There is an interesting case out of Livingston County where a man was arrested and charged with DUI and then the case later dismissed.  According to the article, the man was involved in an accident and asked to take a breathalyzer test at the scene.  This, after the officer at the scene said he smelled alcohol on the man’s breath.  The man refused and was arrested, taken to the police station, booked and blood drawn.  Apparently, in Livingston County, once someone is arrested and the case submitted to the District Attorney, they must go ahead and file formal charges.  This is unfortunate for the individual in this situation because, even though it was later proved that he was not DUI, he now has an arrest on his record and a history of having a DUI filed in Court.   It is the right of any individual to refuse to take a roadside breath test and to refuse to submit to a field sobriety test.  However, when someone refuses, it usually results in being arrested and taken to the station where you are then required by law to submit to blood, breath or urine testing.  So as is the case with this individual, his blood results did prove that he was not DUI, but he was then faced with having the arrest and charges on his record.

In California, and more specifically Orange County, the District Attorney will usually wait until the results of the blood test are available before deciding whether or not to file charges.  This seems to make much more sense.  For the DA to file charges just based on the police officer’s opinion that the individual was, or may have been under the influence, doesn’t seem to make much sense knowing that if they wait for the results, they will have scientific proof one way or the other.

For someone to refuse to take a roadside breath test or submit to a field sobriety test, may make the individual look guilty or give an officer a reason to doubt sobriety.  So why would someone, who knows that they are not under the influence, refuse to submit to such roadside tests?  There are some who feel that the roadside hand-held breathalyzers are unreliable and may produce false results.  There are those who may refuse to submit to field sobriety tests merely due to the fact that they have balance issues and know that they will be unable to pass the test.  So there are legitimate reasons that people refuse these roadside tests, and as mentioned above, it is their right to do so.

So, what can an individual do if they are faced with the situation we are talking about here?  Can the record/arrest record be corrected.  The answer is Yes.  It is called a Petition for Factual Innocence.  The process works this way:  The Court is Petitioned to find the individual factually innocent based upon the circumstances presented.  The Judge will review the Petition, and any supporting documentation such as the police report and test results, and then make a ruling either in favor of the Petitioner or will deny the Petition.  In basic terms, the Judge must be able to determine that there was no reasonable cause for the arrest to have occurred.  The scenario above could be problematic in that the police officer said he smelled alcohol which, if the Judge wanted to, could determine that there was good cause to arrest.  But, given the circumstances and also, based on how the police report reads, it would seem that it is in the best interests of all to grant a Petition under these circumstances.

Anytime someone is arrested and charged with driving under the influence, all of the details beginning with the initial stop, all the way to the filing by the District Attorney must be reviewed.  Law enforcement must follow strict guidelines in stopping, testing and arresting an individual for DUI.  The process of administering field sobriety tests have guidelines, as well as administering a breathalyzer at the roadside.  Having an experienced DUI defense lawyer is the only way to determine that law enforcement have followed the rules and guidelines they are required to follow and to determine that your rights have not been violated.

Recent statistics have shown that there are approximately 13,000 DUI arrests in Orange County alone, out of nearly 200,000 in the State of California. In some years, more than 90 percent of Orange County DUI arrests result in conviction.

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 to determine the likelihood of getting the felony 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.

Most individuals arrested for DUI or Drunk Driving are employed and have families that depend on them. If convicted of Driving Under the Influence and sentenced to serve time in jail, this can be an enormous burden on one’s family and can jeopardize the job that provides the income for the family. For this reason, alternative sentencing is something that should be considered.

If you have been convicted of a DUI in Orange County, there are options for alternative sentencing. Some of these include:

Community Service: An experienced DUI attorney in Orange County should attempt to work with the DA and the Judge to lower the charges in exchange for doing community service.

CalTrans Work Program: The CalTrans Work Program is another option, generally set as a condition of probation. The CalTrans Work Program involves cleaning up litter along the roadways, clearing brush and cleaning graffiti where needed.

