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Category Archives: Penalties

The Walk and Turn Test

When a police officer stops a driver for suspicion of DUI, there are three standardized field sobriety tests the officer may administer that are recognized by the National Highway Traffic Safety Administration – the “horizontal gaze nystagmus,” the “one-leg stand,” and the “walk and turn.”

The walk and turn test requires a driver to walk heel-to-toe along a line for nine steps and then turn and return. The test evaluates both the driver’s ability to follow directions and ability to physically complete the test.

A driver fails the walk and turn test if he or she is unable to maintain balance while completing the test or fails to follow the police officer’s instructions. Additionally, a driver may be deemed to have failed the test if he or she stops walking, steps off the line, is unable to maintain the required heel-to-toe stepping pattern, raises his or her arms, takes the incorrect number of steps, or turns improperly.

If you fail the walk and turn test, it is possible your Orange County DUI attorney will be able to prevent the results from being entered into evidence at your trial. In order for the results of a walk and turn test to be valid, the test must be conducted using a straight line on a reasonably hard, dry, and level surface. If your test was not conducted in these conditions, your Orange County DUI attorney will argue that the results of the test should not reach the jury.

Further, research indicates the walk and turn test can produce inaccurate results for those with back or middle ear problems, over the age of 65, or wearing high-heeled shoes during the test. If any of these characteristics apply to you, your Orange County DUI attorney will argue your test results are too unreliable to be admitted into evidence.

If you need legal assistance defending a drunk driving charge, please contact Orange County DUI attorney Chad Maddox, Esq.

Penalties and Punishments

This topic is very broad.  You may find what you are looking for in a more specific Article, such as 1st Offense or DUI with Injury, etc. Locate these to the left under “Articles”.  For a comprehensive overview of how punishment is decided in court, please review the court’s benchguide: 2008 Sentencing Guidelines Bench Guide

Also, punishments are also covered in the DUI benchguide, which again, has flaws.  You should have an experienced attorney litigating any specific issue relevant to your case, even if these guides indicate the law is settled against you. 2009 DUI Bench Guide

2nd / 3rd – Restricted License

The Legislature amended the Vehicle Code to allow a restricted license sooner for 2nd and 3rd offenders.  The law became operative on July 1, 2010.  Many are wondering if it applies to them.  Perhaps they were arrested before 7/1/2010. Maybe they were even convicted before then.  Well, the DMV is telling everyone that the new law only applies to them if thier new DUI was committed after 7/1/2010.  By that logic, a 3rd offender today could get a restricted license  sooner than a 2nd offender who had their 2nd DUI prior to 7/1/2010. The DMV really missed the point of this new amendment.

The correct analysis of the amendment creates an incentive for ALL 2nd and 3rd offenders to put an ignition interlock device in thier car, and get a restricted license early.  The only real limitation is that their most recent DUI needs to be an alcohol only offense.  If the most recent DUI involved drugs (legal or illegal), then the new law does not apply to them.

Chad R. Maddox has already won a challenge against the DMV on this new law in Orange County, Order Granting Writ and has many more challenges pending in Los Angeles County.  The Legislature has taken a new approach to repeat offenders as a result of the data they reviewed.  They concluded that it is in the best interest of the public to give repeat offenders the incentive to install these devices.  They concluded that public safety is increased by this incentive.  They are trying to be proactive in the fight against drunk drivers.  The DMV just hasn’t accepted these realities.  See more at:

If you’ve been denied a restricted license under the new law, contact us today to find out how we can help.

DUI with Injury

Felony Or Misdemeanor?

CVC §23153 may be charged as a felony or a misdemeanor under  CVC §23554.  The prosecutor’s decision whether to charge a §23153 offense as a felony or a misdemeanor is generally based on the seriousness of the injury involved and the number of prior convictions.   They consider whether or not the victim was hospitalized, or whether or not the victim suffered a permanent injury.

