Orange County DUI Lawyer Blog

DUI Charge Reductions in California

Mon, 14 May 2012 11:20:55 -0800

An experienced DUI defense attorney knows that your case must be evaluated in terms of whether to take it to trial or to accept a plea bargain. Taking a case to trial and winning will result in the charges against you being dismissed. However, if the jury decides against you, you are exposed to a wide range sentence, which is up to the Judge to decide. You are then sentenced based upon the actual conviction which may or may not be better than a plea bargain would have been.

An Orange County DUI attorney, who has a long history of negotiating plea bargains in the various Orange County Courts, will know how and when to begin negotiating a settlement with the District Attorney. Depending upon the facts of your DUI arrest and charges, some goals your attorney might have are: 1) a reduced sentence, 2) a reduced charge, or 3) both.

Some of the more common reduced DUI charges are a "wet" reckless and a "dry" reckless, exhibition of speed, drunk in public and, in some cases, traffic infractions. Below is a more detailed explanation of some of these examples:

A wet reckless basically means that alcohol or drugs were involved in your arrest. Advantages over a conviction of DUI are 1) less jail time; 2) reduced fines, and 3) no mandatory license suspension. However, a wet reckless is still what is called "priorable" which means that it can be counted as a DUI second offense if you are convicted of a DUI within 10 years of your wet reckless conviction.

A dry reckless is basically misdemeanor reckless driving. A dry reckless has some major advantages over a wet reckless. 1) it doesn't count as a DUI on your criminal and driving record, and 2) it most likely will not have an effect on your insurance premium. However, just like a wet reckless and a DUI, it does count as 2 points on your driving record and accumulating too many points in a given time period, can trigger a negligent operator license suspension.

The more aggressive your attorney is in identifying problems in the prosecution's case, such as police misconduct or mistake, the more bargaining power he or she has when negotiating lesser charges and lesser sentencing. Since plea-bargaining is basically negotiation between your attorney and the District Attorney, presenting challenges for the District Attorney by finding holes in their case is one way a good DUI defense attorney builds their defense.

An experienced DUI Defense Attorney will look closely at the police report and at the conduct of the investigating officers. Specifically, any misconduct or violation of rights must be taken into consideration. Further, if a field sobriety test was performed, and this is what the arrest was based on, it should be challenged due to the fact that field sobriety tests are subjective, basically the opinion of the officer performing the test. If a roadside Breathalyzerr is used, this must also be looked at carefully as the results are unreliable and there are too many ways to skew the results. The law does require that anyone being arrested for suspicion of DUI must take a chemical test. Blood or breath, at the police station, are the two choices. However, there is no legal obligation for anyone to perform a field sobriety test. If a breath test was used at the police station, the maintenance logs of the breath machine need to be examined. If blood was taken, the attorney may want to employ the services of an expert to perform a “Blood Split”, which can help determine the blood alcohol level at the time of the stop rather than at the time the blood was taken. This can sometimes result in a lower blood alcohol level.

Anyone who has been arrested for DUI, Driving Under the Influence or Drunk Driving, needs an attorney who is skilled and will gather the appropriate evidence, know how to use it intelligently and efficiently, and render the best possible outcome for their client.

Driving Under The Influence of Prescription Drugs In Orange County California

Wed, 25 Apr 2012 16:20:14 -0800

California Vehicle Code 23152(a) makes it illegal to drive under the influence of alcohol or drugs. As an Orange County DUI Defense Attorney, practicing criminal defense law in Orange County, California for 20 years, I have seen countless situations where people are surprised to learn that they can be arrested and charged with DUI on drugs, even if the drug is a prescription drug prescribed to them by their doctor.

When it comes to driving, California law defines "drugs" as any substance other than alcohol that could affect your nervous system, brain or muscles. You are considered "driving under the influence of drugs" when those drugs impair you to the point that you can no longer drive like a sober person under similar circumstances.

Driving under the influence of drugs is investigated and prosecuted differently than driving under the influence of alcohol. In most cases, the stop and roadside investigation is conducted by a drug recognition expert "DRE", who has been trained to identify drug impairment. Unlike DUI involving alcohol, which specifically makes it illegal to drive with a blood alcohol level of .08 or greater, there is no specific number that identifies excessive blood toxicity in a DUI of drugs. For this reason, DUI of drugs is a bit more difficult for the prosecution to prove.

Some defenses that should be considered by a good DUI of drugs defense attorney are: 1) Just because you had drugs in your system does not necessarily mean that you were "under the influence"; 2) there are physical conditions that can be mistaken as the symptoms of drug impairment; and 3) failure to comply with California's Title 17 procedures, which deals with collection, storage and/or analysis of blood or urine samples.

