If you are stopped by police on suspicion of DUI, your behavior and demeanor can often determine whether or not you will spend a night in jail. Even if you are arrested, knowing how to interact with police can make a big difference for the outcome of your case in court and with the DMV.
Do Not Talk Yourself Into Trouble
The most common mistake I see clients make is to admit they've been drinking or using drugs. It is a crime to lie to police, but that doesn't mean that you're legally obligated to talk yourself into trouble. You can (and should) politely refuse to answer any questions whenever you're being grilled by police. Virtually nothing you can say will lead to less trouble than you're already in. If you start talking and your speech sounds slurred or if your breath smells like alcohol, those observations will be noted in the arrest report. If you admit that you've taken some prescription drugs or consumed marijuana (even medical marijuana), you will almost certainly be taken to the police station for a blood test.
Do Not Voluntarily Submit to Field Sobriety Tests
Field Sobriety Tests (FSTs, or the "roadside Olympics") are a series of standardized tasks that police use to evaluate drivers who are suspected of DUI. Common FSTs include the "Walk and Turn" test (where subjects are instructed to walk heel-to-toe for 9 steps along an imaginary line, pivot and walk back), the "Rhomberg" test (where subjects close their eyes and tilt their head back without swaying from side to side), and the "Finger to Nose" test (what it sounds like).
Unless you are currently on probation for DUI, you are not legally obligated to participate in any of these tests. No matter how well you perform on FSTs, the arrest report will always say that you "appeared disoriented", you "had difficultly following instructions", you were "unsteady on your feet", etc. Those tests not intended to be "passed", they're intended to give the arresting officer plenty of reasons to form a subjective opinion that you were too impaired to drive safely. Of course, there are plenty of reasons that a perfectly sober person might perform poorly on those tests. They're not easy.
Do Not Submit to a Breathalyzer Before You Are Arrested
The police officer might ask if you want to voluntarily take a roadside breath test. Again, you have no obligation to take the Preliminary Alcohol Screen (PAS) unless you are currently on probation for DUI. Don't do it. After you are arrested, you must provide a sample for chemical testing, but not before.
Breath Test or Blood Test?
If you are arrested on suspicion of driving under the influence of alcohol, then (and only then) you must submit to your choice of either a breath test or a blood test. If one test is unavailable, you must take the other. If you are suspected of driving under the influence of drugs, then you have no choice; you must take a blood test. Breath machines cannot test for drugs other than alcohol.
The police will read you an admonishment to specifically warn you about your obligation to provide a chemical sample for testing. If you are lawfully arrested on suspicion of DUI, the police read the appropriate warning, and you refuse to submit to a breath or blood test, your driver's license will automatically be suspended for one year. The police may even obtain a warrant to take your blood by force if necessary.
If you are given the choice, is it better to take a breath test or a blood test? In my opinion there are advantages and disadvantages to each. The blood test will preserve a sample that can be retested at a private facility if you disagree with the analysis that the county crime lab provides. Retesting that sample may reveal several different reasons that the county's toxicology report is unreliable. If the blood is contaminated with bacteria or improper preservatives, your attorney might have a good argument to have the sample thrown out entirely. On the other hand, a blood test will also reveal drugs other than alcohol that can form the basis for a DUI. If you take prescription medicine, sleep aids or if you have consumed marijuana within about 5 hours before driving, prosecutors may file additional charges.
The breath test does not retain a sample for retesting and it will not reveal other drugs that might be present in your blood. There are a handful of reasons that a breath test might be unreliable. Your attorney may challenge the machine's maintenance and calibration, or he might argue that the officer who administered the test failed to follow the manufacturer's instructions.
If you have recently consumed ANY drugs other than alcohol (even legal, prescription drugs) and you are given the option, I would personally opt for a breath test. If you have NOT taken any other drugs, you might choose the blood test.
To Post Bail or Not to Post Bail?
If you are arrested for a first-time DUI and nobody got injured, you will usually be released on your own recognizance within about 12 hours. You will be required to sign a "Promise to Appear" in court on a specific date for your arraignment, usually scheduled about 6-8 weeks after your arrest.
If you have previous convictions for DUI, if your case involved a collision, or if you refuse to sign the "Promise to Appear", you might not be quickly released on your own recognizance. Bail for a first DUI is usually $2,500 - 5,000, but it can be much higher if you are accused of causing an injury.
After You Are Released
You will be given several pieces of paper when you are released from custody. The pink page is your temporary driver's license. It is valid for 30 days. Once that temporary license expires, your license will automatically be suspended. You have a right, though, to conduct a hearing with the DMV to determine whether or not your license should be suspended before your criminal case is resolved. You must call and request that hearing within 10 days of your arrest. If your hearing is scheduled more than 30 days in the future, you may continue driving until you receive the results from that hearing.
