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If you have been arrested for a DUI you need to act quickly to protect your rights. There is no substitute for getting the advice from a knowledgeable DUI lawyer. Every case has its own set of unique factors that should be analyzed carefully. Fortunately, most DUI lawyers offer free initial consultations. Take advantage of this and look for an attorney you can trust. Not all DUI attorneys are created equal. You will know you have found the right one when you find one who you can trust and who you can afford. In addition, if you are going to hire a DUI lawyer anyways, it is preferable to have them schedule your DMV hearing for you. If the attorney schedules the DMV hearing, it is more likely that the police reports and other discovery materials make it to the right place in time for the hearing. Likewise, as it can be a painful process to try to get through to the DMV, you might as well let your DUI attorney do the leg work.
If you are arrested for a DUI in Elk Grove, the first thing you must do is schedule a DMV hearing. Once you are arrested your drivers license is set to automatically suspend 10 days from the date of your arrest. An attorney can easily schedule a hearing for you, which will result in a stay or a legal hold on the automatic suspension. A hearing date will be set some time in the future, and you will be allowed to drive at least until the results of your hearing are released. Hopefully you win the hearing and there is no suspension at all. If you lose the hearing, an experienced DUI attorney can advise you on how to successfully apply for a restricted license which will allow you to drive for work.
Once your DMV hearing has been scheduled, and the DMV is in contact with your attorney, your discovery will likely be sent out fairly quickly. Upon receiving the discovery, you and your attorney are now ready to meet and begin to formulate a plan. With the police reports in hand, an experienced DUI attorney will often be able to predict whether or not you are likely to fact a license suspension. IF you attorney thinks that a suspension is likely, it may be helpful to make preparations to deal with the 30 days of “hard” suspension. This is especially true if you are required to drive for your job, or if you live a long distance from your work. Similarly, you may want to begin making preparations to get a restricted drivers license to allow you to drive for work. This will require signing up for the appropriate alcohol class and obtaining SR-22 insurance. These are all confusing matters that will make you happy you have an attorney guiding you on. For example, you will want to make sure you get into the correct class the first time, so as no to wast time and money.
After making a plan with respect to your drivers license, you should begin working with your attorney on a plan for how to defend against the DUI charges in court. Carefully review the police reports with your attorney. Work together to discover any inconstancies between what the officers report says, and what you recall. Discuss with your attorney whether a suppression motion is advisable. Finally, make plans to prepare for a jury trial if that is what you attorney recommends. If the case is going to go to a jury trial, it is never too soon to begin to prepare.
Someone made the comment to me at dinner the other night, that for as long as I have been handling criminal defense cases in Sacramento, I ought to have it down to a science. I politely laughed when they said that. I think they meant it as a compliment, but I was not totally comfortable with the comment, as it seemed to suggest that at this point my job should be easy due to my experience and the repetition. However, I know that my job is very difficult. It never gets easy. I feel like I am constantly in a battle for the lives of my clients.
Since that evening, I have thought about that statement and I have come to the realization that criminal defense is much more like an art than a science. Good criminal defense requires me to be creative, to think outside the box, and to be passionate–Much like an artist and nothing like a scientist. Likewise, there is very little certainty in criminal defense as even laws that are well established are subject to interpretation and modification.
For example, when I am in trial, trying to describe the concept of reasonable doubt to a jury, there is no exact science to it. I am trying to read the faces and body language of the jury, and then respond to that to know when I have said enough, or to know when I need to keep painting the picture. Likewise, as I create a picture of my client, which I believe is most accurate, I am literally creating a picture for the jury like an artist creates a movie or a painting.
Earlier this week I enjoyed a tremendous victory in which I secured a misdemeanor plea bargain for a client who was facing serious felony charges. This client is a hunter and if he was convicted of a felony he would have lost his right to possess guns. This was an extremely challenging case which required some serious creativity on my part including seeking out knowledgeable professionals and experts on the topic to weigh in, which caught the District Attorney off guard. While me approach was not scientific and not orthodox, it worked.
The more I think about it, the more I suppose that it is a good thing that criminal defense is more like an art than a science. While science seems cold and passionless, my approach to my profession is one of caring, creativity, and passion. That is what makes me effective.
