Orange County Criminal Lawyer Offices

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Category Archives: The Court

1st Offense

(Misdemeanor) BY THE COURT:

PROBATION:

3 to 5 years informal probation

JAIL:

0 - 6 months jail

COURT FINES:

$390 - $1000 BASE FINE + PENALTY ASSESSMENT = $2000 minimum.

DUI SCHOOL:

  • Attendance at First Offender Program (FOP)
  • BAC ≤ .14 – 3-month FOP
  • BAC 15 to .19 – 6-month FOP
  • BAC ≥ .20 – 9-month FOP
  • Refusal – 9-month FOP

OC DUI Schools

LA DUI Schools

All CA DUI Schools

IF CONVICTED IN Los Angeles, Alameda, Sacramento or Tulare counties:

  • Ignition Interlock Device for 5 months

CERTAIN FACTS REQUIRE INCREASED PUNISHMENTS:

  • Refusal - 48 hours Jail, 1 year license suspension
  • Passenger in Vehicle Under Age 14 – Mandatory additional 48 hours Jail
  • Speeding ≥ 30 mph on Freeway or ≥ 20 mph on Street – Mandatory additional 60 days Jail

DMV ACTION UPON CONVICTION:

  • 6-month license suspension
  • 10-Month license suspension if BAC >0.20% or refusal
  • Restriction Eligibility: Upon meeting certain requirements, DMV can issue a restricted license if no other suspensions are in place

SEPARATE DMV ADMINISTRATIVE PER SE (APS) SUSPENSION:

  • BAC < .08 – No additional suspension other than what is listed above for conviction
  • BAC ≥ .08 – 4-month suspension with eligibility to obtain restricted license after serving 30-day suspension in addition to what is listed above for conviction
  • Refusal – 1-year mandatory suspension with no option for restricted license

Marijuana

As many know, possession of marijuana (less than 1 oz) was just made an infraction as of January 1, 2011.  This reduces the severity of possession of marijuana, which was previously a misdemeanor.  This change comes after the possession of marijuana was made legal in California if you have a medical need (recommendation from a doctor).  While it still remains illegal under federal laws to possess it, the everyday practical effect is that people in CA are not prosecuted if they have a medical recommendation. However, this does not make it legal to use marijuana and then drive, if it effects your ability to drive safely.

Naturally, people accused of DUI (marijuana) wonder how a prosecutor could ever legally prove he/she was impaired by the marijuana.  Honestly, if the jury follows the law, it is very unlikley that the evidence could convince them beyond a reasonable doubt.  Here are a few articles which the experts may rely on:

Marijuana, Alcohol, and Actual Driving Performance

Marijuana and Alcohol Combined Increase Impairment

Alcohol impairs driving more than marijuana

FST to test for MJ impairment

Marijuana and SFST and driving

DUI Defenses

A defense is a legal excuse which protects a person from being convicted.  The most common example which most people understand is the defense of “self-defense”. If someone tries to harm you, you have the right to defend yourself (using reasonable force).

In a DUI case, there are very few actual legal “defenses”.  Often, people are found not guilty of DUI because they can effectively explain the facts to the jury in a way which demonstrates that they are in fact Not Guilty – that the facts do not amount to proof beyond a reasonable doubt. Consider these explanations:

FACTUAL DEFENSES

  1. Your Blood Alcohol Level Was Lower When Driving Than When Tested

  2. You were effected by lack of sleep, not alcohol. See Sleep depravation and Sleep – Fatigue, alcohol and impairment

  3. The Agency Maintaining the Testing Equipment Has Not Complied With The California Code Of Regulations, which raises doubts as to the accuracy of the test performed in your case.

  4. You had a medical condition such as GERD or diabetes which effected the chemical test.

  5. The breath test assumes certain values which may not be appropriate for you (breath tests measure a sample from you which is then converted into a number representing the alcohol in your blood using a calculation of 2100 to 1 (partition ratio) which is based on an average).

  6. Prosecution experts assume certain facts when they estimate your BAC at the time of driving.  These assumptions include a formula commonly referred to as the Widmark formula. This formula has many flaws, such as over-estimating the BAC for overweight drivers. See Widmark not appropriate for overweight people

  7. Prosecution experts assume certain facts about absorption, peak, and elimination of alcohol in a person over time.  These assumptions will over-estimate a driver’s BAC under certain circumstances.  For example, if the driver was under a lot of stress. See Stress causes over-estimate of BAC

  8. A urine test involves calculating the alcohol in the urine sample, and then calculating how much alcohol was in the blood based on that concentration.  This method assumes a certain correlation between urine concentration and blood concentration. It is scientifically untrustworthy. See Urine unpredictable

  9. The blood sample was not properly refrigerated, causing an increased risk of fermentation, which causes the test to provide a false-high number. See Temperature effects Blood test

PROCEDURAL DEFENSES

There may be procedural problems which prevent the case from going forward, and lead to a dismissal.

