On November 6, California voters passed the Three Strikes Reform Act. If you are currently charged with a California Penal Code offense, the new law provides that if you have two or more "Strikes," which are prior convictions for "Serious" or "Violent" felonies (as defined in the California Penal Code), you CANNOT receive a Three Strikes 25-years-to-life sentence unless the current felony is also a "Serious" or "Violent" felony.
That is the general rule for current cases, and there are exceptions. For example, if your prior conviction is for certain type of sex offenses, you may not be eligible for relief under this act. Also, if you current offense is a drug offense with a weight enhancement, even though it is not a Strike offense, you may also be sentenced as a Third Striker.
I have a great deal of experience in these matters, and I will be able to explain to you, if you are charged with a new crime and have two or more “Three Strike” prior convictions, how the new law will affect you.
Inmates in Custody
Most importantly, there are thousands of inmates in State Prison currently serving Three Strikes, 25 years-to-life sentences, where they had two or more prior Strike offenses, but the offense for which they were convicted was not a Strike offense. All of these inmates are eligible to petition the court to get released. However, the Three Strike Reform Act treats these inmates differently – in these cases, the court still has the discretion to keep the inmate in custody, if "in its discretion, determines that resentencing the inmate would pose an unreasonable risk of danger to public safety."
To that end, the court is to consider the inmate's criminal conviction history, including the types of crime committed, injury to the victims, the length of the prior prison commitment, remoteness, the inmate disciplinary record while in prison, his record of rehabilitation, and any other evidence the court sees as relevant.
in other words, it is very import to choose a great lawyer, dedicated to getting the inmate released from custody, as it is a labor intensive and complicated process, as a slew of materials must be gathered that put the inmate in the best possible light before the court, including support letters, old police reports, and prison records.
As this is the last and only chance to get the inmate out from under a Three Strikes life sentence, I will take the time to meet with family members and explain the process, and I will meet with the inmate in State Prison, to expedite the process, and get the case before the court at the earliest opportunity.
Saturday, December 1, 2012
Wednesday, August 22, 2012
The State Supreme Court Review Process
You lost in the state appellate court. Most likely it was an appeal from a court or jury trial. You have but one option left - a petition for review to the California Supreme Court. You are anxious because Supreme Court review is discretionary, and the Court accepts only a fraction of the petitions it receives. You want to maximize your chances of getting your petition granted, because a denial means your case is effectively over.
I am a former state Supreme Court staff attorney, and I have read and reviewed thousands of petitions. I will lay out the nuts and bolts of the petition for review, tell you what happens after it arrives in the Court, and give you some basic tips for good petition writing. I hope to give you insight into how to differentiate your petition from the thousands of petitions the Court receives annually.
With the exception of death penalty cases, review of cases by the Supreme Court is a matter of discretion. California Rule of Court 8.500(b)(1) states the primary ground for Supreme Court review: "When necessary to secure uniformity of decisions or to settle an important question of law." What does that phrase mean for you as the petition writer? Here is the two-part short answer: The Court is keen to accept a case where there is a published, and to a lesser extent, unpublished conflict in the state appellate court; and/or the case presents an issue of "statewide importance."
Rule 8.504 governs the content of your petition. For example, the petition must contain a nonargumentative statement of the issues; state why the case is significant under Rule 8.500(b); and state whether a petition for rehearing was filed in the appellate court and, if so, how the court ruled.
The petition must not exceed 8,400 words; if it does, you must make an application to the chief justice for a longer petition. The tables required by Rule 8.204(a)(1) and 8.204(b)(10) do not count against word length, and you may attach an exhibit you consider "unusually significant" and/or a relevant statute "not readily accessible," but such attachments cannot exceed 10 pages.
Finally, under Rule 8.500(c), the Supreme Court normally will only consider an issue timely raised in the appellate court; and will only accept the appellate court's statement of facts unless the petitioner has called attention to any alleged misstatement of an issue or fact in a rehearing petition.
In getting your case heard, first impressions count.
