Articles Posted in DUI

One of the most frequent questions posed to me during a consultation is “what is this going to cost me?” While my fees are based upon the type of case and the underlying facts, there are numerous other associated costs with drinking and driving.

The simple fact is this: Almost all adult drivers have had alcohol at some point during the same day they drove a car. We are notoriously poor at judging our level of intoxication (almost all my clients tell me they did “really well” on the field sobriety tests) and end up behind the wheel when maybe it wasn’t such a good idea.

So we maybe feel relaxed, loose, a little “buzzed” and ok to drive. I even had a former colleague tell me he drove better after a drink! While that is embarrassing to hear, it’s understandable. One drink usually loosens us up, makes us a bit less inhibited. But it still creates a risk for the driver and all around him. That risk climbs almost exponentially the more the driver drinks. So what about the fines, assuming you don’t kill or hurt someone?

Anyone can have their conviction for DUI expunged as long as they were placed on probation and have successfully completed their probation. When we say, “successfully completed their probation”, for purposes of expungement, this means that you have completed your probation without any probation violations. In a case where your probation has been completed but you had a probation violation, the judge has the discretion of whether or not to grant the expungement. If the probation violation was something minor, like forgetting to make a payment, the judge will usually grant the expungement. However, if the violation was more serious then the judge may exercise his discretion and deny the petition. So, what this means is that even if you have completed your probationary period, the judge may not grant the petition for expungement if during your probationary period you violated your probation. Some of the more serious violation that may prevent an expungement from being granted might be a conviction of driving on a suspended license or being arrested on another misdemeanor or felony matter while on probation for your original DUI conviction.

The good news is that if the judge denies your petition for expungement, you may, at a later date, again petition the court for an expungement of your conviction for DUI. If enough time has passed, and you have no arrests or new convictions, the chances of getting your case expunged are much higher. In this situation, you would need to consult with an attorney to discuss the type of violation and get an opinion from that attorney as to whether or not they believe you may be successful. There is no guarantee, and an attorney will not be able to say with 100% certainty whether or not you will be successful, but an attorney who has had experience expunging DUI convictions will have a pretty good idea of whether or not you will be successful.

So what affect does an expungement have on your record? Most people believe that once your case has been expunged, it simply disappears from your record. This is not the case. When expunging a conviction of any kind including a DUI conviction, rather than your case showing up as a conviction for DUI and a plea of guilty, the case will show, a plea of not guilty and the case dismissed.

So here is a detailed explanation of how it works: Your attorney will file a Petition for Expungement with the Court. A Judge will review the Petition and if it is granted, you withdraw your guilty plea, re-enter a plea of not guilty and your case is dismissed.

For most people, the benefit of having your conviction expunged is for employment purposes. Once your case is expunged, your employer or perspective employer cannot use your conviction when deciding whether or not to hire or promote you. Also, you no longer have to admit to the conviction on a job application. However, there is an exception to this. The obligation to disclose or not disclose your conviction does not apply when it comes to state licensing or to teachers. The licensing board may use your conviction when determining whether or not to grant or renew your license.

Anyone who has a conviction for DUI, or any misdemeanor conviction for that matter, should consult with an attorney to determine whether or not they are a candidate for an expungement. There are definite benefits and could make the difference is being hired or promoted within your current job.

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Orange County law enforcement agencies have been aggressively tackling the DUI problem for several years now, pushing for more saturation and grants for DUI checkpoints. Officers on foot patrol have also been put in place in an effort to, according to officials, help intoxicated individuals get rides home.

According to the Office of Traffic and Safety, in 2011 Huntington Beach was number 1 out of 56 California Cities, with alcohol-related collisions. More recently, The State Office of Traffic and Safety has once again released information suggesting that Huntington Beach has the most alcohol-related crashes in California.

The Huntington Beach Police Department has complained that there is one bar in particular being linked to excessive drunk driving arrests. According to authorities, within a 22- month period, 72 individuals were arrested for driving under the influence after leaving this particular bar. There are two other bars in Huntington Beach that come in second and third as being linked to the most arrests for DUI in Orange County.

Obviously, these particular establishments are being watched by law enforcement agencies. There are officers who are trained as DUI specialists, trained to seek out drivers who are drinking and driving. So if they know that a particular bar has been linked to several dui related accidents that is where they will be waiting and watching.

