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When someone has been arrested for driving under the influence, the arresting agency submits a report to the Orange County District Attorney for their review and ultimate filing of charges. It may seem pretty straight forward in that someone has been pulled over, given a test and then determined to be driving under the influence. However, there are five main pieces of evidence that the district attorney is relying upon when determining whether or not to file charges. To follow is an explanation of the evidence, and how it is relied upon, when determining whether or not to file charges against someone who has been arrested for DUI.

1. The police officer’s observation of the accused’s driving: Someone who is driving too slow or too fast, straddling the lines or weaving in the lanes.

2. The police officer’s observations of the accused’s personal symptoms: The odor of alcohol, slurred speech, watery eyes, swaying and/or off-balance.

3. How well the accused performed the field sobriety tests: These tests are designed to determine balance and coordination. Although field sobriety tests are not required, most people don’t know this and comply when asked to perform the roadside field sobriety tests. These tests are difficult to pass, even for a sober person and are subjective. They are based on the officer’s opinion on how well they were performed and thus are unreliable.

4. The statements the accused makes after being pulled over: When the officer asks whether or not the accused has had anything to drink, the response will obviously is evidence.

5. The blood alcohol results: When trying to determine whether or not someone is driving under the influence, there are two “road-side” tests the officer can perform. Neither of which, by the way, is required by law. One is the field sobriety test mentioned above; the other is the roadside Breathalyzer. This is a handheld device used by officers in the field to assist them in determining whether or not to arrest a suspected drunk driver. These tests are also unreliable in that they are not considered 100% accurate.

What most people don’t know is that, both the field sobriety test and the hand-held, roadside Breathalyzer tests can be refused without any legal repercussions. However, In the event that a person refuses to submit to either of these road-side tests, the officers can then make a determination that you are under the influence, arrest you and then require you to take a chemical test of your breath, blood or urine at the station. It should be noted that urine tests are only used when a breath or blood test is unavailable. Law requires the chemical test at the police station, unlike the roadside test, and if refused, the officers can then forcibly take blood to determine whether or not you were driving under the influence of alcohol and/or drugs.

There are guidelines that law enforcement personnel must follow when detaining and questioning someone for DUI. It is important to understand that if these strict guidelines are not followed and documented, your attorney may be able to have the charges dismissed.

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In California, if you are charged with driving under the influence, whether it is alcohol or drug related, the prosecution could add to the charges what is known as sentence enhancements. These enhancements can substantially increase the severity of the punishments imposed by the Court. Here are some of the more common enhancements:

DUI Sentence Enhancements

1. Prior Convictions – If you have been convicted of a DUI within the last 10 years, the penalties are increased. So this means that the jail time imposed can be increased, the length of the DUI School, and your driver’s license suspension period are both increased. On a first conviction for DUI, a 3 month DUI school is standard, unless your blood alcohol level was very high, and in that case, the class will be six or nine months. Your driver’s license suspension period on a 1st DUI is six months.

2. High Blood Alcohol Content – An enhanced sentence can be imposed if your blood alcohol level is .15 or higher.

3. Test Refusal – The Court will increase the amount of jail time you are ordered to do if you refuse to submit to a chemical test. Further, the Department of Motor Vehicles will impose a one-year suspension of your driver’s license for refusing. The Court proceedings are separate from the DMV proceedings. If it is determined by the DMV that you refused to submit to a chemical test, your license will be suspended for one year. There is no negotiating with the Department of Motor Vehicles when it comes to a refusal.

4. Speeding and/or Reckless Driving – If you were speeding at the time of your arrest for DUI, sentence enhancements can be imposed. If you were on a surface street, you must have been travelling 20 miles over the speed limit and 30 miles over the speed limit on the freeway for enhancements to apply.

5. Minor Passenger – If at the time you are arrested for DUI, you have a minor child, under the age of 14 years, you may be subject to an enhancement charge or the additional charge of child endangerment. If you are convicted of DUI with a minor child in the car, the additional time you may face is as follows: a) 48 hours for a first time DUI; b) 10 days for a second DUI; c) 30 days for a third DUI and d) 90 days for a fourth DUI conviction.

6. Accident – If you are involved in an accident while driving under the influence, sentence enhancements will be imposed. If the accident results in injuries to another, the prosecution can file felony charges. If you are convicted of DUI involving an accident, along with felony DUI for causing injuries, the time you may be facing is an additional 90 days to one year.