Proposition 47 is a fantastic new law in the State of California that was voted into law in the November 5th 2014 state election. Proposition 47 is a very important new law for those who either have been, or will be, prosecuted for certain listed crimes (previously felonies), as those felonies are now misdemeanors.
The following is a list of crimes that were reduced to misdemeanors, in many instances, under proposition 47:
Shoplifting (under $950) Previously charged as Burglary (PC 459)
Forgery (PC 473)
Passing a Bad Check for $950 or less (PC 476a)
Grand Theft Under $950 (PC 487)
Petty Theft with a Prior Petty Theft Conviction (PC 666)
Receiving Stolen Property worth $950 or less (PC 496)
Possession of a Controlled Substance HS 11350
Possession of Concentrated Cannabis HS 11357
Possession of Methamphetamine HS 11377
One of the best features of the new law called Proposition 47, is that it allows for the retroactive modification of a sentence that included a felony conviction that would have been a misdemeanor had proposition 47 been the law at the time of sentencing.
We have already had a client released from Jail due to this new law, and many others will follow.
Proposition 47 Results in Sacramento Inmates Being Released from Jail
Many individuals are serving considerable time in jail or prison for small crimes. For example, we had a client released from jail who had been convicted of a previous strike. That client was later charged with possession of a very small amount of methamphetamine and was charged with a felony violation of HS 1377. Prior to the passage of proposition 47 our client was facing 32 months in state prison for possession of a small amount of drugs (Think of the expense to the state of California to house him in prison for 32 months for such a minor crime). Two days after the passage of Proposition 47 our client was released from jail. His charge is now a misdemeanor and it is unlikely that he will serve jail time.
The applicable section of the code reads:
“SEC. 14. Section 1170.18 is added to the Penal Code, to read:
1170.18. (a) A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (“this act”) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with Sections 11350, 11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, as those sections have been amended or added by this act.”
Another great feature of proposition 47 is that it allows for individuals with felony convictions on their records to have their conviction modified retroactively to reflect a misdemeanor conviction instead of a felony conviction.
Proposition 47 is a brand new law. However it is one of the best and most powerful laws passed in decades in California given the impact it can have on people’s lives. We are currently helping a client who is in State Prison who will be released soon as a result of this law. We have already gotten one of our clients out of jail bases on Proposition 47. Very few other attorneys understand this law, or know how to use it. We do! We have studied every word of Proposition 47 and we are excited to save defendants charged with petty felonies get those charges reduced to felonies. Call us today. We can help you.
A large number of the criminal cases handled in the Sacramento Courthouse daily are drug cases. I have spent my career keeping clients charged with drug crimes out of jail and state prison. For many possession of controlled substance charges I can work out jail alternatives including drug diversion. When the sale of drugs is alleged, a tough defense strategy may be required to avoid jail time. If you are being charged with a drug charge in Sacramento call me today.
California law makers have made some efforts towards a policy of allowing some non-violent drug offenders to stay out of jail and get the treatment they need. There are two primary programs that are sometimes available to people charged with drug crimes. These are Prop. 36 and PC 1000. Under these laws some people charged with drug crimes may be able to avoid jail, get treatment, and sometimes have their charges dismissed. Please do not assume you can just walk into court and sign up for one of these programs. If you are facing drug charges you will want an aggressive and experienced drug defense attorney in court fighting for you. Give me a call. I can help you.
As painful as is it can be to be prosecuted and convicted of DUI even once, some people will have it happen multiple times in their life. Each time you are convicted of a DUI, that offense becomes a potential prior DUI to aggravate the sentencing should you be convicted for anther DUI later. As a Sacramento DUI attorney, I am frequently asked how long it takes before a DUI conviction is so old that it does not count as a “prior” DUI for the purposes of DUI sentencing.
California Vehicle Code Section 23540 Reads in part:
” If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail….”
This code section goes on to list the various combinations of sentences that might follow a subsequent conviction. However the two most important words in the code section above are that an “offense” must have occurred within 10 years. This means the time starts ticking on the day you are arrested for a DUI, not the day you are convicted.
