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Search for California DUI
Attorneys by County.
Oakland, Ojai, Orange, Palm Desert, Palo Alto DUI Lawyers
Oakland
- Slain, Douglas:
DUI CHARGES were brought against more than 1. 3 million drivers in 2007 in this country, almost 190,000 in California alone.
Two proceedings
In California when you are arrested for drunk driving you face two distinct proceedings with two distinct agencies:
The DMV hearing
This is a technical hearing run by the California Department of Motor Vehicles. YOU MUST SCHEDULE THIS HEARING WITHIN 10 DAYS OF YOUR ARREST ON THE DUI. If you do not schedule this hearing, your license will be automatically revoked 30 days following the arrest.
The DMV hearing is very informal and is administered by a hearing officer who is neither a lawyer nor a judge. Most clients do not understand that it is NOT their responsibility to prove that the suspension is not justified. The DMV must prove that a suspension is justified! In addition, what occurs in the DMV hearing can impact what will occur in the DUI hearing coming up in Superior Court, so you have all the more reason to deal with this hearing appropriately.
The Superior Court criminal case
This consists of several hearings, starting with the arraignment, followed with a preliminary hearing, pre-trial conference, and then the trial—if your lawyer takes it to trial. Usually a good DUI lawyer will not have to go to trial to get the best result possible.
Depending on your facts, you are facing some of the following:
* Community service
* Fines
* Jail time
* Education classes
If your facts include over .20% blood alcohol level, driving with a minor, driving recklessly or speeding, or a prior DUI in the last 10 years, you may be facing some of the following:
* Jail time, even prison time
* Vehicle impoundment
* Ignition interlock device on your vehicle
* Heavy fines
Penalties if convicted
First offense:
* Fines up to $1,800; suspension of license for 6 months; jail time/probation optional; at least 5 months of alcohol education class.
Second offense:
* Fines up to $2,000; suspension of license for two years; 96 hours jail time (minimum); alcohol program from 18 to 30 months; possible vehicle impoundment
Third offense:
* Fines up to $2,000 but with possible mandatory treatment options (which are expensive); suspension of license up to three years; 120 minimum jail time; alcohol program up to 30 months; vehicle impoundment; possible other consequences
Fourth offense:
* Fines up to $2,000 plus mandatory treatment programs; jail time of up to 9 months or prison time of up to three years; suspension of license for four years; and other consequences, such becoming a felon for the rest of your life (a fourth offense is treated as a felony).
Further offenses:
* It gets worse and worse. For starters, you can go to prison for up to five years.
Final note, as I tell each of my clients: “No matter how bad this is going to be, assuming we cannot live with a negotiated guilty plea, it will be far, far worse if you do this again within the next 10 years.”
- John Bell:
If you have been charged withmultiple DUIs, you may face a felony DUI charge. If you had excessively high blood alcohol content or injured someone while under the influence, you may face harsher DUI penalties.
- Douglas Slain:
A drunken driving arrest can ruin a beautiful wine country vacation. If you have been arrested forDUI/DWI in California, you may be facing driver's license revocation, stiff fines, and maybe even jail time.
- Gregory Ward:
1. Never give a statement to the police. What you say is admissible in court only
if it hurts you. The district attorney charges countless cases each
year that would be unprovable in court except that the defendant gave a
statement. If youve already provided a statement, there may be things
that can be done to undo or minimize the damage.
2. Never believe what the police tell you. They may be nice to you, but
they're looking to put a case together that will hold up at trial. Off
tape, they will deceive, make false promises, and say whatever it takes
to get you to waive your rights. Although statements and confessions
are sometimes thrown out of court because they were unlawfully
obtained, police are never disciplined for tricking a suspect into
waiving his rights. Never assume the police are telling you the truth.
3. Never talk about your case with anyone except your lawyer. All
statements made by you about what happened, written or verbal, are
admissible against you at trial. Letters sent to employers sometimes
get turned over to the prosecution. There are inmates who are looking
to testify against someone so they can get a good deal in their case.
If in jail, never show your police report to anyone.
4. Never talk about your case over a jail telephone, except to your
lawyer. All telephone calls from the jails are tape-recorded. You
should assume your conversations will be reviewed by law enforcement,
and that tapes of your conversations will be turned over to the
prosecutor.
