Thursday, March 9, 2017

Can You Be Arrested for DUI if Your Blood Alcohol Level is Below 0.08%?

Many drivers are surprised to learn that they can be arrested for DUI in California even if their blood alcohol concentration (BAC) is below the legal limit of 0.08%.

In California, "DUI" is actually several distinct crimes: 1) driving while unsafely impaired by alcohol, 2) driving with a blood alcohol concentration of 0.08% or greater, 3) driving under the influence of drugs, and 4) driving under the combined influence of alcohol and some drug(s).  A driver might be charged with a single count or with multiple counts, depending on the circumstances.  

Police often encounter drivers who appear to be impaired by some substance, even when their blood alcohol level is low. The driver might be a "lightweight" who is especially sensitive to alcohol, or he might be intoxicated by some drug(s), or by some combination of alcohol and drugs. If police have probable cause to believe that the driver is impaired by any substance or combination of substances to such a degree that he cannot operate a vehicle safely, he will be arrested on suspicion of DUI and taken to the police station for a blood test.  

Depending on the results of that blood test and the totality of the circumstances, the DA will decide whether or not to file criminal charges against the driver. If prosecutors believe they can prove that the driver was dangerously impaired by alcohol, they will charge the driver with violating VC 23152(a), regardless of his BAC. If his BAC is above 0.08%, they may additionally charge the driver with violating VC 23152(b).  

If a blood test shows that a driver is impaired by drugs, he may be charged with violating VC 23152(f). This includes legally prescribed drugs, illegal drugs and medical marijuana -- any substance(s) that may impair a driver's ability to operate a vehicle with the skill and care of a normal, sober person. These cases are complicated because it's often hard to prove a driver's precise degree of "impairment", especially when the driver has extensive experience and a very high tolerance for some prescription medication that he has taken for years. Our firm has even represented individuals who were accused of driving under the influence of chemotherapy drugs.

To further complicate matters, the DA can charge a driver with violating VC 23152(g) if they believe that he is impaired by the combined influence of alcohol AND drugs.  

There are many possible defenses to DUI charges, but only a qualified professional can fairly evaluate your case. If you or a loved one has questions about DUI in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading.  

Monday, February 20, 2017

Clean Up Your Criminal Record

I wrote a post last year about the many options that can be pursued to clean up your criminal record in California.  Here's the short version of that piece:

  • If you were given probation and you successfully completed the entire term without any violations, you may be eligible to have your old case dismissed. Once a case is dismissed, you may honestly state that you have no criminal convictions for most purposes. A dismissal under this section will not restore gun rights, though. 
  • If you were convicted of a misdemeanor and NOT given probation, then you must wait one year from the date of your conviction or your release from custody, whichever came later. You must also prove that you have remained law-abiding since the conviction.  
  • If your conviction was for a felony, the charge may be reduced to a misdemeanor in some cases. If an old felony conviction is reduced to a misdemeanor, it may restore gun rights, depending on the circumstances.  
  • You must complete probation before you're eligible to apply for a dismissal. If you're still on probation, we can ask the court to terminate probation early. 
The legislature has added some new caveats over the past year to allow more types of cases to be dismissed or reduced:
  • Non-traffic infractions are now eligible for dismissal under the same process.  Non-traffic infractions include things like "disturbing the peace" and "urinating in public", for example. Applicants must wait one year from the time of the conviction. 
  • A conviction for engaging in prostitution under PC 647(b) can now be dismissed if the applicant can prove that he or she was the victim of human trafficking.
  • If you were convicted of a felony and sentenced to county jail rather than state prison, you may now apply for a dismissal.  The waiting period depends on whether or not your sentence included "mandatory supervision".  
If you or a loved one has questions about cleaning up an old criminal conviction, call our office for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading. 

Tuesday, February 14, 2017

What if I Get Pulled Over and My Car Smells Like Weed?

There's a lot of misinformation on this topic.  Unfortunately for a lot of my clients, that often means that they call me after they've been arrested for DUI.  Don't make that mistake.