When a petition for review is received, it is scheduled for conference, and the central staff prepares a conference memorandum: civil petitions are sent to the director of the civil central staff, and are assigned to one of its 15 attorneys; criminal petitions are sent to the director of the criminal central staff and are assigned to one of its 20 attorneys.
The central staff's conference memorandum is designed to assist the Court in determining whether a case is appropriate for review. The memorandum summarizes the case's facts, procedural history, parties' arguments, and merits, and most importantly, the author of the memorandum makes a recommendation to the justices as to whether the case is sufficiently important for Court review.
This last function is vital because the central staff author's recommendation dictates the level of scrutiny the petition will receive at the justices' weekly Wednesday conference. Specifically, the conference memorandum's author assigns the case to either the "A" list or "B" list. While the Court may review up to 250 cases per week, only 20-30 cases will be on the "A" list. Cases assigned to the "B" list concern routine matters, or the application of settled law, and rarely, if ever, are accepted for review. The Court processes over 6,000 petitions for review annually, and authors approximately 110-120 opinions per year. Only one "B" list case was accepted for review in my three years on the Court.
An "A" list conference memorandum will generally have one of the following designations: "grant"; "grant and hold"; "grant and transfer"; "deny"; "submitted"; "denial submitted"; and "deny and depublish." The designation "submitted" indicates the central staff attorney believes the petition warrants special consideration. "Denial submitted" indicates the central staff attorney believes the petition should be denied, but still warrants special consideration Regarding depublication, the recent Court trend is to utilize the depublication option only in unusual circumstances.
Conference memoranda are distributed one week prior to the conference, and the chief of staff of each chamber divides the memoranda among staff attorneys. Each associate justice has five staff attorneys; the chief justice has seven. Staff attorneys are typically seasoned appellate attorneys who have been with their particular justice for several years. Only the justices attend the weekly conference. Four justices must agree in order for a case to be accepted for review. However, where three justices vote for a case to be accepted, often a fourth justice will join the three to ensure the case is accepted.
After a case is accepted, the chief justice assigns it to one of the justices who voted to grant review. That justice then prepares within the Court a "calendar memorandum," which is essentially a draft opinion. The calendar memorandum is distributed to the other justices who prepare a "preliminary response," indicating whether they concur, concur with reservations, are doubtful, or dissent. Preliminary responses typically suggest changes to the calendar memorandum, and the response may be as simple as a one-word "concur," or be as long as the calendar memorandum itself. The responding justice will also indicate whether he or she is intending to author a separate opinion.
Once all the preliminary responses are received, the authoring justice decides whether to incorporate any of the suggested changes into a revised calendar memorandum. If the revised calendar receives a majority of concurrences, it is scheduled for oral argument. If not, and the author is unwilling to accommodate the majority, the chief justice resets the matter or reassigns it to a dissenting justice. If the case is reassigned, once the new justice prepares a calendar memorandum and obtains a majority, the case is set for oral argument. The Court hears oral argument during the first week of each month from September through June. Each side has 30 minutes to present its case. In death penalty cases, oral argument may be extended to 45 minutes.
After oral argument, the case is discussed at the Court's private conference, and if a majority of the justices still agree with the recommendation of the justice who authored the calendar memorandum, that justice drafts a proposed majority opinion. In the rare event the majority view is now contrary to that of the calendar memorandum, the authoring justice must make changes reflecting the views of the new majority or the case is reassigned. This too happened only once in my three years on the Court.
In getting your case heard, first impressions count. Remember, given the gatekeeping function the central staff attorneys perform, you are writing to one attorney who will review your petition and assign it an "A" or "B" grade. That attorney brings his or her personality, skills, strengths, and weaknesses to your petition. You will never know that attorney's identity, but know this - you must differentiate your petition from the dozens of others he or she reviews weekly, which is best accomplished by presenting a compelling "Question Presented," and a compelling statement explaining why your matter is worthy of review. Once you have grabbed the staff attorney's attention, a concise statement of facts along with a well organized and reasoned legal discussion finishes the job. The best petitions for review rarely approach the 8,400 word limit. You must get on the "A" list to get any traction.