DUI of drugs is a misdemeanor but can be charged as a felony under certain circumstances such as it being your fourth DUI offense, any prior felony DUI convictions, or your DUI causes an accident that causes injuries to a third party.

The penalties for driving under the influence of drugs are much the same as in DUI involving alcohol. A conviction for DUI can carry long lasting effects on a person’s life and for that reason, it is important for anyone facing a DUI conviction, to have experienced legal representation. A good Orange County Criminal Defense Attorney, who has expertise in DUI arrests, will make every effort to have the charges reduced and/or dismissed. A key factor in choosing an attorney is to look for an attorney who is familiar with the Court in which the case is pending, as well as the other Courts in Orange County. A good relationship with the Judges, District Attorneys, Court Clerks and other personnel can influence a positive outcome and ensure that you get the best possible result.

Orange County DUI Crashes Involving Underage Drivers

Mon, 16 Apr 2012 14:30:40 -0800

Orange County cities have the highest number of crashes involving underage drinkers in California. Laguna Hills had the highest rate among very small cities and Fullerton had the worst rate among mid-sized cities. Buena Park came in at number 5 and Anaheim had the second-highest rate among the state's biggest cities. As an Orange County DUI Defense Attorney with 20 years of experience, I have seen enforcement agencies become more and more aggressive when it comes to underage drinking and driving.

Some attribute the high underage alcohol related crashes to the beach towns as well as the college towns in Orange County. A college town might have a higher number of underage drinkers, which is what Fullerton has suggested is the explanation for it's high rates.

In Orange County California, being under 21 and driving with a blood alcool of 0.01% or greater subjects you to the penalties under California's "Zero Tolerance Law". This means that even if you have only one drink, you may be found guilty of the offense. You do not need to be found to be "under the influence", only that you consumed some measure of alcohol. Penalties for a minor being convicted of DUI vary according to the circumstances. Violating California Vehicle Code 23140 is an infraction and therefore not filed as a misdemeanor or felony. However, certain circumstances can cause the punishment to be more severe. Possible sentences include three to five years of informal probation; $390.00 to $1,000.00 in fines; up to one year in county jail; mandatory court-appointed alcohol class; and a six month driver's license suspension.

The Department of Motor Vehicles has it's own punishments/consequences for minor's drinking and driving. If a minor violates the Zero Tolerance Law he or she will lose their driver's license for one year, be required to attend and complete a minimum three month alcohol program; and possibly be ordered to participate in a "Youthful Drunk Driving Violation Program". Participation in this program includes a visit to an E.R., the coroner's office or a chemical dependency recovery center.

If your son or daughter has been charged with Underage DUI, or any other juvenile offense, it is important that you seek the advise of an experienced Juvenile Criminal Defense Attorney. The rules are different in juvenile court. As an example, in juvenile court, there is no bail and no right to a jury trial. The procedures are different. At the first hearing, the court will decide whether your child will go home with you or whether he/she will stay in custody until the next court date. Having an experienced juvenile defense attorney at the first court hearing may make the difference. A good juvenile defense attorney will gather positive information about your son or daughter’s background. Report cards, achievement awards, sports awards and accomplishments can help when speaking with the District Attorney and Judge.

Orange County Cities Have Highest Rates Of Alcohol Related Accidents

Fri, 13 Apr 2012 11:12:46 -0800

According to the state's Office of Traffic Safety, Orange County cities have the highest number of alcohol related accidents than any other in the State of California. As an experienced Criminal Defense Attorney, practicing in Orange County for 20 years, I have watched Orange County police agencies become more and more aggressive when it comes to driving under the influence. However, despite the thousands of dollars spent each year on DUI checkpoints and police patrols, the numbers continue to climb. Some attribute this to summer beach crowds and the beach bars that service them.

Newport Beach and the city of Orange had the state's highest rate of crashes involving alcohol, when compared to other California cities their size. Huntington Beach has one of the highest DUI arrest rates in the state for its size. Santa Ana has the third highest rates of alcohol-involved crashes among California's biggest cities, despite twice-a-month DUI checkpoints, with Costa Mesa ranked number 4 of the worst among mid-sized cites.

Because of the high rate of alcohol related driving arrests in Orange County, I have become extremely familiar with the rules, laws and requirements each officer must follow when it comes to DUI arrests. I have consequently become familiar with the mistakes that officers make and/or their lack of knowledge or interest in following the strict guidelines associated with stopping, detaining and arresting someone for DUI.

Police officers must have "reasonable suspicion" to pull over a person. Reasonable suspicion that a crime has been or is about to be committed is all that is necessary. However, having been a DUI Defense Lawyer in Orange County for many years has shown me that most stops are based on probable cause such as simple traffic violations and/or reckless driving. If an officer suspects a person is driving under the influence, but the person has not violated any traffic violation, the police officer must have a "reasonable suspicion" before the driver can be pulled over.