Other top ranking cities were Costa Mesa, City of Orange, Fullerton, Mission Viejo, Irvine and Garden Grove. In 2010, Huntington Beach was ranked at number 16 and Santa Ana was the top ranked Orange County City at number 8. Newport Beach and Fullerton were also mentioned in the ranking.

All Orange County law enforcement agencies beef up their DUI campaigns during the holidays. This year, during the 4th of July holiday, the “Avoid the 38″ crackdown on DUI was expanded from Wednesday through Sunday, because the Fourth of July fell on a Thursday. This resulted in 240 arrests for being made for allegedly driving under the influence. The “Avoid the 38” name refers to the 38 law enforcement agencies in Orange County.

In other counties, such as Sacramento, law enforcement agencies have begun sending under cover officers into bars, posing as patrons, and looking for people who appear to be intoxicated. They follow them out to their car, and once they get in and drive away, they call officers who are waiting in marked police cars and give them the description of the vehicle and the individual. The officers in the marked cars then locate the car and proceed to pull them over and arrest them.

Whether it is a DUI checkpoint or a roving patrol, there is no doubt that arresting officers make mistakes. Breathalyzers and field sobriety tests are unreliable in that the breathalyzers results are easily manipulated and the field sobriety tests are strictly subjective. Although the officers who conduct the roving saturation patrols are “trained to look for signs of impairment”, they are not experts; they are human beings capable of making mistakes and misjudging.

Anyone who has been arrested for a DUI should contact an experienced DUI Defense Attorney. A good Orange County Criminal Defense Attorney, specializing in DUI’s will examine the stop, the tests administered and the details surrounding the arrest to determine whether or not the arresting agency followed proper procedures.

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Driving Under the Influence or DUI is considered a serious offense in California and the Prosecution pursues the penalties and punishments seriously. Orange County specifically is extremely strict when it comes to prosecuting those charged with this offense. Recent statistics have shown that there are approximately 13,000 DUI arrests per year in Orange County alone.

When I meet with clients who are facing a possible conviction for driving under the influence, I am extremely aware of the fact that a conviction for DUI can carry long lasting effects on a person’s life. This is why I always advise anyone who contacts me for advice to hire an experienced DUI defense attorney. My goal is always to make every effort to have the charges reduced and/or dismissed. A key factor in my success has been that I am familiar with all of the Courts in Orange County; I have a good relationship with the Judges, District Attorneys, and Court Clerks. I have developed these relationships over the past 20 plus years practicing criminal defense law in Orange County, California. These positive and mutually respectful relationships can often times influence a positive outcome and ensure the best possible result.

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 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. In this type of situation, my experience has given me the tools and knowledge that is necessary to determine whether there is a possibility of having a felony charge reduced to a misdemeanor.

A conviction for 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.

My first priority is always to 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 or roadside, handheld breath 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.

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As the summer approaches, students head home from college and that California fun in the sun state of mind sets in, Orange County law enforcement agencies are gearing up for one of the busiest DUI seasons.

In an effort to crackdown on impaired drivers, the Santa Ana Police Department will begin their summer campaign. This actually doesn’t really end until after Labor Day. Saturation Patrols and DUI Checkpoints will be utilized to apprehend drivers who are driving under the influence of alcohol and/or drugs.

DUI Roving Saturation Patrols and DUI Checkpoints are now regularly used tools in the 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. 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 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.

What Are The Guidelines For Conducting a DUI Checkpoint?

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 as they are approaching;
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.

Most people don’t know that you may avoid a checkpoint, if you come upon one. You may choose to turn and go around the checkpoint rather than going through it. The Supreme Court has ruled 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 DUI Criminal Defense Attorney to determine whether or not their Fourth Amendment rights against unreasonable searches and seizures, were violated.

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If you have been arrested for driving under the influence in Orange County, there are two separate proceedings that are triggered by the arrest. One is the court proceeding and the other is the Department of Motor Vehicles suspension hearing. These proceedings and hearings are independent of each other and each has their own set of rules.

