Grand Theft Case Reversed on Appeal

Not many cases are reversed on appeal, this case is one exception.  Though not a DUI case, Mojave DUI Lawyer, Bruce Blythe felt it was important enough to publish given the recurring nature and frequency of this type of case in California. The defendant in the case stole the victim's purse, which had $700 cash in it. At the time, California law said that it was grand theft if the amount stolen was more than $400. The defendant was convicted and he filed a notice of appeal. While the appeal was pending, the grand theft laws in CA (PC 487(a)) was amended, increasing the amount required for a grand theft to $950. Does this defendant get the benefit of the change?  The Court said yes. Indeed, statutory changes favoring a defendant apply so long as the defendant's conviction isn't final.  People v. Wade; C/A 1st, Div. 5.

Can the Police Stop a Car With a Temporary Registration Tag?

Here is the scenario: Police run a DMV check on a car they are following and learn that it is two years out of registration. But the car has a temporary permit affixed to the rear window. Can they make a traffic stop?
According to the Second District Court of Appeal, the answer is “yes.” Regardless of whether the vehicle bears a temporary permit, a DMV check showing expired registration provides sufficient grounds to stop the car and detain its occupants.  In the words of the appeals court:  “An innocent explanation for a possible registration violation,” The court concluded the fact the car had a tem sticker “does not preclude an officer from effecting a stop to investigate the ambiguity.”  According to the court, “The question is not whether defendant's vehicle was in compliance with the law, but whether [the officers] had an articulable suspicion it was not. . . . The DMV record showing expired registration provided the required articulable suspicion there was something amiss with the registration and justified the vehicle stop for Fourth Amendment purposes.”
Attempting to reconcile the recent number of cases on this topic, the court distilled the following rules: 1. “In the absence of other incriminating or ambiguous evidence,” a vehicle displaying a valid temporary permit and no license plates may not be stopped; 2. “If the officer does not see the temporary permit and the vehicle has no license plates, it is reasonable for the officer to make a traffic stop;” 3. “A vehicle with expired license tabs, but displaying a temporary permit, may not be stopped if the officer has additional information that there is an ongoing process to cure the lapse in registration;” 4.  “A vehicle displaying a valid temporary permit may be stopped where there is some objective indicia that something may be amiss with the registration or permit, such as a missing front license plate; “ 5. “a vehicle displaying no license plates and no temporary permit visible from the rear may be stopped for investigation;” and, 6. A vehicle that the DMV says is not registered but nevertheless displays a temporary permit may be stopped to “investigate the ambiguity” concerning its registration.
It is certainly interesting to compare the Court's legal analysis with the reason the officer actually gave for the stop. He thought a temporary permit authorized driving to and from a smog check only. The court noted that “We do not decide this case based on Officer Moon's subjective belief the temporary permit only allowed the vehicle on the road for the limited purpose of obtaining a smog check—a belief that apparently has no basis in law.”

California Driving on a Suspended License FAQ

There are a substantial number of ways the California Department of Motor Vehicles can suspend or revoke your driver's license. This means either the DMV or the court has decided that you are NOT allowed to operate a motor vehicle until the suspension or revocation is lifted and your license is reinstated.  Many drivers are told, either by a police officer or a letter in the mail, that their license has been suspended. WHY WOULD YOUR LICENSE BE SUSPENDED?

