Articles Posted in DUI

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The usual case of driving under the influence involves alcohol. The claim by the police or District Attorney is that the driver is not only under the influence but has a blood alcohol level of more than the legal limit of .08 percent. More and more often people are being arrested for driving under the influence of prescription drugs that have nothing to do with alcohol.

Many times a doctor prescribes medication for the patient. The patient is told don’t take the medications with alcohol. The patient follows the doctor’s orders but still is arrested for being under the influence of drugs while driving. Can the patient/driver be successfully prosecuted for driving under the influence even if the doctor’s orders are followed and the patient doesn’t intend to drive under the influence? The answer can be, yes. How can this be?

Driving under the influence of drugs is a general intent crime. That means the patient/driver doesn’t need to intend to drive while under the influence of drugs, he/she just needs to willfully drive the car after intentionally taking the medication. There isn’t any specific intent to drive while under the influence needed.

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What exactly are the elements of a violation of California Vehicle Code Section 23152?

What does it take to prove you are driving in violation of CVC 23152? First of all, a violation of CVC 23152, or commonly called “drunk driving”, can occur in one of two ways. One can violate CVC 23152(a) by being under the influence of alcohol and/or drugs or by having a blood alcohol level of .08 or more at the time of driving.

To prove that a driver is under the influence of alcohol and/or drugs it must be shown that his or her physical or mental abilities are so impaired that he or she cannot drive with the “caution characteristic of a sober person of ordinary prudence under the same or similar circumstances.” That is the standard. The method of proof can consist of how the driver is actually driving the vehicle, the observations of the officer once the vehicle is stopped, the performance on the “field sobriety tests”, and the breath test in the field. Some or all of these factors may be present in every case. Also, the chemical test that is obtained after the arrest can be used to infer that, if it’s more than a .08, the driver is under the influence.

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Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) is a real problem in our veterans returning from combat deployments. Many times the conditions are not diagnosed until the veteran becomes a defendant in the criminal justice system. How the criminal justice system deals with these defendants is a great challenge in the future.

The Veteran’s Court has been instituted in some courts in California in an effort to acknowledge the veteran’s service and deal with it in an organized, comprehensive fashion complete with Veteran’s Administration participation. Yet, what happens to the veteran who doesn’t qualify for Veteran’s Court? While Veteran’s Court is a great alternative when available, in some jurisdictions, Veteran’s Court doesn’t even exist. Now Veteran’s Court funding, as all the system’s funding, is at risk.

The prosecutor who is willing to consider the defendant’s service in a meaningful way has many options at his disposal, short of entry into Veteran’s Court. A criminal defense attorney needs to present a creative alternative to a conviction or a jail sentence to the prosecutor. For example, a criminal case could be delayed with the requirement that the defendant attend counseling, job training, and medical evaluation. Community service is an option that could be added to any delay or continuance of the proceedings. The goal of the delay would be to show the prosecutor that the defendant deserves a second chance. The defendant must be willing to meet his obligation to overcome the issues that brought him to the criminal justice system’s attention. If drugs or alcohol are the cause of criminal conduct, the defendant has to meet the challenges that addiction brings. In-house residential treatment instead of jail time should be considered as an option. Out-patient follow up with vocational training showing the prosecutor that this defendant is not likely to re-offend is a must.

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Veteran’s Day is celebrated once every year by the country. Yet the sacrifice by our veterans is not always so easily recognized any day in the current criminal court system.

Often times I represent men and women who have served our country both in actual combat and in supporting roles. These individuals find themselves traumatized by their service experience to the United States of America. When they come home, all too often there are difficulties coping with day to day life. Sometimes hurdles seem too high to overcome. Depression can set in. Self-medication with drugs and alcohol can become an unhealthy and illegal fix to problems that seem overwhelming.

Once the veteran turns to drugs and alcohol he encounters the criminal justice system. When that happens, what role should the veteran’s military service play in the disposition of the case? I think that the veteran deserves every consideration possible under the law. The prosecutor should evaluate the case understanding that the veteran’s (defendant’s) service has helped protect the very system he now finds himself in.

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Recently I had the opportunity to teach a class to other attorneys. All attorneys are required to attend and complete mandatory continuing education classes on various issues in the law. One of those classes offered was “How To Defend A First Time DUI”. Since I am a Certified Specialist in Criminal I was asked to teach this six hour class.

The questions I had to ask myself started with, what would I want to know if I had to defend someone who is charged with a DUI and I had no experience in defending against such a charge? That answer is, I would want to start at the beginning of the case and go through to the end of a trial so I would know what to tell the client to expect. I had to remember that the knowledge I take for granted isn’t necessarily shared by the lawyers in the class because they don’t have the experience I have.