Sober Living Programs: As an alternative to jail, a good DUI Attorney will suggest a sober living program rather than jail. These programs provide housing, alcohol and drug counseling, education and employment assistance.

House Arrest with Electronic Monitoring: House arrest or home confinement allows an individual to continue their regular activities, such as going to work, attending school and caring for children or other family members.

Private Jail or Work Furlough: There are a few private jails in Orange County that often allow work furlough privileges and are a nicer alternative to county jail. These facilities can be expensive but much less disruptive to one’s life.

Anyone who has been arrested for driving under the influence should immediately consult with an attorney to make sure that they receive the best possible outcome.

 

Could A New Law In Colorado Make 3rd DUI’s In California A Felony?

There is a proposed new law being considered in Colorado, which would make a third DUI a felony. Representatives of Weld County are reintroducing a bill that would make a third offense for driving under the influence a felony. If this law passes, and the results prove to be beneficial to the public in reducing DUI’s, it could have an impact on other states, including California. The proposed law would allow prosecutors to seek class 4 felony charges for people charged with their third DUI within seven years or their fourth during any time period. If passed, the bill would also lengthen the time period convicted drunk drivers are required to have interlock devices installed in their vehicles. Rather than one year, it may be as many as five years.

It appears that Colorado is cracking down in a serious way on people who drive while intoxicated. California, Orange county specifically, is extremely strict when it comes to DUI and thus, may be watching Colorado carefully to see how this all plays out. Orange County is continually trying to come up with new ways to seek out and crack down on individuals who drive under the influence of alcohol or drugs.

Currently, in California, all DUI’s are misdemeanors unless they fall within one of three categories:

  • If an individual has any prior felony DUI charges on their record, a new DUI will be a felony

 

  • A fourth DUI within a 10 year period of time

 

  • If, due to an individual’s driving under the influence, any person other than the defendant suffers any injuries.

A conviction for a 3rd DUI in California may include the following:

  • Fines ranging anywhere from $390.00 to $1,000.00 (fees and enhancements may also be included)
  • The Court can impose 120 days in jail or, up to 1 year. Orange County typically requires jail time on a 3rd
  • Five years probation
  • 18-month DUI classes.
  • An individual convicted for a 3rd DUI will also be required to install an ignition interlock device in their car and face a three year license suspension.

Although Orange County is extremely strict when it comes to DUI’s, an aggressive DUI defense attorney may be able to work out alternative sentencing, which may include community service and/or house arrest.  People often feel that there is nothing that they can do if arrested for DUI.  Although this is sometimes the case, having a good DUI defense attorney look at your case may make a big difference.  He or she will know what to look for when it comes to police officer conduct and violation of rights.  Also, having the representation of a well respected and experienced attorney often times can help to minimize the severity of the punishment.

 

If you or a loved one has been arrested for driving under the influence, it is extremely important to consult with an experienced DUI defense lawyer before going to Court.

 

Orange County Cracks Down on Driving Under the Influence Drivers

Orange County continues to reinforce their commitment to crack down on individuals who drive under the influence of drugs and/or alcohol.

As they do every year, Orange County law enforcement agencies began their “Avoid Campaign” during the holiday season with their DUI task forces out in full force. It began on December 15, 2014 with the Orange County Sheriff’s Department searching out high risk DUI offenders with outstanding arrest warrants. Individuals who either failed to show up for their court date or who had violated the terms of their probation were sought out and arrested.

The Sheriff’s Department, and Sheriff’s Department’s Special DUI Warrant Service Operations, places a high priority on lowering deaths and injury with their DUI Task Forces, which includes searching neighborhoods for individuals with outstanding warrants.

As they also do every year, DUI check points were set up throughout Orange County during the holiday season. It is not yet known how many DUI arrests were made as a result of the checkpoints but, since the campaign began, the numbers seem to be slowly coming down as the word gets around about Orange County’s hard approach toward individuals who drive while intoxicated.