When a police officer pulls someone over and suspects that the driver is intoxicated or under the influence, the officer may then administer field sobriety tests. What most people don't know is that the roadside, hand-held breathalyzer, the Preliminary Alcohol Screening (PAS) test is considered a field sobriety test and is used to assist the officer in deciding whether or not to arrest the driver for DUI. It is not required that anyone submit to this roadside PAS tests and therefore may be refused without consequences. If however, the officer determines that the driver was driving while intoxicated, and arrests the driver, the driver is then required, under the Implied Consent Law, to submit to a chemical test of their blood or breath. Urine tests are typically only given when there is reason to believe that the driver is under the influence of drugs and alcohol. If, after arrested, the driver refuses to submit to a chemical test, this is a refusal and is subject to strict consequences with both the DMV and the Courts.

There are many things that should be taken into consideration when a person performs poorly on a field sobriety test. A number of things can affect a person’s performance when being asked to perform a roadside field sobriety test. First, anyone who is pulled over by a police officer, especially late at night, typically is nervous. When asked to perform a field sobriety test, the natural instinct of a person is that they must perform perfectly or they will be arrested for DUI or DWI, even if neither is the actual fact.

- weather
- poor lighting
- uneven surface conditions
- the distraction of traffic, lights and spectators
- the type of footwear being worn
- fatigue
- weight, age, physical condition and natural coordination
- nerves
- intimidation
- the officer's instructions
- illness, and/or
- injury

Any or all of these factors can affect a person's performance of an FST exercise. However, these tests are still considered reliable. An experienced DUI defense lawyer should still challenge the manner in which the tests were administered, the bias of the DUI officers and the fact there are a number of situations that can explain a person's poor performance. Officers rarely, if at all, take the time to consider the factors listed above.

Anyone who has been arrested for DUI in Orange County, California, Driving Under the Influence or Drunk Driving, needs an attorney who is skilled and will gather the appropriate evidence, know how to use it intelligently and efficiently, and render the best possible outcome for their client.

Police Officers Being Trained As Drug Recoginition Experts

Mon, 26 Mar 2012 12:43:09 -0800

Officials with the California Office of Traffic Safety said 30% of drivers killed in car accidents in 2010 tested positive for legal and/or illegal drugs. So, while the number of alcohol related driving deaths is on the decline, the number of drugged and driving related accidents has increased. As an experienced DUI Defense Attorney, I can say that Orange County California Courts are among the strictest in the State when it comes to Driving Under the Influence.

The Office of Traffic Safety, along with the California Highway Patrol have teamed up in an effort to teach officers how to better spot drugged drivers and arrest them. Police departments across the state are also being urged to send officers to get special training on the issue and become Drug Recognition Experts.

According to the CHP Commissioner, training law enforcement will be the key to successfully removing drug-impaired drivers from the road.

It is clear that law enforcement is becoming more aggressive in their efforts to remove impaired drivers from the road. Along with the Orange County, CA, DUI Task Forces and Roving Saturation Patrols, it is only a matter of time before there will be special teams designated to recognize and arrest "drugged drivers".

A conviction of DUI carries severe and long lasting effects on a person's life. An experienced DUI defense attorney can help to minimize the consequences of being arrested and charged with driving under the influence.

DUI, or driving under the influence, charges are typically charged as misdemeanors. However, some DUI's can be charged as felonies. A DUI that is charged as a Felony DUI, usually involves DUI manslaughter; DUI causing serious injury; 3rd DUI conviction within 10 years; and 4th DUI conviction at any time. Drunk drivers who cause injury, or DUI with injury is sometimes referred to as a "wobbler" charge, which means that it can be charged as either a felony or misdemeanor. However, prosecutors typically pursue the charge that carries the most punishment. An experienced criminal defense attorney, or DUI defense attorney, will have the knowledge and experience that is necessary to get the charge reduced to a misdemeanor. A conviction of felony DUI carries a much more serious punishment than a misdemeanor DUI. A misdemeanor first offense DUI can be punishable by up to six months in the county jail, whereas a felony DUI can carry a year or more in state prison sentence.

Irvine Man Convicted of Gross Vehicular Manslaughter While Intoxicated

Tue, 21 Feb 2012 10:05:39 -0800

A 22-year-old Irvine, California man has been sentenced to 8 years in Prison after pleading guilty in Orange County Superior Court to Gross Vehicular Manslaughter While Intoxicated. As an Orange County DUI Defense Attorney, I have represented hundreds of people arrested for DUI, but DUI with injuries and/or death are the most difficult due to the sentence enhancement exposure someone faces when charged with this crime.