Once arrested, the arresting officer will take your drivers license away and issue you a temporary license. The temporary license is good for 30 days and provides important information. One very important piece of information is that you have only 10 days from the date you are arrested to request an Administrative Per Se Hearing with the Department of Motor Vehicles. The hearing will be scheduled approximately 30 to 60 days out and your driving privilege is then extended until after the hearing and a decision has been made. You have a right to have an attorney represent you at the DMV hearing, as well as throughout the Court process.

The benefit of having an attorney represent you in both the DMV hearing as well as the Court hearing is that, an experienced DUI defense attorney will be familiar with the laws associated with the stop, detention and tests associated with an arrest for driving under the influence. Police reports can reveal very important information about the stop and ultimate arrest that may be beneficial to the defense of a driving under the influence charge. Police Officers have strict guidelines as to the procedures they must follow when stopping and questioning someone for DUI. If the report is not properly documented or there are inconsistencies, an experienced DUI defense lawyer will use these inconsistencies or errors in an attempt to have the case dismissed.

A 24-year-old woman was arrested and charged with three misdemeanor counts of Driving Under the Influence and Child Endangerment after she crashed into a parked car in Anaheim, California. A four-year-old child was injured in the accident, and was taken to the hospital where she was treated and later released. Because the child was a passenger in the driver’s car, there is the additional charge of child endangerment.

In this situation, not only is this woman facing the added serious charge of child endangerment, she faces the possibility of sentence enhancements if convicted of the DUI charge. In situations where a person is convicted of DUI and, at the time of the arrest for DUI, had a child under the age of 14 years in the car, the court may impose sentence enhancements of an additional 48 hours in jail, on top of the penalties and punishments associated with the DUI conviction. The enhanced jail time goes up with every prior DUI a person has suffered.

As previously mentioned, a person must be convicted of Vehicle Code Section 23152, driving under the influence, in order for the court to impose sentence enhancements. This means that if your attorney is successful in fighting the DUI charge, the enhanced punishment would obviously not apply. However, even if your attorney is unable to get the DUI charge dismissed, a good DUI defense attorney will work aggressively to get the DUI charge reduced in order to avoid the sentence enhancement. As an example, a successful plea bargain might be a reduction from DUI to a wet reckless. Although a wet reckless is priorable when it comes to any future DUI charges, the enhancement for having a child in the car would not apply.

The charge of child endangerment, Penal Code section 273a, is what’s known as a “wobbler” meaning that the District Attorney can elect to file it as either a misdemeanor or a felony, depending upon the circumstances of the case and the prior criminal history of the person being charged.

The prosecution must prove certain elements of the crime in order for a person to be convicted of Penal Code section 273a. Those elements include:

1. The willful inflection of unjustifiable physical pain or mental suffering on a child, under the age of 18 years, or
2. That, as a result of criminal negligence the child was allowed to suffer unjustified physical pain or mental suffering, or
3. That under your control or care, you:
a. Willfully caused, and as a result of criminal negligence, allowed the child, or the health of the child to be injured; or
b. Allowed the child to be placed in a situation they, or their health, was endangered.

The penalties for a conviction of misdemeanor child endangerment may include:

1. A minimum of four years informal probation;
2. Up to one year in county jail;
3. Fines of up to $1,000.00;
4. A protective order, protecting the child from further danger;
5. A one year child abuser’s treatment program; and
6. If, at the time of the offense, you were under the influence of a controlled substance or alcohol, the court may impose an order that you not use alcohol or drugs during your probationary period. This may include random drug testing.

The penalties for a felony conviction of child endangerment may include:

1. All of the penalties outlined above, with the exception of jail time and fines.
2. Four years formal probation;
3. State prison for a period of two, four or six years;
4. A maximum $10,000.00 fine;
5. If there was infliction of great bodily injury or harm to the child, an additional and consecutive three to six years in prison; and
6. A possible strike.

The charges of DUI and child endangerment are very serious and can have long lasting effects on a person’s life. Retaining the services of an aggressive, experienced criminal defense attorney, who has experience negotiating with the District Attorney in these types of matters, can make the difference in jail or prison and probation.

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Orange County law enforcement agencies conducted DUI checkpoints and saturation patrols over the Labor Day weekend. The campaign began on August 17 through September 3, 2012 and resulted in 843 arrests. The Orange County Sheriff’s Department expects that number to rise once the final results from all agencies are in.

DUI 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.

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 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.

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