Here are the main reasons your California driver’s license could be suspended:
1. No Insurance. If you're not insured and get in an accident, your driver's license will be suspended for four years. After one year, it may be returned if you provide proof of insurance to the DMV, and maintain it for the next three years.
2. Failure to Report an accident.
3. Driving under the influence (DWI) conviction. California has some of the toughest DUI laws in the country, and your license will be suspended for six months upon your first conviction. You may petition for a restricted license in some cases (such as when you have a critical need such as work or school). A second and third drunk driving may cause you to lose you your license for two to four years with no ability to drive at all except with an ignition interlock installed on your vehicle.
4. Underage drinking (Zero Tolerance). You'll lose your driver's license for one year or until you turn 18, whichever is later.
5. Failure or refusal of a drug or alcohol test. California's implied consent laws mean that if you refuse a blood, breath, or urine test to avoid getting a drunk driving, your license will be suspended or revoked even if you're innocent of the underlying DUI.
6. Excessive points on driving record. If you have too many points, the California DMV will put you on driving probation for one year, including a license suspension for six months, or revoke your driver's license altogether.  There are ways to fight the points suspension with a hearing requested within 14 days of the notice.
7. Vandalism. Your driver's license will be suspended for one year. If you're too young to drive, your right to apply for a driver's license will be delayed by one year.
8. Failure to appear in court for traffic ticket. This is known as an FTA hold or suspension. If you neither show up nor pay the fine on time, the court will report your failure to appear to the California DMV, and your license may be suspended pending your handling of the ticket.
9. Failure to pay Child Support.  Unfortunately, the only way to get this type of suspension removed is get current on your support payments.

HOW CAN I GET MY LICENSE BACK?
The steps you take to get your license back depend on the reason(s) it was suspended. The following are common reasons and examples of what you might need to do:
If you were convicted of drinking under the influence or drunk driving, DWI:
1. Complete a Mandatory Suspension Period: On the first conviction the court will suspend your driving privilege for six months and require you to complete a DUI program before you can be reinstated.If the DUI occurred in Los Angeles you may be required to have an ignition interlock installed on all vehicles you own or are registered to your address.  If your Blood Alcohol Level (BAC) was .15% or higher and you already had a record of violations for other reasons OR you refused to submit to a chemical test, the court may order you to complete a nine-month or longer program. If your BAC was .20% or higher and the court refers you to an enhanced DUI treatment program, your license will be suspended for 10 months.
2. Pay a Re issuance Fee: Your driver license will be returned to you at the end of the suspension after you pay a $125.00 reissue fee to the DMV and file a Proof of Financial Responsibility (SR-22). The reissue fee is $100.00 if you were under age 21 at the time of violation and were suspended under the Zero Tolerance Law.
3. DUI Treatment Program: Show Proof of enrollment in DUI Treatment Program and a Certificate of Completion (DL-101) once completed.

If you had a physical/mental condition or disorder:
Provide a satisfactory Driver Medical Evaluation (DS-326) and/or other medical information indicating the condition no longer affects the ability to operate an automobile safely.
If you had no car insurance and were involved in an accident:
Complete the mandatory 1-year suspension and pay the re issuance fee of $125.00. File a Proof of Financial Responsibility (SR-22).
If you failed to pay a traffic citation or failed to appear in court for traffic ticket:
1. Pay your citations or appear in court. You will be given an FTP/FTA abstract that says you fulfilled this requirement from the court. 2. Pay the standard re issuance fee of $55.00 (in rare cases it be could as high as $275.00) to the DMV.
WHAT IS AN SR-22?
If your license was suspended for a DUI, getting into a car accident while driving without car insurance, or other similar reasons, you may be required by state law to purchase additional insurance coverage. SR-22 is a form that the insurance company then files with the DMV after you purchase the additional coverage. The insurance company must be licensed by the California Department of Insurance. If you are unable to obtain additional insurance coverage through a licensed insurance company, then check with your state's insurance regulator (California Department of Insurance 1-800-927-HELP) to assist you.  In cases such as DUI and points, a California Attorney can help you to resolve your license issues.

HOW DO I GET A RESTRICTED LICENSE?
Depending on the reason(s) for your suspension, you may be able to obtain a restricted license, which will allow you to drive in to limited places while your license is suspended. For drunk driving, if you have a non-commercial driver license and you show proof of enrollment in a DUI treatment program, you may be able to get a restricted license after a mandatory 30-day suspension to drive to and from the DUI treatment program and/or work. If you qualify for a restricted license, you still need to meet the other requirements and pay a $125.00 reissue fee or $100.00 if you were under age 21 at the time of violation. You can apply for a restricted license in person at your local DMV office.
You can contact the California Department of Motor Vehicles at (800) 777-0133 during normal business hours for the location of the your local DMV and for more information about your particular situation. Please have your driver’s license number and any other information sent to you from the DMV available.
(Courtesy California Courts)

Can You Get A DUI on Private Property?