For example, I just had a client who was arrested for a DUI in August 2004. He was not convicted until November 2004. However, in September 2014 this client was arrested for a DUI again. So the question became, is this 2014 DUI a “second DUI” for purposes of sentencing, or is it a “first DUI” meaning was it more than 10 years old? The answer to this question is that the date of the actual offense, NOT the date of the conviction is what counts. Therefore his 2014 DUI will be treated like a “first DUI” by the district attorney and the court.
The other key word in California vehicle code section 23540 is the word “separate”. This is important in that it implies that a DUI offense need not precede another offense in order to be considered a prior. For example, suppose hypothetical defendant John is arrested for a DUI in Sacramento California in January 2014, but the court is slow to prosecute him. Further suppose that John is arrested for a DUI in West Sacramento ( this is Yolo county, not Sacramento county) in February 2014. If the court in Yolo County prosecutes John faster than the court in Sacramento then it is possible for John’s February DUI to be a “prior DUI” for purposes of his sentencing on his DUI in Sacramento, even though the Sacramento DUI happened first.
Of course, with help of an experienced Sacramento DUI Attorney, it is possible John can avoid conviction all together.
California Vehicle Code Section 23612 Reads:
“(a) (1) (A) A person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or her
blood or breath for the purpose of determining the alcoholic content
of his or her blood, if lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153.”
This is what is referred to as “implied consent.” That is, the California Legislature has declared that by driving on the roads of California you have impliedly consented to give a blood or breath sample upon request by a law enforcement officer following a lawful DUI arrest.
California Vehicle Code Section 23577 Reads:
“23577. (a) If any person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612, the court shall impose the following penalties:
If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.
(b) The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and proven.”
This section of the California Vehicle code establishes the law that refusing to submit to a chemical test triggers a sentencing enhancement that if pleaded and proved (or admitted to) triggers additional punishments including added jail time for those convicted of a DUI. Any experienced Sacramento DUI attorney will tell you that the District Attorneys in Sacramento are particularly aggressive when it comes to refusal DUI cases.
Often times, as part of the DUI investigation, and prior to a law enforcement officer making an arrest, the officer will ask if you want to blow into a Preliminary Alcohol Screening Device. This is a device that like a “breathalyzer” measures blood alcohol concentration. This test is not considered a “chemical test” as the term is used in section 23577, nor a valid test for purposes of formal evidence in court, but it helps the officer determine whether a person is over the legal limit and therefore whether they should be arrested. The “implied consent” law does not apply to the PAS and thus refusing the PAS does not trigger increased punishment upon conviction for DUI. Thus, you can refuse the PAS if you would like, but you cannot refuse the chemical test without incurring additional criminal liability.
The Danger in trying to refuse the PAS only, is that you may not be able to accurately distinguish between the PAS and the Chemical test. Further, I am distrustful of police officers and their ability to make it clear which test they are asking for, much less their willingness to tell the truth about which test you refused. Therefore, it is risky business to plan to refuse to the PAS while consenting to the chemical test, unless you are sure you know which is which. As a Sacramento DUI attorney I have had clients charged with DUI refusals, in Sacramento Court, who though they were within their rights to refuse a test because they either go the “Chemical test” and the PAS mixed up or the officer lied about which test they refused.
If you refuse a chemical test as part of a first DUI investigation then your drivers license will be suspended for a year. For most people this is way worse than the added jail time. If it is a second DUI or greater, within the last 10 years, then the suspension for a refusal will be two or more years. OUCH!!
In 2013 the United States Supreme court made a seminal decision relating to DUI cases in the case of Missouri Vs. Mcneely. In McNeely, the Supreme Court determined that in general a warrant is required for a forced blood draw. Therefore, if you do not consent to a blood draw upon the request of an officer incident to your arrest for DUI, then the officer MUST get a warrant from a judge in order to lawfully force a blood draw, or the officer must establish some other form of exigent circumstances that would otherwise justify having the blood drawn without a warrant.
In other, words the Supreme Court ruled that in general it is a violation of your 4th Amendment right against unreasonable search and seizure to force a blood draw without a warrant. Thus, Sacramento law enforcement officers will often get a warrant prior to forcing a blood draw. If they do not, then a skilled and experienced Sacramento DUI Attorney may be able to have the evidence obtained by the warrantless forced blood-draw suppressed at trial.