Driving under the influence of marijuana is a DUI in California, just like driving under the influence of alcohol.  It doesn't matter if you're over 21 or if you have a doctor's recommendation to use medical marijuana.  Think of weed like alcohol -- just because you're allowed to possess it doesn't mean that you're allowed to operate a vehicle while you're under the influence.

The big difference between marijuana and alcohol is that there's no legal limit for THC and no reliable way to determine a driver's degree of impairment with weed.  Blood, urine and saliva tests cannot accurately tell us whether or not a subject is dangerously intoxicated by marijuana.  This means that marijuana DUIs are pretty arbitrary.  They often turn on the police officer's opinion based on his observations before and after the traffic stop.  The factors that I usually see listed in police reports include:
  • Bad driving
  • Smell of marijuana coming from the interior of the vehicle
  • Driver observed smoking in a moving vehicle
  • Red, glassy eyes
  • Any signs that the driver is disoriented or has difficulty following instructions, etc.
The strongest evidence that the police usually gather in these cases, though, is the driver's own statements.  Way too many of my clients talk themselves into trouble after a traffic stop.  If you admit to consuming marijuana before (or while) driving, you will be arrested on suspicion of DUI

Without your admission of recent marijuana use, the police might not have enough evidence to arrest you.  If you keep your mouth shut and the police arrest you anyway, we'll have a much stronger defense when we appear in court.  

If you or a loved one has questions about driving under the influence of marijuana in California, call us for a free attorney consultation.  (714) 449-3335.  Ask for John.  

Thanks for reading. 

Wednesday, February 1, 2017

Can a Restraining Order be Resolved Before the Court Hearing?

As I've previously discussed on this blog, obtaining a restraining order in California is a 2-step process. First, the petitioner files a "Request for a Restraining Order". Within 24 hours, a judge will determine whether or not to grant a temporary order based on the facts alleged in the petition. Next, a hearing will be scheduled within 3 weeks. At the hearing, both sides will have an opportunity to present their arguments and a judge will decide whether or not to extend the order for a longer period (up to 5 years in cases involving domestic violence, or up to 3 years in cases involving civil harassment).

Unfortunately, this 2-step process often means that nonsense restraining orders are issued for 3 weeks before the respondent has an opportunity to present his side of the story in court. During this time, the respondent's life can be turned upside down. He can be barred from his home, separated from his kids and denied access to his belongings. By the time he has a chance to defend himself, the damage may be done.

Clients often ask me about resolving their restraining orders before their scheduled court hearings. Luckily, it may be possible to start negotiating a dismissal immediately, but this must be done properly. Disregarding the court's temporary orders can make a bad situation much worse. If the respondent calls the petitioner to discuss the case while the temporary order is in effect, he can be arrested. Any violation of the temporary order can also be grounds for the issuance of a permanent order, even if the petition itself was inadequate.

If you are the subject of a temporary order, you must absolutely abide by it until the time of the hearing. That means do not contact the petitioner in any way, directly or indirectly. Don't ask someone else to pass along a message. Don't send an email or a text message. Don't leave a note on her car. Don't even respond to a message from the petitioner if he or she attempts to contact you.

Your attorney may contact the petitioner to discuss your case, though. Any communication between you and the petitioner must be done through your counsel. If you need your work uniform or your medication, talk to your attorney about reaching out to the petitioner to arrange a hand-off.

Your lawyer can also start the process of trying to negotiate a dismissal before the hearing. Restraining order hearings are often arbitrary and unpredictable. No matter how strong you believe your case is, there's a pretty good chance that the judge will disagree. Whenever you choose to fight it out in court, there's a 50/50 chance that you'll lose. Stipulated dismissals (where both parties agree to resolve the case privately, rather than in court) can be a great way to ensure that both sides get 100% of whatever they want. Usually, the petitioner wants some assurance that the respondent will stay away, and the respondent wants to avoid a restraining order and everything that comes with it.