One DUI checkpoint in Mission Viejo netted 23 arrests. The checkpoint began on Friday, December 19th, between the hours of 6:00 p.m. and 3:00 a.m. Checkpoints are placed in locations that have the greatest opportunity to achieve drunk and drugged driving deterrence. It has been shown that these checkpoints lower DUI deaths and injuries by bringing more awareness and encouraging individuals to designate sober drivers.

The results of the Mission Viejo, December 19th checkpoint are as follows:

  • 690 Vehicles screened
  • 3 DUI-Alcohol impaired suspects arrested
  • 20 Drivers cited/arrested for operating a vehicle unlicensed or while suspended or revoked
  • 4 Vehicles towed for storage or impound

Orange County will continue to conduct these DUI Checkpoints, Saturation Patrols and DUI Warrant Operations, as it is believed that they are a deterrent to driving while under the influence. This is not only during the holiday season, but also throughout the year. They do step it up a bit during holidays and the summer months however, knowing that more people come to Orange County to visit and party during these times.

Because Orange County has special task forces devoted solely to DUI, it is no surprise that the number of individuals who are arrested in Orange County, whether residents or otherwise, is quite high.

Many people believe that if they are arrested for DUI, there is nothing that can be done about it. But, while in some situations this is true, that determination is best left to the experts, a DUI Defense lawyer in Orange County.

What most don’t know is that, DUI checkpoints have strict guidelines that they must follow. An experienced DUI defense attorney will be familiar with these guidelines and will be able to determine whether or not the stop and arrest is legal.

As with any stop by a law enforcement officer, there has to have been a reason to be pulled over. Officers are no legally allowed to just pull someone over because they are driving at 1:00 a.m.; there must be reasonable cause to do so.

There are many things to be considered if you have been arrested for DUI from the stop to the type of test performed. For this reason, if you or a loved one has been arrested fro DUI, it is extremely important to consult with an experienced DUI defense attorney to determine whether or not your rights have been violated.

 

 

 

 

Consequences Of DUI With Passenger Under The Age Of 14

In California, if you are arrested for driving under the influence and you have a passenger in your car under the age of 14, Vehicle Code section 23572 states that any sentence/punishment associated with the conviction of DUI may be enhanced. The enhancement depends upon whether it is your first, second or third offense for driving under the influence. For a first offense, the enhancement would be an additional 48 hours in jail and up to 90 days in jail for multiple offenses. This is in addition to your sentence for the underlying DUI charge.

So what this means is that when the District Attorney is filing their case, they may or may not include the enhancements for having a child under the age of 14 years. This often depends upon the circumstances of the arrest such as, the blood alcohol level of the defendant, the driving pattern, the age of the child, and the officer’s observations of the defendant during the initial stop.

On a more serious note, if someone is arrested for DUI with a child under the age of 18 in their car, they may be charged with Misdemeanor Child Endangerment, under California Penal Code section 273a, for willfully causing or permitting the child to be placed in a situation where his or her person or health may be endangered. The California Courts have determined that driving under the influence with a child in your car falls within the category of placing a child in a situation where his or her health may be endangered. Depending on the circumstances, 273a can also be charged as a felony.

After the case is submitted to the District Attorney, the DA has the discretion to charge a straightforward DUI, a DUI with sentence enhancements or the separate of charge of misdemeanor or felony child endangerment. Under Penal Code 273a, the prosecution may charge child endangerment regardless of the age of the minor.

Not every DUI where a child is present is filed as a misdemeanor child endangerment. The DA will look at everything from the blood alcohol level to how the driver was driving. As an example, if someone is pulled over for a minor traffic violation or mechanical violation, and not due to “drunk driving”, their blood alcohol level was just at or barely above the legal limit and the child is securely fastened in their seat, given this set of circumstances, the District Attorney may chose to file charges of DUI only or DUI with an enhancement for having a child under the age of 14 in the car.

In order for the prosecution to use a sentence enhancement, it must be proven that you were driving under the influence and that you had a minor, under the age of 14, in the car with you. Most prosecutors will take into consideration the following when determining whether or not file use sentence enhancements: 1) whether you intended to harm the child, 2) your blood alcohol level at the time of the arrest, and 3) your driving pattern prior to the stop.

