Penal Code Section 191.5 defines Gross Vehicular Manslaughter as:

(a) The unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the 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, and 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. A conviction of 191.5(a) is punishable by imprisonment in the state prison for 4, 6, or 10 years.

(b)  The unlawful killing of a human being without malice aforethought, in the driving of a vehicle, where the 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, but without gross negligence, or the proximate result of the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.  A conviction of 191.5(b) is punishable by imprisonment in a county jail for not more than one year or by imprisonment pursuant to subdivision (h) of Section 1170 for 16 months or two or four years.

You may be charged with vehicular manslaughter while intoxicated if you: (1) Are driving while under the influence of drugs or alcohol; (2) Your actions could result in the death of another; and (3) Someone is killed as a result of your negligence.

Being involved in an accident where someone dies is a devastating experience for anyone.  But if you are involved in a fatal accident, and you have been drinking, the devastation is magnified by extreme guilt and fear.  However, is important to remember that there are defenses to this type of charge.  It is common for authorities to assume and place blame on the driver who has been drinking whenever there is an accident involved.  But, just because you have been drinking doesn’t and shouldn’t automatically mean that the accident was your fault.  An experienced criminal defense attorney, who has experience in dealing with DUI involving accidents, will know what defenses are available and know how to use them when appropriate.  A few examples of defenses to vehicular manslaughter while intoxicated are:

(a) that you were not intoxicated at the time of the accident.  It could be that you had had a drink or two but are not legally intoxicated.  An experienced DUI defense attorney will use all defense available in a typical DUI arrest such as challenging the blood alcohol results and the tests performed.

(b) your actions were not negligent or grossly negligent;

(c) your actions, whether negligent or not, was not what caused the death; and

(d) your actions were the result of a situation that happened suddenly and you acted accordingly.

Every case and every situation is unique in it’s own way.  When facing a charge as serious as Gross Vehicular Manslaughter while intoxicated, finding the right criminal defense attorney who will explore every defense possible, can make the difference between jail time and straight probation.

 

Can I Fight My DUI Case

Being arrested for driving under the influence of alcohol or drugs doesn’t mean that you will be convicted of driving under the influence. An experienced DUI defense lawyer will know the defenses available and will know what to look for when reviewing your case.

Your driving pattern is usually the first thing an arresting officer notices, and is usually the first thing the District Attorney will focus on. The police report will most likely document some sort of traffic violation or weaving within your lane. But, just because you are a bad driver doesn’t mean you were intoxicated. People commit traffic violations all the time while sober and weave within their lanes for a variety of reasons. So, these driving patters, which an officer relies on, are not a reliable indicator that an individual is driving drunk.

The police report will also identify what the officer refers to as “objective signs of intoxication”. This, like the driving pattern, can be explained. Objective signs typically include: (1) the odor of alcohol on your breath; (2) slurred or slow speech; (3) red, watery eyes; (4) a red or flushed face; and (5) the individual was unsteady on their feet. All of these objective signs are listed on the officer’s DUI arrest form. All he or she needs to do it check the box without any sort of explanation whatsoever. Further, these objective signs can have many explanations that have nothing to do with alcohol.

For example, someone with red, watery eyes may be very tired, may have eye irritation, may have a cold or may suffer from allergies. The smell of alcohol may be the result of having had one drink. Being unsteady on your feet, while performing a field sobriety test is not unusual. There are many individuals who have balance problems. If you couple that with being nervous, it is understandable how someone would perform poorly on a field sobriety test.

The next step an officer uses to determine intoxication is the field sobriety test. These hand-held, roadside intoxilyzers are notoriously unreliable.   The maintenance logs and calibration logs need to be examined closely by an attorney who understands what they are looking for.

What most people do not know is that, the officer who is administering the breath test, must observe the individual for 15 minutes prior to the test being administered. Most officers use this 15-minute time period to do their paperwork or get the intoxilyzer machine ready, rather than observing the individual, as is required. An experienced DUI defense attorney will seek out any video of the stop and field sobriety tests, looking for signs that the officer did not follow the proper procedures.

So there are many details that need to be examined and many defenses that must be explored when defending a driving under the influence charge. Hiring an aggressive, experienced defense attorney is the best way to ensure that your rights have not been violated and to know that all defenses have been considered.

Driving Under the Influence of Drugs

California has strict laws when it comes to driving under the influence of alcohol and/or drugs. Drugs, as defined by California law, include anything other than alcohol that may affect a person’s brain, muscles or nervous system. It is considered driving under the influence if a drug, prescription or otherwise, affects your ability to drive like a sober person.

The District Attorney may file criminal charges for driving under the influence of prescription drugs, over the counter drugs or illicit drugs. This is often surprising to my clients when they come to me with proof of a legal prescription. What I explain to my clients is that just because you have a doctor’s prescription to take a certain drug, that does not make it ok to drive while you are under the influence of that prescription drug. There are many types of medication that have an affect on our thinking, seeing and motor skills. For this reason, people are advised not to drive when taking certain types of medication.

With alcohol, there is a specific level that is acceptable to be at while driving and can be measured. But with drugs, there is no legal level of driving after having taken drugs. For this reason, the prosecution does have the burden of proving that the level of drugs was such that it impaired the person arrested, enough that they were unable to drive like a sober person.