5. Do not attempt to be your own lawyer, or to manipulate your case,
such as by lining up false witnesses. This is a strategy that almost
always backfires at trial.
6. Avoid getting legal advice in the jail. When it comes to the law,
not much of what you hear in jail is accurate. There are,
unfortunately, a lot of people in jail or prison right now because they
followed the advice of a jailhouse lawyer.
- Robert Beles:
Drunk-driving charges can have grave effects on your future. Loss of
driving privileges is a severe punishment in American society, where
cars are the lifeline of most people. Jail time, probation, fines, and
a criminal record may also result from DUI charges.
- Traback & Dubois:
Some of the automatic penalties associated with a DUI include:
- First DUI – Four months to one-year loss of driver’s license
- Second DUI – One to two year loss of driver’s license
- Third DUI – Three-year loss of driver’s license
The maximum penalties for first time DUI offenders include:
- Up to six months in jail – 48-hour minimum
- $1,500 fine and penalties
- 16-week drinking driver program
- 3-5 years probation
- 2 points on your driving record
- Lawrence Ward:
When someone is arrested by the
police, a specific series of events follows. The police must
follow legal procedures during the actual arrest process, and at many
other stages along the way to actually placing a suspect in jail. - An
arrest occurs when police take you into custody and is complete the
moment you, as the suspect, are no longer free to walk away from the
arresting officer.
- In 1966, the U.S. Supreme Court ruled in Miranda v. Arizona
, that individuals who are under arrest for suspicion of having
committed a crime have certain rights that must be explained to them
before any questioning may occur. The rights are designed to
protect your right to be free from self-incrimination under the Fifth
Amendment to the U.S. Constitution. There are five different rights,
known as the “ Miranda Rights ”:
- You have the right to remain silent and to refuse to answer questions.
- Anything you do say may be used against you in a court of law.
-
You have the right to consult an attorney before speaking to the police
and to have an attorney present during questioning now or in the future.
-
If you cannot afford an attorney, one will be appointed for you before
any questioning if you wish.
- If
you decide to answer questions now without an attorney present, you
will still have the right to stop answering at any time until you talk
to an attorney.
Note
: Miranda rights must only be read when an individual is in
police custody and is under interrogation. Therefore, if the
police stop you to give you a traffic ticket, and you start explaining
to them why you were speeding, you cannot later protest that you were
not read your Miranda rights. While the police may have been
“interrogating” you in a certain sense, you were not in police custody.
- Daniel Horowitz:
You deserve a lawyer who can deliver in the courtroom.
- Kristina Kliszewski: Drunk Driving: Traffic violations have
serious criminal consequences especially when a driver is accused of
drunk driving or driving under the influence. A DUI conviction my
result in fines, driver’s license suspension, and possibly jail time.
Also, your insurance company my increase your rates to an unmanageable
level. In defending against a DUI charge, you have many rights as a
criminal defendant, including the right to cross-examination the
witnesses against you (even police officers).
- Byers, Bell & Warrick:
The Bay Bridge and the highways that lead to and from it, is one of the highest DUI enforcement areas in the Bay Area. Naturally, attorneys who are familiar with the DUI enforcement in this area are your best allies for your fight. We know the Courts, the DMV (Department of Motor Vehicles) personnel, the laws, and the knowledge to help guide you through this problem. The Courts and DMV have the power to revoke or suspend your license. The DMV process begins when your license is confiscated by law enforcement (your license will not be taken if you have an out-of-state license), and you are given that pink piece of paper. That pink sheet is very important because it is a temporary license and it informs you that you have 10 days to request a hearing before the DMV.
Driving under the influence" (DUI) and "driving while intoxicated"
(DWI) are two names for the crime of drunk driving. Other statutory
names for this crime are "operating under the influence" (OUI) and
"operating while intoxicated" (OWI). The different names for the crime
reflect differences in the state statutes that define the crime.
However, all the statutes have the common purpose of punishing drunk
driving and driving under the influence of illegal drugs. A conviction
for drunk driving carries serious consequences, including driver's
license suspension or revocation, fines, and time in jail or prison.
Accordingly, a person charged with drunk driving must not hesitate to
seek legal counsel from an experienced criminal defense attorney in
order to best protect his or her interests.