The prosecution typically will include as many enhancements in the charges as are applicable. For purposes of a plea bargain, an experienced DUI defense attorney will begin negotiations with the District Attorney, in an effort to get all of some of the enhancements dismissed. This will significantly reduce the jail time exposure, as well as reduce the fines and penalties associated with sentence enhancements.

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Now that the 2012 “Winter Holiday Anti-DUI Crackdown” has ended, the Orange County Sheriff’s Department has posted the results. In keeping with the “Avoid the 38” DUI Campaign, 38 Orange County law enforcement agencies conducted sobriety checkpoints, special saturation patrols and routine patrols for the Winter Holiday period December 14, 2012 through January 1, 2013. Not all numbers are in yet but preliminarily, it is being reported that there were 971 arrests for DUI made during the 19-day period. This number is up from the previous year, which resulted in 836 arrests for DUI.

I am a DUI defense lawyer and my practice is based in Orange County, CA. Over the past 20 years I have seen the incorporation of these checkpoints and saturation patrols, into the law enforcement agencies and have watched them evolve. What a lot of people don’t know is that the law enforcement officers must conduct these stops under very strict guidelines. For instance, it is perfectly legal for someone to purposely avoid a checkpoint. If an officer notices this, they cannot then pull them over unless there is legal cause to do so. Avoiding the checkpoint is not legal cause. It is important that anyone who has been arrested at checkpoint hire an attorney who is familiar with the guidelines and laws associated with such an arrest. If any of the required steps are not followed and documented, it could result in the case being dismissed.

What Are Some Of The Guidelines?

1. Each agency that conducts a checkpoint must have a supervising officer who is in charge of the operation of the checkpoint. The supervisor makes the decisions as to where and when it will take place.

2. The checkpoint must be in an area with a history of DUI arrests or accidents. Also, safety to the public must be taken into consideration when determining where the checkpoint will be.

3. The upcoming checkpoints must be made public, prior to the date scheduled.

4. There must be signs, lights, the presence of police officers or marked cars, so that it is the visible to any approaching drivers. This gives drivers the opportunity to avoid he checkpoint if they so desire.

Orange County is known for being one of the most aggressive and strict when it comes to driving under the influence. Lawmakers and interested groups are continually coming up with newer and more aggressive ways to seek out, arrest and convict people suspected of driving under the influence. Other counties in California are beginning to look to Orange County as a leader in the fight against drunk drivers. Because of this, I always question the initial stop first. An officer must have probable cause to pull someone over. There seems to be an increase in officers “fishing” to find drivers who are under the influence and initiating a stop without cause. My clients are often surprised to learn that, even if they were intoxicated, if the stop was illegal, the case can be dismissed. So, it is very important to understand the guidelines that officers must adhere to.

Anyone who has been arrested for DUI in Orange County should seek the advice and assistance of a DUI Defense Attorney in Orange County, CA. Because Orange County is so strict, an attorney who is familiar with, and has a good working relationship with, the judges and district attorneys in the Orange County Courts, will be in a better position to get the best possible outcome for someone who is facing a DUI charge. Although DUI cases are prosecuted aggressively, there are ways to lessen the severity of the punishment that allows for people to go on living their normal lives and keep their jobs without interruption.

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A 27 year old Santa Ana man was arrested on suspicion of vehicular manslaughter, felony hit and run and driving on a suspended license, in connection with the hit and run death of a 75 year old man last week. The charges have yet to be filed but due to the fact that the suspect was on probation for a 2011 dui conviction, if it is determined that he was in fact the driver and was intoxicated at the time of the accident, he could be facing murder charges.

According to authorities, the 75-year-old man was out for a walk on Thursday morning when he was struck and killed by a vehicle described as a dark blue BMW. Another driver who followed the vehicle until police arrived spotted a damaged vehicle matching the description Saturday. The suspect was arrested and reportedly, the damage to the car was consistent with evidence from the crime scene.

At this point, the evidence seems to be pointing to the fact that the car was involved in a hit and run which doesn’t necessarily mean that the suspect was the one driving the car. Further, if the suspect were driving the car, absent any positive blood or breath test for alcohol, there would be no physical evidence of intoxication. This is a very important detail in this case because, as mentioned above, the defendant has a prior conviction for dui, which puts him in danger of being charged with dui 2nd degree murder. This is known as a “Watson Murder”, which is explained in more detail below.