There are defenses to a charge of driving under the influence of drugs, depending upon your circumstances and the drug(s) in question. Some of the more common defenses are: (1) Having drugs in your system does not, in and of itself, mean that you were under the influence; (2) Signs of drug impairment, which is what an arresting officer will look for, can be caused by a multitude of other reasons; and (3) The procedures used to collect and test the blood or urine, may not be in compliance with the law.

Just like driving under the influence of alcohol, DUI of drugs is a misdemeanor but can be filed as a felony under certain circumstances. The penalties are typically the same as well. Penalties include informal probation, fees and fines, DUI School and a license suspension. However, if this is your second, third or fourth offense, the penalties are more severe. The fines may be higher, the DUI class/school longer and a more strict driver’s license suspension.

If you have been arrested to driving under the influence of drugs, seeking the advise of an experienced DUI defense attorney should be your first step. An aggressive DUI defense lawyer must review everything from the initial stop to the testing procedures to determine whether your rights were violated.

Defending a DUI in Orange County is a specialized field of law, which requires an experienced defense lawyer. Understanding the science associated with blood alcohol testing, as well as understanding evidentiary law, combined with criminal and constitutional law, is of key importance when defending someone who has been charged with driving under the influence. Equally as important, is understanding the rules and guidelines that the Orange County law enforcement agencies must adhere to when stopping and ultimately arresting someone.

An attorney who possesses these qualifications will have a good understanding of how to uncover the weaknesses in the evidence and in the prosecution’s case. Every arrest and every DUI case is different, but an aggressive DUI defense lawyer will always strive to minimize the impact that a DUI has on a person’s life, in every case. The focus should always be to attempt to reduce the charges or have them dropped altogether.

While some DUI cases are fairly simple and straightforward, there are those that are more complicated and require review and examination by a good DUI defense attorney in order to determine what, if anything can be done to minimize the negative impact that the arrest, and potential conviction, may bring.

California DUI laws are strict and Orange County specifically, has a very low tolerance for those individuals who have been arrested for DUI. The consequences for a conviction may include jail time, loss of your driving privilege, expensive fees and fines and court ordered DUI school or classes. Depending upon the circumstances of your arrest, blood alcohol level, and your past history, the severity of the consequences increases with the severity of the circumstances.

Contrary to what most people believe, there are defenses to DUI. Your attorney must peal back and analyze all layers, starting with the initial stop. It must first be determined if the stop was legal. Did they have probable cause or reasonable suspicion to make the stop? This is a very key point because the law requires that there be a good reason for an officer to pull someone over. If it can be determined and proved that the stop was not legal, then anything else after that is not admissible and therefore the case dismissed.

The field sobriety test is one of the key tools that an officer will use. But, this is a subjective test, which alone by itself cannot determine intoxication. This is something an officer uses to help him determine whether or not to precede with the investigation. Some people will perform very well when being administered the field sobriety test and others, whether they have been drinking or not, will perform poorly. Further, there are guidelines as to how the field sobriety test should be give. Often times, these tests are given incorrectly.

The roadside Breathalyzer is another tool used when an officer is trying to determine whether or not the driver has been drinking. The problem with this roadside, handheld breathalyzers is that, if they have not been properly calibrated and/or maintained, can result in a false reading. For this reason, the attorney, making sure that the machine has been properly maintained, should always examine the calibration and maintenance logs.

There are other things to consider like, if a blood sample was given, what is the timeline. When did you start drinking and when did you have your last drink. What had you had to drink and eat, when did you start driving and what time was the blood draw. All of these details must be carefully looked at because it can determine what your true blood alcohol level was at the actual time of driving.

The ultimate outcome of the case rests on the evidence, which is why it is so important to hire an experienced DUI defense attorney who will take the time to look at everything in an effort to find the weaknesses in the case.

 

 

When you hear the word “enhancement”, it sound like a good thing. But when you are talking about enhancement as it relates to a DUI sentence, it means that the potential sentence may be enhanced, meaning additional penalties.

An enhancement adds additional penalties to a dui penalty due to some other factor associated with the dui incident. Here are some situations, which may cause an enhancement:

  1. If you refuse to submit to a blood alcohol test after you have been arrested, the District Attorney may add an enhancement, which could result in additional jail time or higher fees and fines.
  2. If your blood alcohol level is a 0.20 or higher, which is more than twice the legal limit, the District Attorney may, and probably will, include in their filing an enhancement for high “BAC”. Usually this means that the class you will ultimately be ordered to take will be longer than if your BAC was below 0.20. The results of the blood alcohol test, whether it be a breathalyzer or blood test, will play a role in the charges that will be brought, as well as the penalties.
  3. If you were speeding or driving reckless, the DA may include an enhancement for that. As a general rule, driving 20 miles over the speed limit on surface streets or 30 miles over the speed limit on a freeway can result in an enhancement.
  4. Having a minor in your car, under the age of 14, is an enhancement that may result in jail time being added to your sentence. This may also result in an additional charge of child endangerment.
  5. Prior DUI convictions within a 10 years can result in an enhanced sentence.

If you are facing a driving under the influence charge with enhancements in Orange County, an experienced DUI lawyer may be able to get the enhancements dropped. An aggressive DUI defense attorney, who is respected and has a good reputation among judges and prosecutors, will help you get the best possible outcome.

 

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.