- David Bryden:
The officer will ask you to get out of the car and take a few routine
tests. Tell the officer that you would like to cooperate, however, a
lawyer has instructed you not to take any field sobriety tests. The
officer may threaten to arrest you if you do no. IGNORE THE THREAT.
There is probably less reason to take you into custody before taking
the field test then after taking the field test. Many police have
developed routines to make you look drunk and fail the test. If
arrested you must take a blood, urine, or breath test at the police
station, you do not need to take a field sobriety test.
Ojai
- Blatz, Pyfrom & Associates:
The law enforcement officer will seize your license if you are arrested
for DUI with an unlawful BAC or after you refused to submit to a
chemical or physical test. Your license will be seized and the officer
will issue you a temporary driver's license and as your notice of
suspension. However, you may request a review of the driver's license
suspension by the department of motor vehicles within 10 days following
your arrest. It is very important that a review is requested because
many times we are able to save your license for you.
Orange (County)
- Spring, James:
Getting arrested in Southern California for Driving Under the Influence (DUI) can be one of the scariest things to happen to someone. Often, people charged with DUI have never been in trouble before and never dreamed of staying the night in jail. It is important to contact a Southern California DUI attorney immediately so we can handle your DMV and criminal court matters, providing the best defense possible in order to minimizing the impact of a DUI charge on your life.
- Longwith, Randall:
In a typical Orange County DUI investigation, the officer asks the DUI suspect to step out of his/her car and perform a series of "Field Sobriety Tests," or “FSTs.” These roadside “tests” usually consist of a battery of three to five exercises, usually selected by the officer; and may include walk-and-turn, one-leg-stand, Horizontal Gaze Nystagmus (follow the stimulus with your eyes), fingers-to-thumb, finger-to-nose, Rhomberg (close eyes, tilt head back and count to 30), alphabet recitation, or hand-pat. These “Simon Says-like” tests of your roadside acrobatic abilities were not designed to objectively determine whether you were in fact impaired by alcohol. Police and prosecutors use them for one reason: to collect evidence against you. These tests are designed for failure and cannot be passed. So don’t be surprised when the officer says you failed miserably the “tests’ that you know you performed flawlessly.
The National Highway Traffic Safety Administration (NHTSA) conducted a series of laboratory and field studies to evaluate the accuracy of these Field Sobriety Tests in signaling whether a DUI suspect is actually impaired. Of all the field sobriety tests, NHTSA found three to be the most reliable: The Horizontal Gaze Nystagmus, The Walk and Turn, and The One Leg Stand. These three became known as the "Standardized Field Sobriety Tests" (SFSTs). NHTSA claims to have quantified that the accuracy of the SFSTs in determining whether a DUI suspect's BAC is .10 or higher:
HGN: Horizontal gaze nystagmus is an involuntary jerking of the eyeball which occurs naturally as the eyes gaze to the side. Under normal circumstances, nystagmus occurs when the eyes are rotated at high peripheral angles. However, when a person is impaired by alcohol, nystagmus is exaggerated and may occur at lesser angles. An alcohol-impaired person will also often have difficulty smoothly tracking a moving object. In the HGN test, the officer observes the eyes of a suspect as the suspect follows a slowly moving object such as a pen or small flashlight, horizontally with his eyes. The examiner looks for three indicators of impairment in each eye: if the eye cannot follow a moving object smoothly, if jerking is distinct when the eye is at maximum deviation, and if the angle of onset of jerking is within 45 degrees of center. If, between the two eyes, four or more clues appear, the suspect likely has a BAC of 0.10 or greater. NHTSA research indicates that this test allows proper classification of approximately 77 percent of suspects. HGN may also indicate consumption of seizure medications, phencyclidine, a variety of inhalants, barbiturates, and other depressants.