Many folks arrested for drunk driving are found off the highway, often on some private lot or property.  The question arises whether the law requires that the driver be on "the highway" or public property in order to be in violation of VC 23152 DUI.  According to Matthew Ruff, a DUI Attorney in Torrance the Courts settled this issue finding that a private property arrest is perfectly OK.  The Court said: There is no question that the drunk driver is an "extremely dangerous" person who obviously poses more danger when he or she drives on public streets and highways and encounters the general public in greater numbers. However, regardless of any subjective legislative intent, the objective intent of the Legislature as derived from the language of the pertinent Vehicle Code provisions is that a person who is driving while under the influence of alcohol and/or drugs is always a threat and the purpose of DUI statutes is to prohibit those "extremely dangerous" persons from driving anywhere in California.

Starting in 2012, DMV Can Revoke a License for 10 Years on 3rd DUI

New legislation has authorized the California DMV to revoke a drivers license for 10 years upon a 3rd DUI conviction.  The new law authorizes a Judge to order the revocation in appropriate circumstances, but the revocation will not be automatic.  If the Court does not make the order, the DMV will not take action.  Currently, the revocation is for 3 years, which will be the default period unless the Court makes any additional orders.  If the revocation is imposed , after 5 years the licensee can apply for an early restriction with IID and proof of completion of a DUI school.  California is not the first state to impose such a harsh penalty.  Those facing a third DUI should consult a lawyer to familiarize themselves with other penalties and California DUI laws in general.

How Does a DMV Hearing Work in a California DUI Case?

A DUI arrest inevitably leads to the imposition of a suspension of the driver's license in California.  In order to challenge any suspension the driver must request a DMV hearing to fight the action. In a DMV Administrative Per Se hearing, the DMV bears the burden of proving by a preponderance of the evidence certain facts, including that the driver was operating a vehicle with a blood-alcohol level of 0.08 percent or higher. The DMV may satisfy its burden of proof by using the presumption of Evidence Code in section 664. Procedurally, it is a fairly simple matter for the DMV to introduce the necessary foundational evidence. Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of title 17. The recorded test results are presumptively valid and the DMV is not required to present additional foundational evidence, such as testimony of the arresting officer. With this presumption, the officer’s sworn statement that the breath-testing device recorded a certain blood-alcohol level is sufficient to establish the foundation, even without testimony at the hearing establishing the reliability of the test.

According to Bruce Blythe, a Bakersfield DUI Attorney, Once the DMV establishes its prima facie case by presenting documents contemplated in the statutory scheme, the driver must produce affirmative evidence of the nonexistence of the presumed facts sufficient to shift the burden of proof back to the DMV. The licensee must show, “through cross-examination of the officer or by the introduction of affirmative evidence, that official standards were in any respect not observed. Once such showing has been made, the burden shifts to the DMV to prove that the test was reliable despite the violation.  The failure to shift the burden back to the DMV will invariably result in an upholding of the suspension.

California Fills In The Gap For Second Offense Wet Reckless

Thank goodness the legislature finally changed the law regarding second offender wet reckless convictions.  Prior to 2012, anyone convicted of a second offense DUI could get a restricted license for work after 90 days.  However, if the offense was reduced to a wet reckless the offender had no such option and had to wait a full year.  Finally, the lawmakers realized the injustice and inequity of the law and made the appropriate amendments.  The frustration of many attorneys was off the charts and no remedy was available other than to go back to Court and plead guilty to a full DUI.  It took the state a full year to rectify the laws and fix the inherent problem. How a law can become so convoluted and unfair is yet another sign of how Sacramento always leans towards greater punishment rather than leniency and fairness.