It is important to note that you cannot be charged with enhancements or child endangerment if you are not convicted of the initial DUI. For this reason, it is extremely important to consult with an experienced DUI defense lawyer, as he or she may be able to influence the outcome of your conviction.

In California, when a driver is arrested for driving under the influence, they are given a temporary, 30-day license from the Department of Motor Vehicles. On that notice, it states that the license is good for only thirty days and that after that time, the driver’s license will be suspended unless an Administrative Per Se hearing is requested. This request must be made within 10 days of the date of the arrest. The following is a list of situations for which the DMV may suspend your license:

  1. Driving with a blood alcohol level of .08% or higher;
  2. Refusing to submit to a chemical test or, if under 21 years of age, refusing to submit to a PAS test;
  3. Refusing to submit to a PAS test if you are on DUI probation;
  4. Driving with a blood alcohol level of .01% or higher if on DUI probation;
  5. Driving with a blood alcohol level of .01% or higher if under 21 years of age;
  6. Driving a commercial vehicle with a blood alcohol level of .04% or higher.

As well as the DMV suspension action, all Court convictions for driving under the influence will trigger a license suspension. The only exception to this is if the driving under the influence charge can be pleaded as a “wet reckless”. A conviction for wet reckless does not trigger a license suspension.

The length of the suspension is dependent upon a how many prior convictions the individual has and whether the conviction is for driving under the influence or driving under the influence and causing bodily injury.

For a first time DUI, the DMV will impose a six-month suspension. The good news is that after serving a 30-day “hard suspension”, the individual may apply for a restricted license. To do this, you must first enroll in a first offender program, get a SR22 from your insurance company, and pay a reissuance fee to the DMV. If all of this is done, the DMV should issue you a restricted license, allowing you to drive to and from work and your alcohol program.

It is important to note that if you choose to apply for a restricted license, the total suspension time is six months. If you choose not to apply for a restricted license, and choose to accept the original suspension, the suspension period is four months. It is also important to note that if you refuse to submit to a chemical or breath test when asked to do so by a police officer, your driver’s license will be suspended for one year and, the refusal makes you ineligible for a restricted license.

I always recommend requesting an admin hearing with the DMV, along with a stay on the suspension. However, there are some situations where it may be best to just get the suspension started. An example of this would be if, the evidence is overwhelmingly in the prosecutor’s favor and, the individual is in custody on this or another matter, it might make more sense to let the suspension period start to run.

There are strategic reasons for and against an APS hearing, which is why it is always best to seek the advice and assistance of an experience DUI attorney immediately if you have been arrested for driving under the influence.

 

 

Driving Under The Influence And Hit & Run In Orange County

Under California law, anyone who is involved in an accident is required to immediately stop at the scene, provide the other party involved with contact and insurance information, and to assist anyone who may have suffered injures. Failure to do any of these requirements can result in being charged with hit and run. More seriously, being under the influence of alcohol at the time of the hit and run, will result in multiple charges and potentially serious consequences.

DUI at the time of a hit and run usually involves several offenses and may result in one or more of the following charges:

  • Driving under the influence
  • Hit and run
  • If there were injuries, bodily injury
  • If someone was killed, vehicular homicide
  • Reckless driving

Any prior convictions for driving under the influence will be taken into consideration by the District Attorney and will result in more serious consequences.

DUI with Hit & Run – Misdemeanor or Felony?

Are DUI’s with hit and run charged as misdemeanors or felonies? The answer is it depends. If there were no injures as a result of the hit and run, then it will be charged as a misdemeanor. However, if you have prior DUI’s, it may be filed as a felony and, if there were serious injuries or death as a result of the hit and run while DUI, this would be considered a felony as well.

A first offense of DUI Hit & Run with injuries can still result in a prison sentence and a maximum fine of up to $10,000.00. If it is the second, third or more offense, the penalties and punishments will be much harsher.