The WALK AND TURN & ONE LEG STAND TESTS: These tests are “divided attention” tests that are supposedly easily performed by most sober people. They require a suspect to listen to and follow instructions while performing “simple” physical movements. Impaired persons, they say, have difficulty with tasks requiring their attention to be divided between simple mental and physical exercises. In the walk-and-turn test, the subject is directed to take nine steps, heel-to-toe, along a straight line. After taking the steps, the suspect must turn on one foot and return in the same manner in the opposite direction. The examiner looks for seven indicators of impairment: if the suspect cannot keep balance while listening to the instructions, begins before the instructions are finished, stops while walking to regain balance, does not touch heel-to-toe, uses arms to balance, loses balance while turning, or takes an incorrect number of steps. NHTSA research indicates that 68 percent of individuals who exhibit two or more indicators in the performance of the test will have a BAC of 0.10 or greater. In the one-leg stand test, the suspect is instructed to stand with one foot approximately six inches off the ground and count aloud by thousands (One thousand-one, one thousand-two, etc.) until told to put the foot down. The officer times the subject for a 30 seconds. The officer looks for four indicators of impairment, including swaying while balancing, using arms to balance, hopping to maintain balance, and putting the foot down. NHTSA research indicates that 65 percent of individuals who exhibit two or more such indicators in the performance of the test will have a BAC of 0.10 of greater. The effectiveness of SFST in court testimony and evidence depends upon the cumulative total of impairment indicators provided by the three-test battery. The greater the number of indicators, the theory goes, the more convincing the testimony. The theory of the prosecution is that because SFST are administered according to national standards and supported by “significant research,” they have greater credibility than mere subjective testimony.
TEST VALIDITY: In reality, however, how valid are these field sobriety tests, really? Well, in 1991, a Clemson University scientist by the name of Dr. Spurgeon Cole conducted a study on the accuracy of FSTs. His staff videotaped 21 individuals performing six common field sobriety tests, then showed the tapes to 14 police officers and asked them to decide whether the suspects had "had too much to drink to drive." Unknown to the officers, the blood-alcohol concentration of each of the 21 subjects was .00 percent; THEY WERE ALL STONE SOBER. The results: 46 percent, nearly half, of the time the officers gave their opinion that the sober subject was too drunk to drive!!! Their “expert opinions” on impairment based on FST performance were not much better than flipping a coin. Cole & Nowaczyk, Field Sobriety Tests: Are They Designed for Failure?, 79 Perceptual and Motor Skills 99 (1994).
What about the new, improved "standardized" tests? Consider the research funded by the National Highway Traffic Safety Administration (NHTSA), which resulted in the later adoption of the so-called "standardized" field sobriety tests. In that study, researchers determined that the three most effective field sobriety tests (FSTs) were walk-and-turn, one-leg stand, and horizontal gaze nystagmus. Yet, even using just these supposedly more accurate tests, the researchers found that 47 percent of the subjects who would have been arrested based upon test performance actually had blood-alcohol concentrations of less than the legal limit of. 10 percent. In other words, almost half of all persons "failing" the tests were not legally under the influence of alcohol!
In 1987, many of the original researchers at the Southern California Research Institute who had been federally funded to come up with a standardized battery published findings of their research. The study concluded that FSTs do not accurately measure driving impairment. In an article entitled Sobriety Tests for the Presence of Drugs, 3(1) Alcohol, Drugs and Driving 25 (1987), researchers recognized that such tests are designed to determine balance, steadiness, and reaction time but concluded that a connection between these factors and driving ability "is not apparent since neither a steady stance nor simple movement time is essential to the safe operation of a motor vehicle." While conceding that field sobriety tests may indicate the presence of alcohol, the researchers found that they do not necessarily measure driving ability.
The fact that these tests are largely unfamiliar to most people and not well practiced, and that the tests are given under extremely adverse conditions, make them more difficult for people to perform. As few as two miscues in performance can result in an individual being classified as impaired because of alcohol consumption when the problem may actually be the result of the unfamiliarity with the test, nervousness, fatigue, injuries, intimidation, weight, age, physical condition & natural coordination or lack thereof, the distraction of traffic and lights and police, weather conditions, memory, or the clarity of DUI officer's instructions.
Moreover, the scientist hired by the National Highway Traffic Safety Administration, Marceline Burns, has admitted that the field tests do not measure impairment. She has also admitted that they are unreliable unless they are administered in strict compliance with STANDARDIZED TESTING PROCEDURES. The fact is that in most Orange County DUI, Los Angeles DUI, Riverside DUI, and San Bernardino DUI investigations, these Field Sobriety Tests are not conducted in a manner which is not approved by the National Highway Traffic Safety Administration. Proper cross examination of the arresting officer can demonstrate that these exercises do not predict impairment for the purposes of driving a motor vehicle.