The class focused on how to start the process of defending someone against a DUI. The request for a DMV hearing has to be made within ten days of the arrest. An appearance has to be made at the arraignment. A decision has to be made on issues such as, can I get a better deal in the arraignment court than I can if I enter a not guilty and discuss the case with the DA later? The lawyer has to do his or her homework to know the judge who is sitting in the arraignment court so as to know if settling the case earlier rather than later is better for the client. Is it a case that should go to trial? The lawyer has to know his court, the DA, and his facts. If he goes to trial and loses will his client be punished more harshly than if he had settled before trial? What’s a good settlement?

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When you are on vacation in Southern California or if you are here on business and you are arrested for DUI what happens if you fail to appear for your first court appearance?

In order to be released when you are arrested, you will either post bail or be released on a written promise to appear on a specific date. One of the problems that the person arrested has is that if he is from out of state he or she won’t be in California when the court date comes. When the court date arrives, if the Defendant doesn’t show up, the judge has no choice but to issue a bench warrant for the absent Defendant’s arrest. Any bail that is posted will be forfeited. An additional charge of failing to appear will be added to the Defendant’s charges and pose an additional problem.

Once the warrant is issued for the Defendant’s arrest he or she becomes a fugitive. Several common issues can present itself to people with warrants out for their arrest. For example, if the Defendant goes through an airport, a security check will show the arrest warrant. Once that happens, depending on where it occurs, the Defendant could be arrested right then and there at the airport. At this point the person arrested would have to post bail at an increased amount from the original arrest.

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As soon as the red lights come on behind you, the officer is looking for signs you are Driving Under the Influence. He is trained to document the reason for the stop. He is also looking to document anything unusual that happens from the time the officer activates his red lights to the time he arrests you for DUI.

There is even a Standardized Field Sobriety Testing Manual (SFST Manual). It covers everything the arresting officer is trained to observe. In my opinion, the Field Sobriety Test (FST) is nothing more than a balance and coordination exam. Many of my clients say that they can’t do the FSTs that are given on the side of the freeway, even if they were alcohol free and trying the tests in a well lighted, quiet room.

However, before you even get to the step in the process where you are standing by the side of the road, trying to tap dance on the head of a pin while the officer breathes down your neck and trucks are thundering by, the officer has watched closely for several things. The SFST Manual tells the officer that he should look for whether or not there is an attempt to flee; slow or no response to the emergency lights from the police car; any abrupt swerving; how the vehicle stopped; and whether or not your car hit the curb or some other object.

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The cops just arrested you in Orange County, CA,and never read you your rights. How can that be? We’ve all seen how on television the Right to Remain Silent is rushed through and said by the cops through clenched teeth just as they are slapping the cuffs on the suspect. Everyone has to get their Miranda Rights read to them, don’t they? Not so fast…

Many times the police don’t even ask a suspect any questions. If they aren’t questioning you, then the police don’t need to advise you of anything. In fact, if you want to just start talking and the police aren’t asking any questions then everything you just volunteered is coming into evidence like a freight train running you over in a blur.

The police don’t have to give you your Miranda Rights unless they are interrogating you and you are in custody. If both of these requirements aren’t met then Miranda simply doesn’t apply.

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Child abuse charges are usually thought to involve sexual molestation. However, this is just one of many ways someone can be charged with child abuse. Of course, someone who is alleged to have sexually abused a child will be charged with a violation of Penal Code section 288(a) or other Penal Code sections that involve sex crimes. Force does not have to be involved in child sexual abuse. If a person is under 18 they are considered a child and the charge of child abuse can apply.

Recently, a child abuse charge was alleged against a couple who allowed their child to smoke marijuana. The child was only a toddler and the couple took a video of the incident. This kind of case is one where the abuse is obvious. If a 23 month old baby is smoking pot the charge of child abuse is self-evident. It seems that it would go without even saying it but a baby should never be allowed to smoke let alone smoke a controlled substance no matter whether we think marijuana should be legalized or not.

However, what about driving under the influence of alcohol and having your child in the car seat? Someone who drives their car while under the influence can and will be charged with child endangerment (Penal Code section 273a). The prosecutor will accuse you of endangering the health of the child by driving your car while under the influence and even though the child is strapped into the car seat, the theory is that the child is in danger because you, the driver, aren’t as able to care for his or her safety as if you were driving sober. It increases punishment for driving under the influence and labels you as a child abuser even though you didn’t have any intent to strike, molest, or otherwise hurt your child.

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