Can a Felony DUI Hit & Run be charged or tried as a Misdemeanor?

The answer is yes. It’s called a Wobbler. What this means is that, depending upon the specific circumstances of the offense, the District Attorney can agree to file the case as a misdemeanor, drop the case down to a misdemeanor or try the case as a misdemeanor. The result of this is that the penalties are not as severe. For instance, the penalty may be probation rather than doing time or, jail time rather than prison time. Whether or not the District Attorney can be persuaded to try the case as a misdemeanor will depend on how serious the injuries were, the degree of neglect or malice and any prior DUI convictions, if any.

Vehicular Manslaughter or Homicide as a result of DUI Hit & Run is of course a felony and is considered a violent crime. The consequences are quite severe in that an additional five-year state prison term can be added to any sentence, as well as any other penalties that are applicable.

Anyone who has been arrested for DUI Hit & Run, whether it be a felony or misdemeanor should immediately seek the assistance of an experienced criminal defense lawyer, and one that has extensive experience dealing with this type of crime.

 

DUI’S WITH PRIORS

If you have been arrested for driving under the influence in Orange County California, hiring an experienced DUI Defense Lawyer should be your first step toward getting the DUI arrest behind you. Although a conviction for first time DUI will result in penalties and fines, having an aggressive Orange County DUI defense attorney can help to mitigate the severity of the consequences.

It is true that a first-time DUI can cause extreme stress in someone’s life but, being arrested and charged with a second, third or fourth DUI is very serious and can have long lasting, and devastating effects on a person’s life for years to come. At the very least, consulting with an attorney who has experience in dealing with prior offense DUI’s, will give you an idea of what you may be facing and, whether or not the District Attorney has a slam-dunk case against you.

When dealing with a new DUI arrest with priors, it is absolutely crucial that your attorney look closely at every detail, beginning with the stop, and all the way to the blood or breath collection process. Did the police officer have probable cause to pull you over in the first place? What some people don’t realize is that a police officer can’t just pull someone over because they see them pulling out of a bar at 1:30 a.m. and assume that person has been drinking. The officer has to observe some sort of traffic violation or problem with the vehicle itself, in order to pull that person over.

The administration of the field sobriety tests, if any, must be looked at, as well as any roadside administration of a breath test. If no roadside tests were performed, the whole process of blood or breath collection at the station needs to be evaluated by your attorney to be sure it was legally done. The maintenance logs for the machines used also need to be evaluated to determine that they were functioning properly. These are all extremely important because, this is the basis for the prosecution’s case and it is your attorney’s job to look for holes and errors in their case.

The following is a brief review of the penalties and punishments for DUI convictions and, as can be seen, the severity of the punishment increases with each new conviction:

Conviction for First DUI

Typically, for a first time DUI conviction, you driving privilege will be suspended for up to four months. The Court fines and fees range from $390.00 to $1500.00 and you will be required to attend a 3-month or 6 month alcohol class. The length of the class will depend upon what your blood alcohol level was. The Court can impose a jail term up to 6 months but typically, a 3-year informal probation is imposed instead.

Conviction for Second DUI

If you are convicted of a second DUI, you can be sentenced to 90 days to 1 year in jail. Fines are typically $390.00 to $1,000.00. There is also the possibility of penalty assessment. Your license may be suspended for up to two years and there is a mandatory 18-month or, depending upon your blood alcohol level, 30-month alcohol treatment program.

Conviction for Third DUI

A conviction for a third DUI can carry a jail term for 120 days to 1 year. The fines are the same as the second DUI conviction, which is $390.00 to $1,000.00. However, your license suspension can be for up to three years and the alcohol treatment program is the same, 18 to 30 months.

Conviction for Fourth DUI

If you are convicted for a fourth DUI, you may be facing 180 days to 16 months in jail. With a fourth conviction, the prosecution will typically demand some sort of jail time however; there are alternatives to this which your attorney should fight for. The fines are the same as with a 2nd and 3rd DUI but the license suspension is increased to up to four years.