- William Weinberg:
BASIC CALIFORNIA DUI LAW
It is a crime to drive a car in California if your blood-alcohol concentration, or BAC, is a .08 or higher. It is also illegal to drive a car while under the influence of alcohol and/or drugs.
Why is this important? It gives the prosecutor the chance to charge you with DUI even if your BAC isn’t high. This split in the law closed a major loophole and prevented the “good drunk driver” defense employed by defense attorneys up and down the state for many years.
A TYPICAL SCENARIO
Dave Defendant is an account executive and a life insurance company. He just got promoted, and the head of Human Resources decided that Dave deserved a dinner party in his honor.
After the party, Dave saw that Lisa, a co-worker, looked a bit drunk and could tell she wouldn’t be safe driving home. Feeling responsible in his new position, he offered to drive her home. Lisa accepted, knowing she shouldn’t drive.
Dave shouldn’t have either. But he’d been drinking wine slowly and steadily throughout the evening, and didn’t feel “really” drunk, just a little “buzzed”. So they climbed into Dave’s Acura and headed for Lisa’s house.
On the way, Dave tried to put in a new CD he’d just gotten as a gift. He dropped the disc onto the floor and ran his fingers around to find it. In doing so, he swerved a little out of his lane. This caught the attention of Deputy Dan, a police officer stationed at the side of the highway.
Deputy Dan flipped on his lights and sirens and went after Dave. It took a while for Dave to realize that Dan was signaling him to pull over, but he finally did. Dave got out of the car and held onto the door for balance. He was really feeling it now.
Deputy Dan got out of his car and approached Dave. He saw that Dave’s eyes were bloodshot, watery and drooping. Dan decided to ask Dave to perform some Field Sobriety Tests. These include the Horizontal Gaze Nystagmus, Finger-to-Nose, Walk and Turn, One-Leg Stand tests. All these tests are designed to test your motor skills and they help the officer form an opinion as to whether you are under the influence of alcohol or drugs.
After completing the tests, Dan asked Dave to perform a breathalyzer test. Dave blew into the machine several times. At that point, he was handcuffed and taken to jail. While at the jail, he was given a choice between blood and breath tests. When Dave was issued a California Driver’s License, he agreed to provide a sample of his breath or blood upon demand of a police officer after a lawful arrest. This is called “Implied Consent”.
Dave chose a blood test. After the sample was collected, Dave was booked and then released several hours later. Should Dave hire a lawyer?
THE STOP
The first question a lawyer will want to answer is whether there was a lawful stop. Under Dave’s circumstances, the stop may not have been lawful because Dave didn’t swerve out of his lane, merely within it. Under California law, intra-lane weaving isn’t necessarily sufficient cause for a police officer to stop and detain someone under suspicion of drunk driving.
THE OFFICER’S OBSERVATIONS
Deputy Dan thought that Dave’s eyes looked bloodshot and watery. This phrase is the single most commonly used terminology in all of these cases. The officer’s subjective (personal) belief that watery and red eyes indicate drinking, is not supported by scientific research. Dave could have been tired, his eyes could have been irritated from nearby smokers on the bar patio. He could have been wearing contact lenses.
Police always note these symptoms. They always note that the person had an unsteady gait, needed to hold onto the car for balance and couldn’t perform Field Sobriety Tests without missing steps or failing to follow instructions. In some cases, the police penalize a driver for merely repeating the instruction given to him, as if this proves the driver is drunk.
THE P.A.S. BREATH TEST
The P.A.S. test, or Preliminary Alcohol Screening test measures the concentration of alcohol in the breath. These test results are often incorrect. The machine may be in poor working order, not calibrated, or the officer may not know how to use it properly. There are many issues that may affect it’s proper use.
THE BLOOD TEST
When Dave chose to have his blood drawn, he narrowed his chances of avoiding a guilty plea. Blood tests, no matter what you hear, are far more reliable than other chemical tests. The lab doing the testing takes the vial, adds some chemicals and analyzes the results. If the sample were contaminated, or if the lab only tested blood serum, the results could be in error. That is why we perform blood splits. Part of the original sample is sent to an independent lab and is re-analyzed. If there is a different result, you may have a defense.
THE DMV HEARING
What most drivers don’t understand is that there is a separate, parallel, unrelated action taken by the DMV after your arrest.
