might actually benefit the most.
According to one group, the odds favor those that can litigate the most, and the results are stunning. The legal group Maxim Legit says that if you are charged with driving under the influence and take the time and resources to hire a DUI lawyer to challenge the case in Court, the statistics suggest the outcome will be more favorable. Indeed, the numbers point to a range of success of at least 63 percent versus only 12 of those who do not retain counsel and defend the case. Although the numbers have not been peer reviewed nor generally accepted in the scientific community, the general consensus seems to point to a reliable result.
According to one group, the odds favor those that can litigate the most, and the results are stunning. The legal group Maxim Legit says that if you are charged with driving under the influence and take the time and resources to hire a DUI lawyer to challenge the case in Court, the statistics suggest the outcome will be more favorable. Indeed, the numbers point to a range of success of at least 63 percent versus only 12 of those who do not retain counsel and defend the case. Although the numbers have not been peer reviewed nor generally accepted in the scientific community, the general consensus seems to point to a reliable result.
Saturday, December 1, 2012
Bakersfield DUI Attorney Proves His Client Was Stopped Illegally
About a thousand DUI stops occur every minute around this country, most are lawful and warranted , some are not. In some cases the police pull over a car for some reason that has nothing to do with whether they saw a violation of the law or some suspicion of criminal activity. for example, in one recent case a DUI Attorney in Bakersfield proved that his client was pulled over unlawfully by a CHP officer after leaving a popular bar and nightclub. The officer claimed the car was being driven without any headlights, however, evidence submitted at the DMV hearing in the case rebutted this contention. Counsel for the driver fully investigated the facts and circumstances surrounding the arrest and put together a case that pointed to the fact that the car's lights must have been on at the time.
On the night of the incident, the driver of the car was pulled out, asked to perform FST's and then arrested for DUI. His blood alcohol level was above .15% BAC. He was charged with driving under the influence, his license was confiscated and he spent the night in jail. The Bakersfield DUI Lawyer challenged police report at a formal hearing in the Kern County Driver Safety Office of the California DMV. Evidence was presented that showed the lights on the car were on and counsel argued that the reason for the stop may have been motivated by a "hunch" alone that the driver was intoxicated because he was observed leaving the bar around 2 a.m.
At the conclusion of the case, the hearing Judge decided in favor of the licensee and ordered that his license be returned forthwith. This case underscores a little known problem that underlies the "war on DUI" in this country. While it is logical that all resources possible should be spent to deter and enforce the current DWI laws, it should not be done at the expense of our citizen's fourth amendment rights under the Constitution.
On the night of the incident, the driver of the car was pulled out, asked to perform FST's and then arrested for DUI. His blood alcohol level was above .15% BAC. He was charged with driving under the influence, his license was confiscated and he spent the night in jail. The Bakersfield DUI Lawyer challenged police report at a formal hearing in the Kern County Driver Safety Office of the California DMV. Evidence was presented that showed the lights on the car were on and counsel argued that the reason for the stop may have been motivated by a "hunch" alone that the driver was intoxicated because he was observed leaving the bar around 2 a.m.
At the conclusion of the case, the hearing Judge decided in favor of the licensee and ordered that his license be returned forthwith. This case underscores a little known problem that underlies the "war on DUI" in this country. While it is logical that all resources possible should be spent to deter and enforce the current DWI laws, it should not be done at the expense of our citizen's fourth amendment rights under the Constitution.
Thursday, November 29, 2012
Torrance DUI Attorney Explains Possible Probation Terms
A person who is charged and later pleads guilty to a DUI in California can be ordered to comply with a variety of probationary terms that can dictate how they must live their life in the future. Among the many orders are the requirement that the defendant install an ignition interlock on all cars they own, as well as the real possibility that they serve a sentence of jail.
According to one Torrance DUI Attorney, the probation conditions can also include things such as the requirement that the individual attend classes or perform community service. The best way to avoid the mandatory punishments is to not be convicted of a driving under the influence or a lesser included offense such as a wet reckless. But, in those instances where a conviction seems imminent, the Court may impose the following consequences: That the person complete an AB541 program or SB38 DUI school if they have priors. That the driver not drive for a specific period of time or that the license be restricted for a length of time up to 3 years. The person cannot drive at any time with a measurable amount of alcohol in their system. They cannot drive after consuming any alcoholic beverage for at least 12 hours. The accused cannot frequent any bars or visit any place where alcohol is the chief item of sale. The driver cannot refuse to take a chemical test at the request of any peace officer. The defendant can be required to perform Caltrans or community labor. The individual must notify the Court of any change of address, pay restitution for damages caused to any property, pay any civil judgment arising out of any incident which occurred from the arrest of the DUI. The probationer must obey all laws and orders of the Court. Attend any AA meetings ordered. pay any fines imposed.
All conditions of probation for a DUI are sanctioned by the possibility of jail time if the person does not comply.
According to one Torrance DUI Attorney, the probation conditions can also include things such as the requirement that the individual attend classes or perform community service. The best way to avoid the mandatory punishments is to not be convicted of a driving under the influence or a lesser included offense such as a wet reckless. But, in those instances where a conviction seems imminent, the Court may impose the following consequences: That the person complete an AB541 program or SB38 DUI school if they have priors. That the driver not drive for a specific period of time or that the license be restricted for a length of time up to 3 years. The person cannot drive at any time with a measurable amount of alcohol in their system. They cannot drive after consuming any alcoholic beverage for at least 12 hours. The accused cannot frequent any bars or visit any place where alcohol is the chief item of sale. The driver cannot refuse to take a chemical test at the request of any peace officer. The defendant can be required to perform Caltrans or community labor. The individual must notify the Court of any change of address, pay restitution for damages caused to any property, pay any civil judgment arising out of any incident which occurred from the arrest of the DUI. The probationer must obey all laws and orders of the Court. Attend any AA meetings ordered. pay any fines imposed.
All conditions of probation for a DUI are sanctioned by the possibility of jail time if the person does not comply.
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