In this particular case, this young man was racing along a curvy street, lost control of his car and slammed into a cement wall. The impact killed two passengers in his car and seriously injured the other two passengers. Two hours after the crash, he tested positive for alcohol and methamphetamine.

The sentencing enhancements in this case included one count of multiple victim enhanced penalty and two counts of great bodily injury inflicted on another person, in the commission of a felony.

Vehicular Manslaughter, while intoxicated, is a felony punishable up to 10 years in State Prison. However, in certain circumstance, the punishment can be more severe. In California, we have what is known as DUI Sentence Enhancements. This means that a sentence can be increased, depending upon the enhancement(s). Sentence enhancements in DUI cases include, prior convictions, a blood alcohol level of .15 or higher, test refusal and speeding and/or reckless driving.

The crime of Felony DUI falls into three categories: vehicular homicide, manslaughter or second-degree murder. Vehicular homicide is charged when, as a result of ordinary negligence, a death occurs. Manslaughter with gross negligence is charged when the death is the result of criminal negligence. Criminal negligence, as it relates to drunk driving basically means that the individual had the knowledge that their actions were likely to result in death. Second-degree murder can be charged when there is a death and the person who was drinking and driving acted with "implied malice" or a conscious disregard for life. Second-degree murder is not usually charged in a DUI / DWI case because it is difficult to establish implied malice.

However, if the person has prior DUI convictions, the prosecution can use this to establish that the defendant knew the dangers of drunk driving. In Orange County, when a person pleads guilty to DUI, they must admit in court or in writing, that they understand the dangers of drunk driving, this is known as a "Watson Warning". The prosecution can use this as evidence if they decide to prosecute for second-degree murder.

Vehicular manslaughter while intoxicated, with gross negligence can result in the following penalties: UP to 1 year in county jail, or 4,6, or 10 years in state prison. However, with one or more priors, it can be 15 years to life in state prison.

Fortunately, there are defenses to Felony DUI, or Vehicular Manslaughter While Intoxicated. In this situation, a good Orange County DUI Attorney should look at the possible defenses to vehicular manslaughter. Challenging the validity of the breath or blood test results, as well as challenging police procedures and/or misconduct must always be looked at. Some other defenses to Vehicular Manslaughter while Intoxicated include: Rather than gross negligence, that the defendant acted with regular negligence; that the negligence what not what caused the death. That the acts of another person or forces beyond your control such as road conditions or weather were the cause of the accident and/or death. Accident Reconstruction Experts are often used when this type of defense is being offered.

A conviction for Felony DUI can carry long lasting effects on a person’s life and for that reason, it is important for anyone facing this type of conviction, to have experienced legal representation. A good Orange County Criminal Defense Attorney, who has expertise in DUI arrests, will make every effort to have the charges reduced. A key factor in choosing a DUI attorney in Orange County, is to look for an attorney who is familiar with the Court in which the case is pending, as well as the other Courts in Orange County. A good relationship with the Judges, District Attorneys, Court Clerks and other personnel can influence a positive outcome and ensure that you get the best possible result.

Anyone who has been arrested for Felony DUI, Driving Under the Influence or Drunk Driving, needs an attorney who is skilled and will gather the appropriate evidence, know how to use it intelligently and efficiently, and render the best possible outcome for their client.

California's "Implied Consent" DUI Laws

Tue, 24 Jan 2012 15:44:24 -0800

Under California law, anyone lawfully arrested for driving under the influence is required to take a chemical test of his or her blood, breath or urine. This is referred to as the "Implied Consent" law. Refusing to submit to a chemical test has serious consequences with both the DMV and the Courts. As an Orange County DUI Defense Attorney, I have seen many situations where the implied consent law is misunderstood, misrepresented or misinterpreted. While anyone lawfully arrested for DUI is required to submit to a chemical test, not all arrests are made "lawfully".

When a police officer pulls someone over and suspects that the driver is intoxicated or under the influence, the officer may then administer field sobriety tests. What most people don't know is that the roadside, hand-held breathalyzer, the Preliminary Alcohol Screening (PAS) test is considered a field sobriety test and is used to assist the officer in deciding whether or not to arrest the driver for DUI. It is not required that anyone submit to this roadside PAS tests and therefore may be refused without consequences. If however, the officer determines that the driver was driving while intoxicated, and arrests the driver, the driver is then required under the Implied Consent Law to submit to a chemical test of their blood or breath. Urine tests are typically only given when there is reason to believe that the driver is under the influence of drugs and alcohol. If, after arrested, the driver refuses to submit to a chemical test, this is a refusal and is subject to strict consequences with both the DMV and the Courts.