If you or someone you know has been arrested for driving under the influence, contacting an experienced DUI defense attorney should be the first priority in an effort to minimize the severity of the consequences of a conviction for driving under the influence.

 

 

 

Typically, if you are arrested for driving under the influence or driving while intoxicated, you will be charged with a misdemeanor. However, there are situations that can and will result in a felony DUI. Here are some examples of felony DUI’s:

  1. Fourth or More DUI

A fourth, or more, arrest for DUI, within a ten-year period, will automatically be filed as a felony. A felony is obviously more serious in terms of the consequences but it also has a more serious long-term effect on a person’s life. A conviction for a 4th DUI typically requires jail time. However, depending upon the individual’s circumstances, alternative sentencing may be an option. For someone who has a family and a job, and who may be the sole support of their family, an aggressive DUI defense lawyer is absolutely crucial. Getting creative with the sentencing that will both satisfy the Court and help the individual keep their job, should be the goal of the attorney.

  1. DUI with Great Bodily Injury

If you drive while intoxicated, and cause “great bodily injury” to your passenger or another, you may be charged with felony DUI. In order for you to be charged with great bodily injury, two things must be determined: 1) You have to be at fault for the collision; and 2) The physical injuries sustained by your passenger or another, must be determined to be “great bodily injury”. When the District Attorney is reviewing the file, he or she will review the case to determine how serious the injuries are.

  1. Past DUI Felony Conviction

If you have a prior conviction for felony DUI, even if it is only one prior, you may be charged with a felony if you get a second. The key here is that the prior was a felony.

  1. Vehicular Manslaughter While Intoxicated

Vehicular Manslaughter is defined by Penal Code section 191.5(a) and states: “Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where driving was in violation of Section 23140, 23152 or 23153 of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, with gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.”

It’s important to note here that, when someone is convicted of a DUI, at the time of the sentencing, they must sign what’s called a “Watson Waiver”. This waiver basically says that you understand that if you get a DUI in the future, and that the DUI caused the death of another person, you can be charged with second-degree murder rather than manslaughter.

 

Driving under the influence, or driving while intoxicated can result in serious consequences. But, being arrested and charged with DUI in Orange County may elevate the level of severity and make it more difficult to achieve a favorable outcome. The reason for this is that Orange County is generally extremely strict when it comes to drunk driving or drug driving. For this reason, if you are arrested for DUI anywhere in Orange County, your best chance at a favorable outcome is to consult with and engage the services an experienced DUI defense lawyer who is familiar with the district attorneys, judges and court staff in the Orange County Courts.

Most people do not realize how much power the California Department of Motor Vehicles has until they are forced to come in contact with them.  Unfortunately this is usually as a result of being arrested for driving under the influence.

In California, the law allows the DMV to conduct their own administrative hearing to determine whether an individual was driving with a blood alcohol of .08 or higher, regardless of the outcome of any criminal proceedings.  Because the DMV administrative hearing is not a criminal hearing, they are not held to the same standard and the individual being accused of DUI is not afforded the same constitutional protections as they are in a criminal proceeding.

The DMV hearing officers who conduct these administrative hearings are not lawyers or judges and are not required to have legal degrees.  They act as both prosecutor and judge when conducting a hearing.  They rely on the information they receive from the arresting agency and on whatever blood alcohol results the agency submits.  Although the hearing officers should be concerned with whether or not the arresting officers followed proper procedures when stopping, detaining and arresting an individual, their conduct at the hearing seems to indicate that they are not.  For example, if a police officer does not have reasonable cause to pull someone over, and it can be proven, the court case would have to be dismissed, regardless of the results of the blood alcohol level of the individual.  The same should apply to the DMV Administrative Hearing but, as evidenced in a recent case in Orange County, the DMV continually ignores police officer errors.  In this particular case, the police officer illegally obtained a test showing that the individual’s blood alcohol was over the legal limit and therefore, the case was thrown out.  However, even in the face of a court ruling that the test was obtained illegally, the DMV chose to ignore this and suspended the individual’s license anyway.

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