The officer will take your license from you the night of your arrest. He will give you a pink piece of paper. That paper says that you have 30 days to drive before your license is suspended for four months. That paper also says that you can request an administrative hearing within 10 days from the date of the arrest. This hearing takes place before a hearing officer who acts as both Judge and prosecutor.
Even if I have your charges reduced or dismissed, the DMV may take your license. Only an acquittal or finding of factual innocence as to the .08 charge will help you with the DMV. You must fight the hearing very hard. And if you win the DMV hearing and later plead guilty or are found guilty by a jury, the DMV will suspend your license anyway. That is why hiring an experienced Orange County criminal DUI defense attorney is so important.
Remember: The first rule of criminal law is this: if you don’t fight it now, you can’t fight it later. You must request a hearing and request it in writing. This can be done by telephone or by fax. You simply write your name, driver’s license number, date of birth and a request for a hearing and fax it to the DMV driver’s safety office. In Orange County, that office is located in Irvine.
CONCLUSION
There are many ways to successfully challenge the DUI charge. If you don’t hire the right lawyer, one who knows what to look for, you may as well plead guilty at the arraignment and save your money for the fines.
- Jeremy Goldman:
Any delay in hiring an attorney could result in increased penalties and major disruptions to your life. If you do not contact the DMV within 10 days to schedule an administrative hearing, you could lose your license. A DUI arrest could also result in jail time, substantial fines, mandatory alcohol and drug programs, installation of an ignition interlock device on your vehicle, and increased insurance costs.
Ifthis is your second or third offense, consequences could be much more severe. Know your options. In California, there are alternative alcohol and drug treatment programs as alternatives to jail time.
- Earnest L. Eady:
Criminal Procedure Rules for Plea Agreements and Relief Based on
Failure to Warn
Pursuant to Federal Rule of Criminal Procedure (FRCP) 11, prosecutors
may promise to move to dismiss other charges or recommend that the
court authorize a specific sentence or sentencing range in order to
encourage a criminal defendant to plead guilty to a certain charge. In
addition, Rule 11 requires courts to advise a defendant considering
entering into a plea agreement that the defendant has no right to
withdraw the plea if the court does not follow the prosecutor's request
or recommendation.
In fact, failure to warn a defendant that there is no right to
withdraw a plea if the court rejects the prosecutor's request or
recommendation may entitle a defendant who is subsequently convicted to
obtain relief based on a Rule 11 failing.
The Plain Error Standard
In order to obtain relief based on a claim of error, the defendant
must generally "preserve" the claim of error by making a timely
objection. In the absence of a timely objection, a claim of error
becomes "unpreserved" and the standard for reversal is the plain error
standard.
Under FRCP 52(b), courts may consider "a plain error that affects
substantial rights...even though it was not brought to the court's
attention." The U.S. Supreme Court has interpreted the plain error
standard to mean that an error must have "substantial and injurious
effect or influence in determining the...verdict." Further, the Court
has required defendants seeking relief based on plain error to show "a
reasonable probability that, but for [the error claimed], the result of
the proceeding would have been different."
Three Limitations on Appellate Authority Under Rule 52(b)
As set forth by the Court in U.S. v. Olano (1993), there
are three limitations on the authority of a court of appeals to reverse
a defendant's conviction based on plain error:
- There must be an "error" – a deviation from a legal rule
- The error must be "plain" – synonymous with "clear" or "obvious"
- The plain error must "affect substantial rights" – i.e., prejudicial influence on the verdict
Upon satisfaction of these three conditions, a court of appeals
should exercise its discretion to afford a convicted defendant relief
and allow the defendant to withdraw the guilty plea.
Relief for an Unpreserved Rule 11 Failing
In 2004, the U.S. Supreme Court held in U.S. v. Dominguez Benitez
that a defendant seeking to obtain relief for an unpreserved Rule 11
failing must show a reasonable probability that he would not have
pleaded guilty if he had been appropriately warned.
In the Dominguez Benitez case, the defendant agreed to
plead guilty on a conspiracy count, according to a plea agreement that
provided the prosecutor would dismiss another charge for drug
possession and recommend that the sentencing court authorize a reduced
minimum sentence. Although the written plea agreement said that the
defendant could not withdraw his plea if the court did not accept the
prosecutor's recommendations, the district court failed to warn the
defendant as such in the plea colloquy, as Rule 11 instructs.