1. California states that driving in California equates to implied consent to submit to a chemical test incident to a DUI arrest.
2. Refusing to submit to a chemical test, if pleaded and proven, triggers enhanced penalties including a one year suspension of your drivers license for first time DUI’s and longer if it is a second DUI or greater within 10 years.
3. You can refuse a Preliminary Alcohol Screening but not a Chemical Test, but this can be risky for reasons explained above.
4. In 2013 The United States Supreme Court ruled that when an individual refuses to submit to a blood draw for purposes of a DUI investigation, then the police must get a warrant prior to performing a forced blood draw. This does not mean the police need a warrant to ask for a blood draw. Further, consenting to a blood draw does away with the necessity of a warrant.
For many who are arrested and charged for DUI in California it feels like you are being falsely accused. Many people we speak to us about their DUI case report sincerely that they did not feel intoxicated.
What you should do if you are being charged with a DUI?
What are your options if you feel like you are not guilty of the charges?
What are your options if you do think you are guilty?
Can DUI charges be effectively defended against?
The simply answer to this question is “YES.” Below is some information on DUI Defense strategies.
There are Three primary ways to defend against DUI charges. These are:
1. Suppression of the Evidence
2. Disprove an Element of the Offense or Establish Reasonable Doubt as to one of the elements.
3.Establlish a Legal Defenses
One of the ways that DUI cases can be defended against are through suppression motions. Under the United State Constitution certain rights such as the right against unreasonable search and seizure (4th Amendment) and the right against self-incrimination (5th Amendment) apply directly to many DUI cases. In many instances, law enforcement violate these important constitutional rights during the course of a DUI investigation and arrest. The remedy for such a violation is that the judge will suppress, exclude, or throw out the evidence that the police obtained as a result of this constitutional violation. Therefore, by having evidence that was critical to the prosecution’s case against you, thrown out, you can sometimes avoid a DUI conviction. This gets into some very technical and ever evolving aspects of the law. If one of the following applies to you, you may have a valid “suppression issue:
1. If you think you were stopped or arrested without probable cause.
2. If the police officer never saw you drive.
3. If you believe your confessions are being used against you.
4. If you refused a blood test, and the police forced a blood draw without your consent, without first obtaining a warrant.
If one of the four scenarios listed above applies to you then please contact us immediately for a FREE case evaluation at (916) 277-8299.
The district attorney in a DUI case carries the burden of proving each element of the crime Essentially the District Attorney must establish that you were:
1. Driving a Motor Vehicle
2. Driving While Simultaneously impaired by Alcohol or Drugs, or both.
If you can disprove one of these elements, or if you can successfully raise reasonable doubt as to the reality of one of these elements then the district attorney will have failed to make his case and you should avoid a conviction.
Given this, there a few ways to defend against a DUI charge including:
1. Establish that you were not driving, or establish reasonable doubt as to whether you were driving.
2. Establish that you were not under the influence, or impaired, or establish reasonable doubt as to whether you are impaired.
3. Establish that impairment and driving did not coincide, or raise doubt that you were simultaneously driving while impaired.
The type of defense listed under number one above is what is commonly referred to by DUI Attorneys as the “No Drive Defense.” Anytime a DUI investigation begins with a situation in which the police officer did not see you driving, or actually pull you over (for example you are found sleeping in your parked car) then the facts should be analyzed to determine whether or not it can be proved that you were ever driving the vehicle. If the district attorney cannot prove that you were driving the vehicle then they cannot make their case against you for a DUI conviction.
Number 2 above describes cases in which your defense is that you were not actually under the influence. A person is considered “under the influence” when as a result of drinking alcohol or taking some type of drug, or a combination of the two, his or her physical or mental abilities are impaired to such a degree that he or she no longer has the ability to drive the vehicle with caution characteristic of a sober person of ordinary prudence under similar circumstances.
In order to make a case that you were not under the influence you normally will need an expert to come to your trial to testify as to the physiological impact that might be expected given the results of your chemical test. So for example an expert may come and testify that the amount of marijuana or alcohol, or whatever, that was found in your blood was too little to render you legally impaired, or unable to drive wight he caution of a sober person under the same circumstances.