Stipulated dismissals work like this: the parties make an informal, written agreement through their attorneys. Typically, the respondent promises to stay away from the petitioner, to stop calling, to return the petitioner's iPad, etc., and the petitioner agrees to dismiss the case. If the respondent ever violates this agreement, the petitioner can go back to court and reopen the case. She'll simply show the judge the written contract and she'll explain how the respondent has violated it. Now she has a slam dunk case, and she's much more likely to win a restraining order. If the respondent demonstrates that he's unwilling or unable to abide by his promise to stay away, then the judge will see him as dangerous or unstable, and the court will grant the petitioner's restraining order. Of course, if the respondent complies with the agreement and he stays away as promised, then everybody wins.

If you've been served with a restraining order, call our office for a free attorney consultation. (714) 449-3335. Ask for John. We have extensive experience litigating restraining orders in all Southern California courts.

Thanks for reading.

Orange County Restraining Order Lawyer

Thursday, January 19, 2017

Is Civil Disobedience a Defense to Criminal Charges?

With Inauguration Day looming, there's been a lot of talk about "civil disobedience", free speech, the right to protest, and the 1st Amendment. Before you get yourself arrested tomorrow, please take a moment to read this article. Make sure that you understand your rights and, more importantly, the limits of those rights. Then call my office.

The 1st Amendment to the US Constitution guarantees the right to free speech. The government may (almost) never punish you simply for expressing an unpopular opinion. The content of your speech is virtually sacrosanct under American law, no matter how offensive.

The time, place and manner of your speech is another story, though. The government may constitutionally restrict when, where and how you express yourself, as long as they have a good reason to do so. The police may not arrest you simply for yelling, "F*ck the police!", but they absolutely may arrest you if you torch a police car, block an intersection, disrupt traffic, damage property, etc., even if those actions are political speech.

So turn out, protest, make signs, and yell whatever you want.  But please don't block the freeway or light anything on fire.

If you choose to engage in some civil disobedience, be advised that this is also not a defense to criminal charges. The term "civil disobedience" was coined in the middle of the 19th Century by Henry David Thoreau. Thoreau had served a night in jail for refusing to pay a tax, in protest of the Mexican-American War. He was a staunch opponent of the war and of slavery. In his famous essay, Thoreau argued that men have a moral responsibility to resist unjust enactments, and to break the law if necessary. He also emphasized, though, that they must be willing to accept the consequences of their unlawful behavior. He never argued for lenience or claimed that his actions were protected by the 1st Amendment.

If you or a loved one has questions about civil disobedience or the 1st Amendment, call us for a free attorney consultation. (714) 449-3335.  Ask for John.

Thanks for reading.

Fullerton Criminal Defense Attorney

How to Prepare for an Appearance in Criminal Court

If you have a court date approaching, I know that the anxiety can be overwhelming. Hiring a qualified, local attorney can help reduce the stress associated with appearing in court. Your lawyer can explain the process so that you know what to expect. He or she can stand by your side so that you understand your options and to ensure that you're not railroaded into any bad deals.

Your first court appearance is call the "arraignment". No evidence or argument is presented at the arraignment. This is not the day for your trial. The arraignment is a formality, where your attorney will receive copies of the complaint (the document that explains the charges), and the initial discovery (police reports). In most cases, you are not entitled to receive copies of the police report until the arraignment. This is your attorney's first opportunity to read the details of the accusations against you.

At the arraignment, you may either plead "guilty" and resolve your case on the spot, or you may plead "not guilty". If you plead "not guilty", then further court appearances will be scheduled. These subsequent appearances are called "pretrial hearings". At pretrial hearings, your attorney will meet with the DA to discuss the evidence and will attempt to negotiate a fair deal to dispose of your case (after your attorney has had a chance to thoroughly read the police reports).

You should make damn sure that you show up on time when you appear for the arraignment. Every courtroom has its own specific procedures for conducting arraignments. Most courtrooms start the morning with an "advisement of rights". This is what it sounds like. They will explain the various legal and constitutional rights that apply during the criminal process. Some courtrooms lock the doors during the presentation to ensure that everyone hears this important information. If you show up one minute late, you will be locked out, a warrant will be issued for your arrest, and you'll have to come back another day. Give yourself plenty of time to park and to go through the security screening.