In California, when someone pleads guilty to DUI, they either sign a “Watson Advisement” or the Judge advises in Court of the “Watson Advisement”. This basically requires that the defendant acknowledge that he/she understands that driving under the influence is dangerous to human life and that in the future; any dui’s, which result in the death of another, can be prosecuted as a murder. For this reason, the hit and run charge in this case, absent any evidence of alcohol involvement, will definitely be the lesser of two evils as far as charges go.

However, these are very serious charges and require the advice and assistance of an experienced criminal defense attorney who is familiar with these types of cases and the defenses thereto.

There are defenses to a hit and run which an aggressive defense attorney should pursue. A couple of the more common defenses are: 1) The suspect was unaware that there was an accident and, 2) The suspect wasn’t driving the vehicle. As in all cases, a defense attorney should pay close attention to the conduct of the police officers and investigation reports, as well as the conduct at the scene. Errors and holes in the reports can often assist in the defense of this type of case. Something else to explore is the possible need for an accident reconstruction expert. Finding out how the accident occurred could be helpful to the defendant’s case. An expert would look at the road conditions, lighting, and anything that may have contributed to the accident.

If you or someone you know is facing charges of this serious nature, consulting with an experienced criminal defense lawyer in the County in which the case is pending, may be the most important thing you ever do.

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A drunk driver caused a three-car accident on the 91 Freeway in Anaheim after crashing into the center divider. When the woman driver attempted to flee the scene, she put her vehicle in reverse and in doing so crashed into another car, which then was hit by yet another vehicle. There were 5 people involved in the collisions and all five were taken to the hospital. The two individuals in the third car were ejected from their vehicle and seriously injured. It is important to point out that the driver of the second car was also determined to be driving drunk and arrested at the scene.

Being charged with a DUI in Orange County, California can have a devastating effect on a person’s life. As I have discussed in previous blogs, Orange County is extremely strict when it comes to driving under the influence. But, in this particular situation, it becomes much more serious due to the fact that there were accidents with injuries involved. Whenever someone is arrested for DUI with injuries, the prosecution can file the charges as either a misdemeanor or a felony, depending upon the circumstances. This case will most likely be charged as a felony due to the severity of the accident and injuries of the passengers that were ejected from their vehicle. The district attorney will also look at the defendant’s past history to determine whether or not she has any prior convictions for driving under the influence. A prior history would substantially affect the charges in this case.

Anytime there is an automobile accident and alcohol is involved, most officers on the scene automatically assume that the person who had been drinking caused the accident. While this would be a plausible assumption, it is not always the case. There are many circumstances that could have contributed to the accident. Road conditions, weather, illness, and in some cases, the actions of another other driver.

In this particular situation, it was reported that the driver of the second car involved was also driving drunk and arrested. This is a good opportunity for a defense lawyer to hire an accident reconstruction expert to determine who was actually at fault. If it is determined that driver number two was at fault, or contributed to the accident, then the woman who initially crashed into the center divider may only be charged with misdemeanor dui with accident.

For this reason, it is recommended that anyone involved with an alcohol-related accident consult with an experienced DUI defense lawyer to determine whether or not there may be a good defense available to the charge of DUI with injuries.

If however, the evidence is overwhelmingly against the defendant, then a good experienced defense attorney, who has a good relationship with the Judges, Court staff and District Attorney Office, will begin trying to have the charges reduced to misdemeanors, if filed as a felony, and mitigate the sentence exposure the defendant may have. There are sentencing alternatives that a good attorney will recommend in order to keep their client out of jail.

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An Ignition Interlock Device, or IID, is an option/sentence alternative, for people who have been convicted of driving under the influence. The IID is a small device, similar to a Breathalyzer that attaches to the steering column of a car. The purpose of the device is to measure whether or not a person has been drinking alcohol before they begin driving. Once installed, the person driving the car must provide an alcohol-free breath sample or the car will not start. In order to avoid someone else providing the alcohol-free sample, once a person begins to drive, the device will require that intermittent breath samples be provided. Once the device has requested a sample, the driver has 6 minutes to provide the sample. If no sample is provided, it is recorded as a “fail” and the information is sent to the Court. The IID’s are designed to ensure that only the person required is providing the breath sample. The device requires a specific breath pattern while a breath sample is being provided and has a very short cord attached to it. This is to avoid someone else providing the sample while the individual is driving. The device also records all starts and stops, any tampering with or attempts to disconnect and all results.

The IID can be a very useful tool in negotiating a plea. Especially for someone who has a full-time job and is financially responsible for their family. For some, jail time means the loss of a job and great hardship on their family.