A private attorney can handle everything with both the court and the DMV. If you plan to wait more than 10 days to hire an attorney, though, you should request your DMV hearing immediately. Once you eventually hire an attorney, he or she can contact the DMV to reschedule that hearing for some time when he or she is available.
If you or a loved one has been arrested for DUI in Orange County, call us for a free attorney consultation. 714 449 3335. Ask for John.
Thanks for reading.
Orange County DUI Lawyer
Monday, May 14, 2018
Thursday, May 10, 2018
Fighting Domestic Violence Charges in Orange County
Domestic violence cases are emotional and complicated by nature. If you or a loved one has been arrested for domestic violence, you probably have a lot of questions. Today, I want to discuss the process of fighting domestic violence charges and what to expect in court.
What Kinds of Charges Count as "Domestic Violence"?
The most common domestic violence charges in California are "spousal battery" (PC 243(e)(1)), and "inflicting corporal injury on a spouse / cohabitant" (PC 273.5).
To be convicted of spousal battery, the DA must prove two things: 1) that you willfully "used unlawful force or violence upon the person of another", and 2) that you and the victim had ever been married, engaged, dating or you had a child together. You can be convicted of spousal battery even if the victim was not your spouse. Spousal battery is a misdemeanor, but it carries some heavy penalties that I'll discuss below.
PC 273.5 is a "wobbler", so it can be charged as either a misdemeanor or a felony. To be convicted under this code section, the DA must prove that you and the victim had a relationship (currently or formerly married, engaged, dating, or had a child together). Additionally, prosecutors must prove that you caused some injury that resulted in a "traumatic condition".
"Domestic violence" also includes some crimes that we don't normally consider to be "violent", like vandalism, stalking, or even making harassing phone calls. Since California is a community property state, anything that you have earned or purchased during your marriage is technically your spouse's property. Even you earned the money and purchased an item for your own use, your spouse owns it (my wife technically owns some great fishing gear that she's never seen). If you get pissed and break your own stuff, you have committed vandalism and your spouse is the victim.
What is the Penalty for Domestic Violence?
For most misdemeanor domestic violence crimes, the maximum penalty includes a year in jail. If the judge agrees to grant probation rather than jail time, he is required by law to impose some community service.
If you are convicted of domestic violence, the court is also required to order a 52-week course of anger management counseling, called the "Batterer's Intervention Program". If a judge determines that drugs or alcohol were involved, the defendant must attend additional substance abuse counseling.
The maximum fine for most misdemeanor domestic violence offenses is $2,000.00, plus various state-imposed penalties and assessments. Once all those court costs are tallied, you're looking at something closer to $8,000.00. That number does not lawyer's fees, booking fees from the jail or restitution that the court may order you to pay.
A first conviction for felony domestic violence carries a maximum prison sentence of 4 years and a fine of $6,000.00. Court costs may quadruple that number. If you have another violent conviction within the previous 7 years, the prison time goes up to 5 years and the maximum fine goes to $10,000.00 plus court costs. If a weapon was involved, children were present, or if the victim suffered "great bodily injury", the penalties get worse.
If you are convicted of any felony offense, you will lose your right to purchase or possess firearms for the rest of your life. Federal law also prohibits anyone from possessing guns if they have ever been convicted of misdemeanor domestic violence against a spouse. California, though, goes one step farther. If you are convicted of any misdemeanor domestic violence in California (even against a non-spouse), you will be barred from buying or possessing firearms for the next 10 years.
Criminal Protective Orders & Restraining Orders
The judge is required by law impose a temporary Criminal Protective Order (CPO) while your domestic violence case is pending. You will be personally served with the order when you appear for your arraignment (your first court appearance). The terms of a CPOs can vary, depending on the seriousness of your case. It may order you to stay away from your own house and prevent you from having contact with the accuser, or it may allow for some limited, peaceful contact. Once you are served with a CPO, you must surrender any firearms in your possession to the local police or to a licensed firearms dealer within 48 hours. If you are eventually convicted of domestic violence, that CPO will be extended for the duration of the time that you are on probation (usually 3-5 years).
A CPO is a lot like a restraining order, but there are some key differences. For one, a CPO is issued at the request of the DA during criminal proceedings. A domestic violence restraining order is issued at the request of an individual petitioner in family court. They have most of the same effects (stay away, have no contact, do not harass, etc.), but the procedures involved are completely different.