  1. The Officer Had No Legal Right To Pull You Over, making all the evidence obtained a product of an illegal arrest.

  2. You Were Not Given The Option To Take A Breath Or Blood Test, making the blood sample obtained a product of an illegal investigation.

  3. You Were Questioned In Violation Of Your Miranda Rights, making any statement you made inadmissible.

  4. The Sobriety Checkpoint That You Were Stopped At Was Not Run Properly, making it an illegal stop.

  5. You Have Been Denied Your Right To A Speedy Trial, requiring dismissal.

To fully understand what happened in any case, you have to become familiar with how the body absorbs, and eliminates alcohol.  When people first learn about this process, they may over-simplify it.  The foremost experts in the world have even criticised how others interpret the evidence, when they fail to recognize the wide variations in critical factors.  For axample, women taking birth control pills may absorb and eliminate alcohol differently than a woman who is not. When estimating thier BAC at the time of driving, an expert should account for these variables so that they do not mislead a jury into convicting an innocent person. Consider the following article by one of the worlds most respected experts: absorption, distribution and elimination of alcohol

Save Your Money

WHAT IS THIS GOING TO COST YOU?

The most common costs associated with a DUI arrest are court fines, attorney fees, and DUI classes. Other financial risks may include losing your job, increased insurance rates, restitution (if there was an accident), and the cost of an ignition interlock device (for multiple offenders). Here’s how we can help:

COURT COSTS:

A first time offense carries with it fines starting at $390. However, fines always include something called “Penalty Assessment” which is like a tax. The Penalty Assessment (PA) is more than 200% of your fine. Other penalties increase your out-of-pocket cost an additional 20%. If you are given a higher fine to begin with, such as $500 instead of $390, it results in another $330 out of your pocket (it’s not just $110 difference). If the court lets you convert the fine to community service, you don’t have to pay all those fees adding up to more than $1,800.00. Your fines may be doubled if you drove through a construction zone. Often, there are other ways to reduce the amount you have to pay; such as getting credit for time you spent in custody, or having your fines run concurrent to other offenses. Your DUI attorney should do whatever he can to limit your court costs.

ATTORNEY FEES:

Some firms charge large flat rates starting out as much as five thousand dollars. We charge ½ of that. They may be charging you for services you may not need (like hiring an expert to conduct a new examination of your blood sample – call to find out why this is usually a waste of money). We set a fee structure based on the idea that you only want to pay for what you need. Our total fees are as low as $2,500. Flexible payment plans are available to meet your needs. Our initial consultation is free. Please call for a quote and free consultation at (714) 547-4500.

DUI SCHOOL:

The court and/or DMV will likely want you to attend DUI classes unless you are acquitted and win your DMV hearing (read more about these possibilities on the next page). Depending on your Blood-Alcohol level, your DUI classes can last 3 months ($500), 6 months ($800), or 9 months ($1,000). As you can see, the longer the class, the more it costs (the amounts here are estimates). These fees are in addition to your court fines and fees. The bottom line is, avoiding longer classes can save you several hundred dollars. There are many ways we can save you money and time, call today and let us help you.

LICENSE REINSTATEMENT FEES

If you lose your license to the DMV and you are convicted by the court for a DUI offense, the reinstatement fees on your license will cost you approximately $125.00 to $180.00.

AUTOMOBILE INSURANCE:

With a DUI conviction and/or a suspended license charge on your driving record, you can almost guarantee that your insurance rates are bound to increase. The increase varies from carrier to carrier and in some cases, you may be dropped by your insurance provider.

BOOKING/ARREST FEES:

Believe it or not, the arresting agency can require reimbursement for the time spent taking you into custody. These fees can range anywhere from $200.00 to $500.00, and even more in some cases.

Save Your Freedom

Most first offenders only spend a night in jail, the night they were arrested.  However, there are times when a judge will sentence a first offender to additional jail.  If there was even a minor accident for example.  If you had anyone under the age of 18 in the car with you.  If you were traveling more than 95 mph on the freeway, or 20 mph over the speed limit on another road.  Many times we can convert the jail sentence to home confinement, CAL-Trans, or community service.  Of course, when thinking about what deal you might be able to make, don’t forget that you may have a winnable case.