So, what constitutes a "refusal"? There are several situations where this can be confusing. For instance, if you agree to take the roadside, hand-held PAS test, are arrested and then refuse to take the chemical test at the police station, this is considered a refusal. The PAS test is only a tool for the police officer to determine whether or not to arrest you. You are then required to submit to a chemical test to determine what your blood alcohol level is. Also, if at the police station you submit to a chemical breath test and the test comes back lower than the officer anticipated, you may then be asked to submit to a urine test. This would be to determine whether or not you are under the influence of drugs or drugs and alcohol. A refusal to take this second test would constitute a refusal.

Most arresting officers will give you the choice between blood and breath. If however, you request a urine test but the officer does not suspect drugs being involved, the officer can refuse to allow the urine test and require you to take the blood or breath. Refusing to do this constitutes a refusal. Failure to perform the test correctly, not blowing hard enough into the machine or not providing enough urine, can constitute a refusal.

The rule is that you are offered one chance to submit to a chemical test after being arrested. If you refuse but later change your mind, the officer is not required to allow the test. This can then be deemed a refusal.

If you refuse to submit to a chemical test, the DMV and the Court will both take action, independent of each other. The DMV will automatically suspend your license. You have ten days from the date of your arrest to request a DMV hearing, which can postpone the suspension until after the DMV hearing. The only issues that will be taken into consideration at the DMV hearing are: 1) Did the arresting officer have a reasonable belief that you were DUI; 2) Were you lawfully arrested; 3) Did the arresting officer advise you that your license would be suspended for one year or revoked for two or three years, if you refuse to take the test or fail to complete the test; and 4) Did you willfully refuse to submit to or fail to complete a test after the officer asked you to do so.

If you are successful at the DMV hearing, your license will not be suspended. If however you are not, the DMV will suspend your license for one year for a first DUI; Revoke your license for 2 years for a second DUI; and revoke your license for 3 years for a third DUI. The DMV will take action regardless of the outcome at your court hearing.

The District Attorney and the Court have discretion to handle the matter in a few different ways. Because the arrestee refused to take a chemical test, there is no proof of DUI. If the DA believes that the arresting officer is not credible or articulate enough in front of a jury, the District Attorney may decide to reduce or dismiss the charges.

If you were to plead guilty to a reduced charge, but the DMV ruled against you at the DMV hearing, your license suspension still remains in effect. Along that same line, if the DA were to dismiss the refusal charge but requires you to plea guilty to the DUI, the DMV suspension remains in effect. However, if the Court dismisses the charges or the District Attorney decides not to file the case, you may be entitled to a new DMV hearing to try to get the suspension lifted. However, there is no guarantee that the DMV will agree to lift the suspension.

If the DA files DUI charges with the enhancement charge of refusing to submit to a chemical test, and you are found guilty or plead guilty to all charges, the sentence will be as follows:

An additional 48 hours in a county jail for your first DUI and a minimum nine-month California DUI School.

An additional 96 hours in a county jail for your second DUI within ten years

An additional 10 days in a county jail for your third DUI within ten years or an additional 18 days in a county jail for your fourth DUI offense within ten years.

These above penalties are “enhancements” that will be imposed in addition and consecutive to any other DUI sentence imposed by the Court.

There are defenses to DUI refusal charges that an experienced DUI criminal defense lawyer could present on your behalf that could result in a dismissal of the refusal charge. Some of the more common defenses are:

There was no lawful arrest. In other words, the police officer lacked probable cause to stop you or didn't have reasonable cause to believe that you were DUI. An unlawful arrest will result in a dismissal of your DUI and refusal charges. Or, if you were arrested for DUI but the officer didn't see you driving; you were only observed sitting in your parked car. This could result in an unlawful arrest. If an officer arrests you, even though there is no evidence to indicate that you are impaired, this could result in an unlawful arrest.

California law requires that the arresting officer must advise you of the consequences of refusing to submit to a chemical test. If the officer fails to advise you of the consequences of a refusal, the charges will be dismissed.

If you are incapacitated and unable to consent, you may not be charged with a refusal. However, the incapacitation must be due to a medical condition. Neither voluntary intoxication, nor any other self-induced condition will excuse the refusal.

If the refusal admonition was confusing or misleading. If the officer administers the admonition in a confusing or ambiguous way, or advises that a refusal "could" rather than "would" result in an automatic suspension, this could be seen as a justification for a refusal.

Anyone who has been arrested for DUI with a refusal should contact an experienced DUI refusal defense attorney to ensure that your rights have not been violated and that you are given the best defense available.

Arrested For DUI While Not Driving

Fri, 13 Jan 2012 11:54:10 -0800

A man was found drunk and unresponsive in his car in the Las Floras area of Orange County. The car was parked and the engine turned off.

California law is very strict when it comes to driving under the influence. To prove that a person is guilty of DUI in Orange County, and California in general, the prosecution must prove that the defendant drove a vehicle and that he/she was under the influence of alcohol or drugs when he/she drove.