Since CPOs and domestic violence restraining orders are granted by different judges in different courts, it's common to see orders that conflict with each other. If you are facing a domestic violence case in criminal court and a related restraining order simultaneously at family court, I strongly recommend that you use the same attorney in both matters. It's important to coordinate your defense strategy in the two separate-but-related cases. If your attorneys aren't on the same page, it's hard to achieve the best results.
Can I Tell the Judge to Drop the Charges?
Unfortunately, the decision of whether or not to drop charges rests solely with the District Attorney. It's very common for accusers in domestic violence cases to recant, to admit that they lied, and to ask the court to dismiss the case. The judge will not throw it out, though, just because victim asks him to. The victim didn't file criminal charges (the DA did), so the victim cannot simply drop them.
In cases where the accuser recants or is uncooperative, the DA will press ahead if they believe that they have enough evidence to do so. Prosecutors might have 911 recordings that captured events as they happened. There are probably audio and video recordings of interviews with police at the scene, photos of injuries, statements from neighbors, medical reports, etc. Even without the victim's testimony, the DA might still have enough evidence to put the case before a jury.
If the accuser is changing his or her story, or if the victim does not wish to cooperate with the prosecution, speak with a qualified, local attorney to discuss your options. You should not attempt to negotiate or coordinate with the victim on your own. That could be considered "witness tampering", and may be a violation of the CPO.
As I mentioned at the top, domestic violence cases are emotional and complicated by nature. If you or a loved one is facing a domestic violence case in Orange County, call us for a free attorney consultation. (714) 449-3335. Ask for John.
Thanks for reading.
Thursday, May 3, 2018
Seal Your California Arrest Records
There's a new procedure in California to seal your arrest records. This new law will be a huge benefit to anyone who has been arrested but not convicted for a crime.
This is not the same as an expungement. As I've previously written on this blog, an expungement in California does not completely hide the fact that your case ever happened. Instead, it simply changes your criminal history report so that your old conviction shows up as a dismissed case. Expungements are helpful for people who were once convicted of a crime, but later complied with probation and remained law-abiding. Once an expungement is granted, you can honestly state on most job applications that you have never been convicted of a crime.
The procedure I want to discuss today is a little different. This new law, PC 851.91, is specifically intended to help people who were arrested but NOT convicted of any crime (i.e., the DA declined to file charges, the case was dismissed, or the petitioner was acquitted by a jury).
Until now, a petitioner who wanted to seal his arrest record had the burden of proving that he was "factually innocent" of the charges for which he was arrested. That can be nearly impossible. Being factually innocent is not the same as being "not guilty". Remember, to be convicted of a crime, the DA must prove the defendant guilty "beyond a reasonable doubt". That's pretty high burden. The law doesn't define "beyond a reasonable doubt" in terms of a percentage, but most law school professors will tell you that it is probably the equivalent of being 98-99% sure of the defendant's guilt. In some cases, though, the DA might only be able to prove that the defendant is "probably" guilty (let's say, 60-75% sure). In those cases, the DA has failed to carry the burden of proof and the defendant is not guilty. That doesn't necessarily mean that he's "factually innocent", it only means that the DA could not prove the defendant's guilt with enough confidence to sustain a conviction. Under the old rule, a defendant who had beaten a criminal case and wanted to seal his arrest record basically had the burden of proving himself innocent (0% guilty), and that was extremely difficult. As a result, a lot of people were stuck in a weird, gray area -- they had never been convicted of a crime, but they still had an embarrassing arrest record.
Under the new rule, though, you no longer need to prove yourself "factually innocent" to seal your arrest record. Now, you only have to show that the arrest did not result in a conviction. If you were arrested and the DA declined to file charges, charges were dismissed, or you were acquitted by a jury, our office can help you ensure that your embarrassing arrest records and police reports are never released to the public.
Even if you were never charged or convicted for any crime, an arrest record can make your life difficult. When you apply for a job and your prospective employer runs a background check, they are going to see an arrest with no disposition. They are going to have questions about the case -- were you convicted? Were you acquitted? Did you participate in some diversion program? Good luck getting a job with those records following you around. The same problem arises when you try to purchase a firearm and your record shows an arrest for some disqualifying offense, like domestic violence or assault. Plus, it's just embarrassing. Getting arrested was probably one of the worst nights of your life. There's no reason that experience needs to be rehashed every time you submit to a background check.
There are a lot of criteria that you have to satisfy before you're eligible to seal your arrest records, and the process is a little complicated, but we can help. If you or a loved one has questions about sealing your record in California, call us for a free attorney consultation. 714 449 3335. Ask for John.
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