There is no magic formula that can assure your case will be accepted for review. Most cases do not blaze a new law trail, result in appellate court conflict, or present issues of statewide importance. But if your case has a chance, you now know how your matter will be treated, the hoops it will go through, and you have some basic tips for maximizing your chances of success.
Good luck.
I am a former state Supreme Court staff attorney, and I have read and reviewed thousands of petitions. I will lay out the nuts and bolts of the petition for review, tell you what happens after it arrives in the Court, and give you some basic tips for good petition writing. I hope to give you insight into how to differentiate your petition from the thousands of petitions the Court receives annually.
With the exception of death penalty cases, review of cases by the Supreme Court is a matter of discretion. California Rule of Court 8.500(b)(1) states the primary ground for Supreme Court review: "When necessary to secure uniformity of decisions or to settle an important question of law." What does that phrase mean for you as the petition writer? Here is the two-part short answer: The Court is keen to accept a case where there is a published, and to a lesser extent, unpublished conflict in the state appellate court; and/or the case presents an issue of "statewide importance."
Rule 8.504 governs the content of your petition. For example, the petition must contain a nonargumentative statement of the issues; state why the case is significant under Rule 8.500(b); and state whether a petition for rehearing was filed in the appellate court and, if so, how the court ruled.
The petition must not exceed 8,400 words; if it does, you must make an application to the chief justice for a longer petition. The tables required by Rule 8.204(a)(1) and 8.204(b)(10) do not count against word length, and you may attach an exhibit you consider "unusually significant" and/or a relevant statute "not readily accessible," but such attachments cannot exceed 10 pages.
Finally, under Rule 8.500(c), the Supreme Court normally will only consider an issue timely raised in the appellate court; and will only accept the appellate court's statement of facts unless the petitioner has called attention to any alleged misstatement of an issue or fact in a rehearing petition.
In getting your case heard, first impressions count.
When a petition for review is received, it is scheduled for conference, and the central staff prepares a conference memorandum: civil petitions are sent to the director of the civil central staff, and are assigned to one of its 15 attorneys; criminal petitions are sent to the director of the criminal central staff and are assigned to one of its 20 attorneys.
The central staff's conference memorandum is designed to assist the Court in determining whether a case is appropriate for review. The memorandum summarizes the case's facts, procedural history, parties' arguments, and merits, and most importantly, the author of the memorandum makes a recommendation to the justices as to whether the case is sufficiently important for Court review.
This last function is vital because the central staff author's recommendation dictates the level of scrutiny the petition will receive at the justices' weekly Wednesday conference. Specifically, the conference memorandum's author assigns the case to either the "A" list or "B" list. While the Court may review up to 250 cases per week, only 20-30 cases will be on the "A" list. Cases assigned to the "B" list concern routine matters, or the application of settled law, and rarely, if ever, are accepted for review. The Court processes over 6,000 petitions for review annually, and authors approximately 110-120 opinions per year. Only one "B" list case was accepted for review in my three years on the Court.
An "A" list conference memorandum will generally have one of the following designations: "grant"; "grant and hold"; "grant and transfer"; "deny"; "submitted"; "denial submitted"; and "deny and depublish." The designation "submitted" indicates the central staff attorney believes the petition warrants special consideration. "Denial submitted" indicates the central staff attorney believes the petition should be denied, but still warrants special consideration Regarding depublication, the recent Court trend is to utilize the depublication option only in unusual circumstances.
Conference memoranda are distributed one week prior to the conference, and the chief of staff of each chamber divides the memoranda among staff attorneys. Each associate justice has five staff attorneys; the chief justice has seven. Staff attorneys are typically seasoned appellate attorneys who have been with their particular justice for several years. Only the justices attend the weekly conference. Four justices must agree in order for a case to be accepted for review. However, where three justices vote for a case to be accepted, often a fourth justice will join the three to ensure the case is accepted.