The law makes it pretty clear what constitutes "under the influence", but what about "driving" under the influence. The law defines driver and driving as follows: "A driver is a person who drives or is in actual physical control of a vehicle; and "A person drives a vehicle when he or she intentionally causes it to move by exercising actual physical control over it. The person must cause the vehicle to move, but the movement may be slight."

In the situation here, where the man is found slumped over and unresponsive in his car, will or can he be found guilty of driving under the influence as it applies to Vehicle Code Section 23152(a) and 23152(b). In the well established case of Mercer v. Department of Motor Vehicles, the Supreme Court upheld “decades of case law” holding that the word “drive” when used in a drunk driving statute, requires evidence of a defendant’s volitional movement of a vehicle. They further go on to say that the everyday usage of the phrase “to drive a vehicle,” is understood to mean movement of a vehicle.

However, there are exceptions. If an intoxicated person is stopped near or at an accident scene, or when a vehicle is found protruding into the street. Further, if the driver is seen driving by witnesses prior to being stopped. In these situations, the officer has reasonable cause to believe that the occupant of the stopped car was driving while intoxicated and can then be arrested.

In the Mercer case, the Superior court issued a writ of mandate directing the Department of Motor Vehicles to set aside its order revoking Mercer's driving privilege. The Superior Court held that Mercer had not been lawfully arrested because Mercer was legally parked next to a curb and the arresting officer had not observed volitional movement of the vehicle. Several Courts have held that observed volitional movement of a vehicle is required before a person's driving privilege may be suspended or revolked.

In the Mercer case, the DMV appealed the Superior Court's order and the Court of Appeal reversed and directed the Superior Court to reinstate the revocation order. The Supreme Court then granted review and upheld the Superior Court's order for Writ of Mandate, directing the DMV to once again set aside it's order revoking Mercer's driving privilege.

Anyone who has been arrested for driving under the influence should seek immediate assistance from an experienced DUI Defense Attorney who also has experience in dealing with the Department of Motor Vehicles.

Police Officers must follow procedures when detaining, questioning and arresting someone on suspicion of driving under the influence. It is the job of an aggressive criminal defense attorney to look for mistakes or misconduct when it comes to the actions of a police officer in making an arrest.

DUI Traffic Stop Must Have Reasonable Suspicion

Fri, 06 Jan 2012 09:31:30 -0800

Once an officer has pulled an individual over, the officer may ask the individual to step out of the vehicle. If the officer based the stop on reasonable suspicion, he may detain the driver only long enough to confirm or dispel the officer's suspicions. If the stop was based on probable cause, the officer may conduct a more thorough investigation.

A recent Supreme Court decision has upheld the lower standard of "reasonable suspicion" in State vs. Starkey. In that case, Starkey was arrested for driving under the influence of alcohol. The stop was based on the officer's observation/opinion that Starkey was attempting to avoid the police patrol car. Starkey's attorney filed a motion to suppress the evidence on the grounds that the officer lacked reasonable suspicion to stop Starkey. The circuit court granted Starkey's motion and suppressed the evidence. However, the Supreme Court then reversed the circuit court's decision and remanded the case for further proceedings.

In the Starkey case, the officer observed Starkey stopping and waiting until the officer was ahead and then turning. The Officer then turned and followed Starkey. Starkey made several attempts to avoid the officer and ended up going in a circle at which time the officer pulled Starkey over. The Supreme Court ruled that Starkey's actions warranted "reasonable suspicion". It is important to note that none of Starkey's actions were illegal. The sole basis for the stop was the police officer's suspicion. In my view, this is clearly a case in which an appeal was warranted and the Supreme Court's reasoning for it's decision to uphold the "reasonable suspicion" stop was weak at best.

Anyone who has been arrested for driving under the influence needs an experienced criminal defense attorney, specializing in DUI, who is familiar with the law as it relates to police officers and their duty to follow the law when it comes to stops and detention. A police officer that makes a mistake or fails to show "reasonable suspicion" can result in a charge of DUI being dismissed.

Orange County DUI Arrests Over New Year's

Wed, 04 Jan 2012 13:19:20 -0800

The Orange County CHP reported making 70 arrests for drunk driving this New Year's. That number is up significantly from 2011, which reported only 36. As a DUI Defense Attorney practicing in Irvine, California, my experience working with all of the courts in Orange County has shown me that Orange County is one of the strictest when it comes to drinking and driving.

The following are standard penalties associated with a conviction for driving under the influence or DUI, in Orange County, California:

DUI 1st Offense: Jail time (up to 6 months); fines (up to$1,000.00); community service; probation; DUI School; and driver's license suspension.