Subsequently, the district court determined the defendant ineligible
for a reduced sentence and sentenced him instead to the mandatory
minimum sentence for the conspiracy count.
The Ninth Circuit's Two-Part Test for Plain Error
On appeal, the Ninth Circuit Court of Appeals agreed with the
defendant that the omitted warning required reversal. In reversing the
defendant's conviction, the Ninth Circuit applied a two-part test that
requires the defendant seeking relief based on plain error to prove:
- That the court's error was not minor or technical, and
- That the defendant did not understand the rights at issue when he entered his guilty plea.
However,
the U.S. Supreme Court criticized the Ninth Circuit's two-part test for
failing to consider the causal connection between an omitted Rule 11
warning and a defendant's plea decision. Asserting the importance of a
causal connection, the Court concluded that the omitted Rule 11 warning
made no difference to the outcome of the defendant's plea agreement in
this case. The Court reasoned that the evidence showed both a
controlled sale of drugs to an informant and a confession, which makes
it "hard to see here how the warning could have had an effect on [the
defendant's] assessment of his strategic position." Further, the plea
agreement (which specifically warned that the defendant could not
withdraw his plea if the court refused to accept the prosecutor's
recommendations) was read to the defendant in his native Spanish,
tending to show that the Rule 11 error was inconsequential.
Fred Ray:
After a typical California DUI arrest, you may have only ten days to
request a hearing from the Department of Motor Vehicles to challenge
the administrative suspension of your California driving privilege. If
a hearing is not set, and a "stay" (or postponement) of the suspension
is not requested, your license may be automatically suspended after 30
days if your blood alcohol level was a 0.08% or greater. If you have
just suffered a DUI arrest, it is crucial that you call us immediately
for a consultation so we can assess your situation and act to preserve
your hearing right, if applicable.
John Brower: In recent
years, California has experienced sharp declines in vehicular accidents
involving drinking and driving. Many attribute this to the state’s
laws that apply to driving under the influence (DUI), which are some of
the strictest in the nation.
The California Vehicle Code includes two basic drunk-driving laws,
sections 23152(a) and 23152(b). Under the first, it is a misdemeanor to
drive under the influence of alcohol and/or drugs. Under the second, it
is a misdemeanor to drive with .08% or more of alcohol in your blood.
The law provides that a defendant Driving under the influence is both a
criminal and civil matter. Drivers caught with alcohol levels in their
blood or breath that exceed legal levels, or those who refuse to take
(and complete) a chemical test, are dealt with in two ways:
First, they are prosecuted for the criminal offense of DUI or refusal.
Criminal penalties can include jail and prison, fines, treatment,
probation and license suspension. Second, they are subject to licensing
action by the Department of Motor Vehicles. One result of the continued
toughening of California's DUI laws is that they have become
increasingly complex ’ a good reason for you to contact the Law
Offices of Ronald G. Brower if you or a loved one is accused of
violations under this code. An even better reason is the success rate
we’ve enjoyed with our aggressive defense of individuals charged
under California’s drunk-driving statutes.
Jake Brower: In
recent years, California has experienced sharp declines in vehicular
accidents involving drinking and driving. Many attribute this to the
state’s laws that apply to driving under the influence (DUI), which
are some of the strictest in the nation.
The California Vehicle Code includes two basic drunk-driving laws,
sections 23152(a) and 23152(b). Under the first, it is a misdemeanor to
drive under the influence of alcohol and/or drugs. Under the second, it
is a misdemeanor to drive with .08% or more of alcohol in your blood.
The law provides that a defendant Driving under the influence is both a
criminal and civil matter. Drivers caught with alcohol levels in their
blood or breath that exceed legal levels, or those who refuse to take
(and complete) a chemical test, are dealt with in two ways:
First, they are prosecuted for the criminal offense of DUI or refusal.
Criminal penalties can include jail and prison, fines, treatment,
probation and license suspension. Second, they are subject to licensing
action by the Department of Motor Vehicles.
Daryl
Thompson:
A DUI arrest can happen to anyone.
Joshua Stein:
DUI and other suspension hearing sometimes require quick response on
your part, so that you many obtain a right to a hearing, regarding the
possible suspension of your license. This is mandatory under DUI and
other alcohol and drug related cases.