Out of State Residents

COURT:

Even if you are charged with a Misdemeanor, you will be required to return to California for your Court appearances unless you are represented by an attorney.  Only you or your attorney can appear in court.

YOUR LICENSE:

California DMV will suspend your driving privilege here in California – even if you never had a CA license. In addition, California DMV will notify your state of the DUI suspension. Your state then takes action against your license in your state.

The problem with this system is that CA DMV requires that you complete a California DMV DUI school.  They are only located in California.  How can you attend a class once per week for three months here in California? That’s not practical.  The classes are not available online. Suspension can however be avoided if proper steps are taken in the Courtroom and with the CA DMV.

If you are unable to avoid the suspension, you may have to take steps to have the suspension in CA lifted, so you can keep or rnew your license in your state.  Forms such as a DL-4007 which you obtain from the CA DMV Mandatory Actions Unit may be necessary. Find out more, by calling my office today for a free consulation (714) 695-1500.

For more information, see the interstate compact: Interstate Compact

Out of State Priors

A prior conviction from another state may be used here in California – in court, and at the DMV.

However, there are limitations.  The prior conviction must be for an offense, which would be a DUI if committed here.  That may sound obvious, but consider that most other states have significantly different laws.  For example, some states used to make it illegal to drive with a BAC of .08%, while California still had the .10% limit.  That meant, you could be convicted in your state with a BAC of .09%, but if you had committed the same offense here, you would not be guilty.  There are significant differences from state to state, which may prevent California from using your prior conviction agaisnt you here.

In court, a challenge to the use of the prior is made by a motion.  The motion is called a motion to strike.  This is made under Vehicle Code section 41403.  It is very important that this is done correctly, because the law only allows you to attempt this once!  If it is granted, the prior may not be used against you in court or at the DMV.  If the motion is not granted in court, then the criminal case against you in CA will include the prior from the other state – but there is another way to get it removed for DMV purposes only. To do this, you need to first request it be removed by filing a DL-207 form.  It will be denied by the DMV. Then you are entitled to have that denial reviewed by a real judge in court under CCP section 1085.

You may also read the interstate compact yourself at: Interstate Compact

BAC Calculator

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Explanation of gender differences in Blood Alcohol Concentration)

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Offical DMV BAC Tables

  • This guide below shows, for a given individual, the DMV’s best guess as to what the breath test results would be for a given amount of drinking. There are so many variables in the formula used to calculate breath test results based upon weight and number of drinks consumed that it has limited utility as a way to precisely determine an individual’s breath alcohol concentration.
  • One drink=1 ounce of 80 proof spirits; 3 ounce glass of wine; or 8 ounce glass of 5% beer.
Blood Alcohol Concentration Chart for Males
(Alcohol % in bloodstream for weight (lbs) and number of drinks)
Number of drinks consumed per hour
Weight 1 2 3 4 5 6 7 8 9
100 .04 .08 .11 .15 .19 .23 .26 .30 .34
120 .03 .06 .09 .12 .16 .19 .22 .25 .28
140 .03 .05 .08 .11 .13 .16 .19 .21 .24
160 .02 .05 .07 .09 .12 .14 .16 .19 .21
180 .02 .04 .06 .08 .11 .13 .15 .17 .19
200 .02 .03 .06 .08 .09 .11 .13 .15 .17
220 .02 .03 .05 .07 .09 .10 .12 .14 .15
240 .02 .03 .05 .06 .08 .09 .11 .13 .14
Blood Alcohol Concentration Chart for Females
(Alcohol % in bloodstream for weight (lbs) and number of drinks)
Number of drinks consumed per hour
Weight 1 2 3 4 5 6 7 8 9
100 .05 .09 .14 .18 .23 .27 .32 .36 .41
120 .03 .08 .11 .15 .19 .23 .27 .30 .34
140 .03 .07 .10 .13 .16 .19 .23 .24 .29
160 .03 .06 .09 .11 .14 .17 .20 .23 .26
180 .03 .05 .08 .10 .13 .15 .18 .20 .23
200 .02 .05 .07 .09 .11 .14 .16 .18 .20
220 .02 .04 .06 .08 .10 .12 .14 .17 .19
240 .02 .04 .06 .08 .09 .11 .13 .15 .17