There are sentencing alternatives available for convictions of a DUI and for this reason, anyone who has been arrested and is being charged with driving under the influence should consult an experienced DUI Defense Attorney.

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According to the Orange County District Attorney’s Office, in the first 9 months of 2012 there were 1500 arrests for drug-related dui’s. 95 percent of those arrests resulted in convictions. Compared to 2010, there were 1400 arrests for the year and 92 percent resulted in conviction. Orange County is very aggressive and has become the model in the state in the efforts to crack down on drug-related DUI cases. The state’s Office of Traffic Safety has acknowledged that, while the problem is recognized everywhere, Orange County is the leader in the push for new technology and more drug expert police officers. A $480,000.00 grant was recently awarded to Orange County to train more police officers as drug experts and help the crime lab with updated equipment to detect drugs.

Because I am a DUI defense attorney and my practice is focused primarily in Orange County, I take a special interest in this type of information. I have for a long time known that Orange County is extremely conservative when it comes to driving under the influence cases. I recognize that there is a continuing effort to make the laws more strict and that the authorities have become more aggressive in the arrest and prosecution of people arrested for DUI. Along with this aggressive push, I have also seen an increase in police misconduct when it comes to the initial stop and ultimate arrests. There are specific guidelines that an officer must follow in stopping, detaining and arresting someone for driving under the influence. Too often, these guidelines are not followed properly and unless the stop and detention are specifically addressed, the arrest is considered legal.

As mentioned above, Orange County is funding the increased training for drug recognition experts. These are officers who have been trained and can detect if a person is under the influence of meth, cocaine or heroin just by observing and talking to them. There are specific signs they have been trained to look for that a traffic officer may not recognize. If someone is arrested for DUI and taken to the police station but the Breathalyzer is negative for alcohol, blood will be drawn and sent to the Orange County Crime Lab to be tested. The crime lab has several tests that can detect both legal and illegal drugs. However, not all of the tests are able to determine how much of the drug is present. This has been one of the challenges for the prosecution in these types of cases. The burden to prove whether or not there was enough of a drug present to impair a person’s driving and thus, resulted in dismissals. However, this is about to change. As explained below, new equipment is now available to detect the amount of certain drugs in a person’s blood.

The Orange County Crime Lab is scheduled to begin using a new machine that can measure the concentration of a drug. This new piece of equipment, which costs $350,000.00, was paid for by one of the Traffic Safety grants and has been described as “powerful”. There is no doubt but that we will see an increase in arrests and convictions for DUI of prescription drugs as well as illegal drugs once the crime lab begins using their new machine.

Anyone arrested for DUI whether alcohol related or drug related should immediately seek the advice and assistance of an experienced DUI defense attorney. An arrest for DUI is time-sensitive in that you have only 10 days within which to request a DMV hearing or your license will be suspended. Requesting a hearing “stays” the suspension until after a hearing is conducted.

Although a conviction for DUI may seem inevitable if you were in fact driving under the influence, there are defenses to this charge Looking closely at the conduct of the police officers involved, as well as any tests performed can help determine whether or not challenging the initial stop is a viable defense for you. Further, with an experienced defense lawyer on your side, the ultimate outcome will most surely be more favorable. It is also important to note that there are sentencing alternatives and a good, experienced criminal defense attorney should negotiate aggressively to avoid having his client go to jail.

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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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The Orange County, California DUI Task Force is a multiagency task force made up of the California Highway Patrol, local police agencies and the Orange County Sheriff’s Department. This task force is also known as the “Avoid the 38” which refers to the 38 law enforcement agencies involved in the anti-DUI enforcement operation.

A two-week anti-DUI period, leading up to Labor Day, is already under way and has so far resulted in more than 500 arrests for DUI. Orange County authorities report that 543 DUI arrests have been made since mid-August and, they expect that number to go up.

DUI checkpoints and roving patrols are planned throughout Orange County beginning Friday, August 31 through Monday, September 3rd. Brea Police Department will conduct a checkpoint from Friday at 8:30 p.m. until Saturday at 2:30 a.m. Santa Ana PD will conduct their checkpoint from Saturday at 8:30 p.m. through Sunday at 1:30 a.m. at 2000 W. First Street. Buena Park’s checkpoint will be from Saturday at 7:00 p.m. until Sunday at 2:00 a.m. at Beach Blvd., and 10th Street.

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