In some circumstances the district attorney may be able to establish driving, and he or she may also be able to establish impairment, but the district attorney may not be able to establish that these happened at the same time. Two common examples include the following: 1. In a case where the police find someone sleeping in their car and the person is intoxicated, even if the district attorney can prove that they drove at some point, and prove that they are intoxicated, the district attorney may have a hard time demonstrating that these events coincided. This is especially true if no time of driving can be established. Likewise, if alcohol was present in the car, it will be hard for the district attorney to prove that you did not drink while parked (possibly criminal but not a DUI) 2. There may be situations in which a persons BAC can be shown to have been rising at such rate that when the time of drinking, and driving, and the rate of the metabolization of the alcohol was such that an expert could show that it is not reasonable to believe that impairment existed at the time of driving, but only after the fact.
However, the law assists District Attorneys in making their case that you were impaired with Vehicle Code Section 23152(b) which triggers a legal inference for the jury that if you were given a chemical test within 3 hours of driving and the result of that indicates that your BAC was 0.08 or higher then the jury can (not required, but legally justified, if they so chose to draw the conclusion) legally infer that you were under the influence at the time you were driving.
I will not go into too much detail here as to the legal defenses that might exist in a DUI case as they are actually relatively rare in their application. But legal defenses such as duress or necessity would be valid defenses to a DUI. For example If you were robbed and then forced at gun point to drive, while you were intoxicated, the defense of duress would apply. Alternatively if you chose to drive a vehicle while you were already intoxicated for some greater purpose, such as to save someone’e life by driving them to a hospital, then the defense of necessity would apply.
An act committed by reason of a mistake of fact which disproves criminal inert is not a crime. Thus if a person is not guilty of a crime if he or she commits an act under and honest and reasonable belief in the existence of certain facts, which if true would make the act lawful. Thus it is possible for someone to have a reasonable, but mistaken, belief that their BAC was well below 0.08 and and for this to act a valid legal defense.
Also, double jeopardy principles would be a valid defense if someone was previously prosecuted for a DUI and was later charged again based on the same occurrence.
If you are being charged with a DUI you need representation. Call our office at (916) 277-8299. We defend individuals charged with DUI in Sacramento, Placer, Yolo, El Dorado, Sutter, Yuba, Butte, San Joaquin, and Solano Counties.
They stopped covering this case before the acquittal came in. But here are the results:
4 not guilty counts
1 count dismissed by the judge after defense motion
2 counts dismissed by the prosecutor after the jury verdict
This trial was a child abuse case in which my client was facing several years in jail for felony child abuse. The news article below was written with pro-prosecutor bias, so it is hard to tell from the article exactly what happened. I will tell you what happened. I beat the felony charges and my client avoided prison. My client was only convicted of one misdemeanor, that required probation but no jail time. It is difficult to tell from the article but this was a huge victory for my client. When I was leaving the courthouse that day, I saw the prosecutor in his car pounding on on his steering wheel. I guess he didn’t like losing.
One of the the great things about living in the River City is the boating culture in the summer time. In the summer the Sacramento and American rivers become a mecca for boaters and partiers. If you like to party and you like to boat, beware that you do not do both at the same time. Multiple arresting agencies patrol the rivers daily searching for individuals who are driving boats while under the influence. If you are ever charged with a BUI you should call me. I am an experienced BUI attorney. While there are only a handful of defense attorneys who are highly skilled at DUI’s in Sacramento, there are far less who are experienced in Boating under the influence charges. Do not trust your case to a novice. Call an experienced BUI attorney.
Under the California Harbors and Navigation Code Section 655, boating while under the influence of alcohol or drugs is criminalized as a misdemeanor and carries a penalty of up to six months in jail. This charge is similar to a DUI in many ways except that it does not carry the Driver’s License suspension penalties that are so common in DUI cases. That being said, BUI charges should not be taken lightly, especially in Sacramento. These charges carry penalties that include large fines, probation, alcohol classes, in addition to leaving one with a criminal record that can hurt your employ-ability or eligibility for professional licenses.
These cases are more common than you might think. The sheriff patrols the Sacramento River and also the American River aggressively particularly during the summer months. They are watching boats with their binoculars trying to find people who are drinking while driving a boat. Be safe out there.