This crime is more difficult to prove than an ordinary DUI.  The prosecutor must prove that the driver did an act forbidden by law, or neglected a duty imposed by law, and that act or neglect proximately caused bodily injury to someone other than the driver.  The forbidden act or neglected duty, is known as the supporting offense. Basically, the supporting offense is some wrongful act, usually a Vehicle Code infraction, that is alleged to be the cause of the victim’s injuries. It must be proved beyond a reaonable doubt just like it would have to be proved at a trial on that charge alone.

The driver’s act must be the legally responsible cause of the injury. The Prosecution has the burden of proving proximate cause, and may satisfy that burden by producing “evidence from which it may be reasonably inferred that the defendant’s act was a substantial factor in producing” the harm.

DUI With Great Bodily Injury

If the injury is serious enough, the felony DUI under CVC §23153 constitutes a strike with a consecutive three year enhancement. See Penal Code §12022.7.

Pen. C. §12022.7, subd. (e) defines great bodily injury as  “a significant or substantial physical injury.”  It is an injury that is greater than minor or moderate harm. The question of what constitutes “great bodily injury” is a question for the jury, not the judge.

A defendant sentenced to state prison following a conviction of CVC §23153 with an allegation pursuant to P.C. §12022.7 found to be true must serve 85 percent of the sentence because such a conviction qualifies as a violent felony pursuant to P.C. §2933.1 and §667.5. P.C. §667.5 (c) (8) classifies a violent felony as:  “Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in section 12022.7.”

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

Your License

If you were arrested for a DUI, the arresting officer likely took your physical license away from you and gave you a pink temporary license that is valid for 30 days.

  • The Temporary License that you got at the time of your release from jail in place of your Real Driver’s License has a HIDDEN TIME BOMB. You MUST CONTACT THE DMV WITHIN 10 DAYS OF YOUR ARREST AND REQUEST A HEARING. If you make a timely request, the suspension of your license will be stayed until the final determination of your case by the DMV. You also have the RIGHT TO APPEAL a decision against you to a REAL JUDGE
  • If you are going to hire an attorney, do so prior to contacting DMV. Your attorney will ensure that you are prepared for your DMV case. Furthermore, your attorney will need to coordinate your hearing date with your defense in Court. If you are approaching the 10 day limit, call the DMV immediately to request an in-person hearing and advise them that your attorney will be contacting them to set up a date. Request a stay and take note of the person you speak with. You must request a hearing through a Driver Safety Office; do not call a DMV Field Office. In Orange County, the Irvine Driver Safety Office is the appropriate office.

Fax a written request to them at (949) 440-4424. If you call them, you will not have any proof you asked for a hearing. (949) 440-4436.

  • DMV CASES CAN BE WON. Many people think that if their blood or breath test was 0.08% or more they will automatically loose their license. THIS IS NOT TRUE. There are many technical/scientific defenses including the failure to strictly comply with the California Code of Regulations, which can and do result in suspensions being set aside. Our Office has focused on finding systematic failures of government agencies to follow the rules set forth in Title 17 of the California Code of Regulations which has resulted in successful challenges to DMV suspensions in a majority of our cases over the last ten years.
    ( Learn more about Successful Challenges to DMV)
  • An Attorney who specializes in DUI Defense can also guide you through the process in ways that will reduce any suspension imposed by 50-75%.

THE DMV HEARING OFFICERS ARE TRAINED TO SUSPEND YOUR LICENSE

In fact, they get in trouble if they don’t.  Here is a public record request I used to get a copy of an internal DMV memo which demonstrates the kind of pressure on the DMV hearing officers to suspend your license: 08-10-27 memo SD driver safety office

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.

Under 21

The so-called Zero Tolerance law is found in Vehicle Code section 23136.  If you are under 21, and drive with a BAC of .01% or more, you may lose your license for 1 year.  Of course you may apply for a restricted license during that time – see VC 13353.8 and the DMV form DS2694 – Critical Need to Drive

But if you are over .01%, that does not mean you were impaired.  You must be .05% or more at the time of driving to be in violation of the under 21 DUI statute found in VC 23140.

If you are under 21 and have a BAC test with a result of .01% or more (no matter how high), do not assume you have no hope.  Consider cases like this one, where an expert testified that a reading of .01% does not necessarily mean the driver actually was .01% and the court overturned the DMV suspension. Nazerian v. Gourely