Ronald Brower: In
recent years, California has experienced sharp declines in vehicular
accidents involving drinking and driving. Many attribute this to the
state’s laws that apply to driving under the influence (DUI), which
are some of the strictest in the nation.
The California Vehicle Code includes two basic drunk-driving laws,
sections 23152(a) and 23152(b). Under the first, it is a misdemeanor to
drive under the influence of alcohol and/or drugs. Under the second, it
is a misdemeanor to drive with .08% or more of alcohol in your blood.
The law provides that a defendant Driving under the influence is both a
criminal and civil matter. Drivers caught with alcohol levels in their
blood or breath that exceed legal levels, or those who refuse to take
(and complete) a chemical test, are dealt with in two ways:
First, they are prosecuted for the criminal offense of DUI or refusal.
Criminal penalties can include jail and prison, fines, treatment,
probation and license suspension. Second, they are subject to licensing
action by the Department of Motor Vehicles.
Palm Desert
Dale Gribow:
10 THINGS TO KNOW ABOUT A DUI:
- To save your California drivers license or privileges, you
must request a DMV hearing within 10 days.
- The 10 day time
limit begins running from the issuance date of the order of
suspension/temporary drivers license endorsement: i.e. administrative
per se form.
- The administrative per se/order of
suspension/temporary drivers license endorsement is the 8x10 piece of
paper that the officer gave you when he took your license. It is a
white or pink DMV form PS360 that gives you the right to drive for 30
days before your license is suspended for 4 months.
- Even if
the officer did not snatch your license under the stop and snatch law
and give you this form, DMV will probably automatically take action
against your drivers license.
- If you are from another state
and the officer did not take your license, that state may also take
action against your drivers license.
- This temporary drivers
license endorsement is good for only 30 days from the issue date. (If
the DMV hearing is requested within 10 days, your driving privileges
will be extended, there will be a delay of any suspension until the
outcome of your DMV hearing).
- Please note that a driving under
the influence creates 2 separate proceedings that you must address. One
is the court date and the other is the DMV hearing. The outcome of one
does not necessarily affect the other.
- There are only 3 issues
at the hearing if you completed a blood or breath test. They are set
forth on the back of the DMV paper. The main issue is if the officer
had probable cause to stop or contact you and whether the chemical test
is beatable.
- The DMV has the burden of proof on all 3 issues
and they must win all 3 issues to take your license away. However, the
DMV does not use the same rules of evidence as the courts and usually
wins 98% of these cases.
- At a DMV hearing, your attorney has
to knock out one DMV issue to save your license and for you to avoid
any reissue fee and/or proof of insurance (SR22 filing).
Pacific Palisades
- Earl Ellis:
Unlike civil law, which involves private law suits between two or more private entities, criminal law attorneys represent clients who are being prosecuted by the state or federal government for an act that has been classified as a crime. Any act or failure to perform an act as designated by public law is considered a crime. With the exception of strict liability crimes, most crimes consist of three elements: an act (actus reus), a mental state (mens rea) and the intent to do social harm. Crimes are classified as 'misdemeanors' (less serious offenses that are normally punishable by a fine like some traffic violations, petty theft, or possession of a small amount of marijuana) and 'felonies' (more serious offenses that warrant imprisonment of one or more years, such as rape, grand theft, assault and battery, assault with a deadly weapon, or homicide/murder).
In criminal law, the suit is initiated by the state or federal government through a prosecutor rather than being initiated by the victim, as it is in civil law. Plaintiffs in a civil law suit only need to show by a preponderance of the evidence that a defendant is 51% or more liable (responsible) for the damages. But, the prosecutor in a criminal law case has to prove to the judge or jury 'beyond a reasonable doubt' that the defendant is guilty of the crime charged.
Palmdale
- Olaf Landsgaard:
A drunk driving arrest experience starts when a police officer notices
your vehicle. You can be noticed because you were
speeding or weaving. Police are trained in the visual
detection drunk drivers. Their training gives directions
on stopping a car for such small actions, such
as gripping the steering wheel too tightly, making
wide turns, and failing to stop properly at a stop
sign or light. This training comes from the National
Highway Traffic Safety Administration (N.H.T.S.A).
Protect your driving privileges and your rights by
starting with an experienced lawyer to represent
you in court.
Palo Alto
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