DUI 2nd Offense: Jail time (up to a year); fines (up to $1,000.00); community service; probation; DUI School; driver's license suspension; and vehicle impoundment.

DUI 3rd Offense: Jail time (up to a year); fines (up to $2,000.00); community service; probation; DUI School; driver's license suspension; and vehicle impoundment.

A conviction for DUI can carry long lasting effects on a person’s life and for that reason, it is important for anyone facing a DUI conviction, to have experienced legal representation. A good Orange County Criminal Defense Attorney, who has expertise in DUI arrests, will make every effort to have the charges reduced and/or dismissed. A key factor in choosing an attorney is to look for an attorney who is familiar with the Court in which the case is pending, as well as the other Courts in Orange County. A good relationship with the Judges, District Attorneys, Court Clerks and other personnel can influence a positive outcome and ensure that you get the best possible result.

Orange County DUI Arrest, Defenses and Sentencing

Fri, 30 Dec 2011 18:15:43 -0800

Driving Under the Influence or DUI is considered a serious offense in California and the Prosecution pursues the penalties and punishments seriously. Recent statistics have shown that there are approximately 13,000 DUI arrests in Orange County alone.

An experienced DUI Defense Attorney will look closely at the police report and at the conduct of the investigating officers. Specifically, any misconduct or violation of rights must be taken into consideration. Further, if a field sobriety test was performed, and this is what the arrest was based on, it should be challenged due to the fact that field sobriety tests are subjective, basically the opinion of the officer performing the test. If a roadside Breathalyzer is used, this must also be looked at carefully as the results are unreliable and there are too many ways to skew the results. The law does require that anyone being arrested for suspicion of DUI must take a chemical test. Blood or breath, at the police station, are the two choices. However, there is no legal obligation for anyone to perform a field sobriety test. If a breath test was used at the police station, the maintenance logs of the breath machine need to be examined. If blood was taken, the attorney may want to employ the services of an expert to perform a “Blood Split”, which can help determine the blood alcohol level at the time of the stop rather than at the time the blood was taken. This can sometimes result in a lower blood alcohol level.

Driving Under the Influence in Orange County, California

Tue, 27 Dec 2011 18:12:59 -0800

Holiday Weekend DUI Checkpoints in Orange County, California

Fri, 23 Dec 2011 17:40:23 -0800

Several police deparatments in Orange County will be conducting DUI checkpoints and saturation patrols throughout the upcoming holiday period. This will extend through and including New Years Eve.

In Irvine, a checkpoint is scheduled to take place along Culver Drive and Farwell Avenue beginning at 8:00 p.m. Friday. The checkpoint will stay in place until 1:00 a.m. Westminster Police Department will also be conducting a checkpoint on Friday, although the location has not been disclosed. A checkpoint has been planned in Laguna Niguel on December 30th as well.

DUI Roving Saturation Patrols and DUI Checkpoints have become new tools in the Orange County Sheriff's Department's efforts to crack down on drunk drivers. However, law enforcement officials believe that roving patrols are more effective than DUI checkpoints because the deputies working the roving patrols are trained specifically to identify impaired or intoxicated drivers and look specifically for signs of impairment. The California Office of Traffic Safety funds these roving patrols.

DUI Checkpoints, also known as, Sobriety Checkpoints, are roadblocks, set up temporarily on public streets, to catch drunk drivers and to cite others for Vehicle Code violations. The police departments conducting these checkpoints must adhere to strict guidelines, which have been established by the Courts. Anyone who is arrested for DUI, at a sobriety checkpoint, should contact an experienced Orange County California DUI attorney to determine whether the checkpoint was conducted according to the guidelines. If the police department conducting the checkpoint did not follow the guidelines properly, the checkpoint is determined to be unlawful and any evidence obtained during the arrest may not be admissible in Court.

The guidelines for conducting a DUI Checkpoint are as follows: 1) The establishment and location of the checkpoints must be decided by supervisory police officers, not officers in the field; 2) Police must use a neutral mathematical formula, such as every driver or every third, fifth, or tenth driver to determine who to stop; 3) Proper lighting, warning signs and signals, and clearly identifiable official vehicles are required; 4) The location chosen must be most effective in actually stopping drunk drivers, such as roads which have a high incidence of alcohol-related accidents and arrests; 5) The time and duration of sobriety checkpoints are also important; 6) High visibility is required so that the drivers can easily see the nature of the roadblock; 7) Each motorist stopped should be detained only long enough for the officer to question the driver briefly and to look for signs of intoxication; and 8) Sobriety checkpoints must be announced to the public in advance.

The Supreme Court has also stated that motorists who want to avoid a roadblock may do so and not be subjected to being detained merely because they attempted to avoid the roadblock. The motorist must have committed a vehicle code violation or displayed obvious signs of intoxication for there to be probable cause to pull the motorist over.