Dress appropriately when you appear in court. This should go without saying, but I'm amazed at the clothing I see in court every day. Your arraignment is the most important thing you'll do today -- dress accordingly. Wear long pants (not shredded jeans or yoga pants) and closed-toe shoes. Put on a collared shirt. There is no such thing as overdressing for court. Act like you're taking your case seriously. Courts have dress codes. If your attire is not appropriate, you may be kicked out and told to come back another day. Simply dressing appropriately is the easiest part of "preparing" for your arraignment.

To recap, here's how you can prepare for your first appearance in criminal court:

  • Retain a qualified, local attorney
  • Show up on time
  • Dress appropriately
If you or a loved one has a court date approaching in Orange County, call our office for a free attorney consultation. (714) 449-3335. Ask for John

Thanks for reading.

Thursday, January 5, 2017

Can I Get a DUI in California if the Police Didn't See Me Driving?

Depending on the circumstances, you may be arrested and convicted for DUI in California even if you were not personally observed driving.

In most cases, police can only arrest someone for a suspected misdemeanor under 3 circumstances: 1) the offense is committed in the officer's presence (the cops see you do it), 2) the police have a warrant for your arrest, or 3) a private person who witnessed the crime signs a declaration under penalty of perjury, swearing that they saw you do it (a citizen's arrest).  

DUIs are treated differently, though. There's a special provision in the California Vehicle Code (section 40300.5) that specifically allows police to arrest suspected drunk drivers, even when they aren't caught in the act of "driving under the influence".  

First, you have to understand that the crime of DUI involves driving a car while impaired. Contrary to popular belief, it is not illegal to sit behind the wheel of a parked car while you're drunk, regardless of whether or not the keys are in the ignition.  It's not even illegal to sit in the driver's seat of a running car while you're impaired.  To be guilty of DUI, the DA must prove that you drove the car while you were under the influence of alcohol.  "Driving" a car involves exercising some control over the vehicle -- moving it even one inch. 

Police often encounter suspected drunk drivers who aren't actually observed in the act of driving, though. Take the example of someone who is found passed out at a green light. Police didn't actually see him commit the offense because they never observed the suspect "exercise control" over his vehicle -- he was asleep when police arrived and the car hasn't moved. Or consider a situation where police find a car wrapped around a tree with the driver trapped inside. Or a car stopped on the shoulder of the road while the driver "sleeps if off". In each of these cases, the suspect was never personally observed committing the offense (driving the car), but the police will arrest him anyway.  

VC 40300.5 permits police to make DUI arrests in situations that strongly suggest a driver must have been impaired at the time of driving, even if they didn't actually see him doing so. This doesn't necessarily mean that the DA has a strong case in court -- and you may have a good defense at trial -- but it definitely means that you're spending the night in jail if you're caught.  

Some of these situations where police are permitted to make arrests under VC 40300.5 include:
  • When a driver is found in or near a car that is blocking traffic (asleep at a green light or in the drive-thru line at a fast food restaurant)
  • When the vehicle has been involved in a collision
  • When a subject is so impaired that he poses a danger to himself or others
  • When the person will not be apprehended unless he is immediately arrested, or
  • When the person is likely to destroy evidence of the crime unless he is immediately arrested.
This last one is the "catch-all".  Since alcohol naturally dissipates in the human body over time, police can always claim that they're afraid evidence will be destroyed unless the suspect is immediately arrested and taken to the station for testing.  

If you're ever questioned by the police about a suspected DUI, you should avoid talking yourself into trouble by politely refusing to answer any questions.  Too many of my clients dig themselves into a hole by explaining to the officer, "Yes, I was wasted, so I pulled over to sleep it off".  That's not a defense, it's a confession.  These types of cases may be very defensible, as long as you don't help the police build their case against you.  We've achieved some great results in cases where our clients were not observed driving.  

If you or a loved one has been arrested for DUI in California, call us for a free attorney consultation. (714) 449-3335. Ask for John.  

Thanks for reading.