Anyone who is arrested at a DUI checkpoint in Orange County should contact an experienced Orange County DUI Criminal Defense Attorney to determine whether or not their Fourth Amendment rights against unreasonable searches and seizures, were violated.

DUI With Injury

Tue, 20 Dec 2011 09:24:40 -0800

DUI with Injury is considered a “wobbler”. Which means it may be filed as either a misdemeanor or a felony, depending upon the nature of the injuries. There is the “broken bone rule.” If the victim involved in the accident suffers a broken bone, the prosecution can and most likely will, file felony, as opposed to misdemeanor, charges. Also taken into consideration are the circumstances of the incident, as well as the criminal history of the accused, paying careful attention to any prior DUI’s.

To be charged with DUI with injury, there has to have been an accident and an injury. In order for the prosecution to charge someone with DUI with injury, there must be: 1) You drove while under the influence of alcohol or drugs; 2) While driving, you broke the law or acted in a negligent manner; and 3) Your unlawful act or negligence caused injury to another person.

Defending against a DUI with injury violation is approached in the same way as defending a DUI. An Orange County DUI defense attorney will explore all possibilities of proving that (1) you weren’t under the influence, and/or (2) that your blood alcohol level was inaccurately reported.

A skilled drunk driving defense attorney will also review all discovery available to ensure that all investigation, arrest, and breath-testing procedures were properly followed.

A Good Criminal Defense Attorney will then begin to look at the accident itself. Just because someone is involved in an accident and alcohol is involved, doesn't mean that the accident was due to intoxication. A good criminal defense lawyer will employ the opinion of an accident reconstruction expert who can independently evaluate whether the accident that caused the injury was the fault of the intoxicated driver.

When evaluating how an accident occurred, it is important to look at the following:

• The weather,

• Road conditions,

• Damage to the vehicles, and

• Any other relevant evidence that is acquired.

This is critical because when police arrive on the scene of an accident and learn that someone has been drinking, they tend automatically to assume that that person is to blame. Police investigators then write their reports based on that presumption.

“This is why DUI with injury charges are often reduced to DUI charges. It is often difficult for the prosecution to prove that it was your negligence that caused the other person’s injury, rather than the alleged fact that you were simply under the influence.”

DUI Chemical Test Refusal In California

Fri, 16 Dec 2011 09:24:40 -0800

In California, if you have a driver’s license, you are obligated to take a chemical, breath or urine test if you are arrested for DUI or DWI. There are consequences to refusing to take a chemical test. However, there are also defenses and anyone who is being charged with DUI and refusing to take a chemical test, should consult with an experienced DUI defense attorney to ensure that the arresting officers followed proper procedure.

To further explain, if you are pulled over and asked to take a roadside breath test, a Preliminary Alcohol Screening Test, otherwise know as a PAS test, under California law, you are not required to take the test. There are a lot of problems with the PAS test and thus, not necessarily the best option. However, if you are arrested for DUI, once you arrive at the police station, you must submit to a breath or blood test. It is recommended that you agree to a breath test, rather than blood. You need only submit to a urine test if you have been arrested for driving under the influence of drugs.

If you refuse to take either test, you are presumed to be under the influence and, along with being charged with DUI, the additional charge of refusing to submit to a chemical test, will be added. This allows the prosecution to enhance the penalties. On a first offense for DUI, you lose your license for 4 months. However, if you refused to submit to a test, you lose your license for one year.

There are strict guidelines as to what a police officer must advise someone who is refusing to take a chemical test. The officer must fill out a Chemical Test Admonition Form and read it, word for word, to the individual. The officer must then properly document the responses. If the police officer has failed to properly document the admonition form, an experienced DUI defense attorney will have a good chance of getting a "No Refusal" outcome, based on the fact that the officer didn't follow guidelines prescribed by law.

If an individual refuses at the scene to take a chemical test and is arrested, once at the police station, that individual can then change his or her mind and agree to a test. If however, the individual refuses to take a blood test and requests a breath test, and the officer refuses to allow the breath test and will only allow a blood test, this is not a refusal. This is an example of improper procedures on the part of the officer. The individual must be given the chance to take the test, and decide which test they are willing to take.

Refusing to take a chemical test if arrested for DUI has harsh punishments. The DMV will suspend your license of one year and if you have a prior, it is a two-year revocation of your driving privilege. Further, unlike a first offense for DUI, if you refuse to take a test, you may not apply for a restricted license.

If you are being charged with refusing to take a chemical test after being arrested for DUI, it is imperative that you hire a DUI Defense Attorney who is familiar with and knows the laws as they relate to refusals as well as the duties required by the arresting officer. Failure to properly follow guidelines and/or properly document the event on the part of the officer can result in a "No Refusal" verdict.