After a case is accepted, the chief justice assigns it to one of the justices who voted to grant review. That justice then prepares within the Court a "calendar memorandum," which is essentially a draft opinion. The calendar memorandum is distributed to the other justices who prepare a "preliminary response," indicating whether they concur, concur with reservations, are doubtful, or dissent. Preliminary responses typically suggest changes to the calendar memorandum, and the response may be as simple as a one-word "concur," or be as long as the calendar memorandum itself. The responding justice will also indicate whether he or she is intending to author a separate opinion.
Once all the preliminary responses are received, the authoring justice decides whether to incorporate any of the suggested changes into a revised calendar memorandum. If the revised calendar receives a majority of concurrences, it is scheduled for oral argument. If not, and the author is unwilling to accommodate the majority, the chief justice resets the matter or reassigns it to a dissenting justice. If the case is reassigned, once the new justice prepares a calendar memorandum and obtains a majority, the case is set for oral argument. The Court hears oral argument during the first week of each month from September through June. Each side has 30 minutes to present its case. In death penalty cases, oral argument may be extended to 45 minutes.
After oral argument, the case is discussed at the Court's private conference, and if a majority of the justices still agree with the recommendation of the justice who authored the calendar memorandum, that justice drafts a proposed majority opinion. In the rare event the majority view is now contrary to that of the calendar memorandum, the authoring justice must make changes reflecting the views of the new majority or the case is reassigned. This too happened only once in my three years on the Court.
In getting your case heard, first impressions count. Remember, given the gatekeeping function the central staff attorneys perform, you are writing to one attorney who will review your petition and assign it an "A" or "B" grade. That attorney brings his or her personality, skills, strengths, and weaknesses to your petition. You will never know that attorney's identity, but know this - you must differentiate your petition from the dozens of others he or she reviews weekly, which is best accomplished by presenting a compelling "Question Presented," and a compelling statement explaining why your matter is worthy of review. Once you have grabbed the staff attorney's attention, a concise statement of facts along with a well organized and reasoned legal discussion finishes the job. The best petitions for review rarely approach the 8,400 word limit. You must get on the "A" list to get any traction.
There is no magic formula that can assure your case will be accepted for review. Most cases do not blaze a new law trail, result in appellate court conflict, or present issues of statewide importance. But if your case has a chance, you now know how your matter will be treated, the hoops it will go through, and you have some basic tips for maximizing your chances of success.
Good luck.
Wednesday, August 15, 2012
California Victims: Know Your Rights!
Did you know that as a victim of crime, you have rights?
Did you know that with certain crimes you are entitled to know all court dates, and are entitled to have input into case settlement decisions?? Did you know that with certain assaultive crimes, you do not have to cooperate at all?
Did you know that as a victim of crime who has suffered economic loss, you are entitled victim restitution -- a money judgment against the defendant that is not dischargeable in bankruptcy?
Marsy's Law, or the Victim's Bill of Rights, gives victims many rights -- rights most people don't know about, but should know about -- that knowledge puts you, the victim, in a position of awareness and allows you to stay on top of what is likely a very difficult situation.
And as a victim, your goals may be different than the prosecutor's goals, or the defense attorney's goals; you may have you own ideas on what should be done and because of Marsy's Law you now have the right to be heard. In fact, you may be surprised to know that California has an agency that deals solely with claims made by victims for money due to injuries suffered as a result of criminal conduct.
Witnesses have rights, too, and your goals as a witness to a crime too may be different that the prosecutor's or defense attorney's goals in your case.
As a former prosecutor and now defense attorney, I can definitely tell you that if you want to be truly heard, it is better to have your own attorney speak for you, as your point of view will be taken very seriously.
And becasue of my background and training, I see the issues from both sides, and am uniquely able to help you in this time of need -- whether it is handling a subpoena, being heard as to a plea bargain, or getting the maximum amount of money you are entitled to under California law.
Did you know that with certain crimes you are entitled to know all court dates, and are entitled to have input into case settlement decisions?? Did you know that with certain assaultive crimes, you do not have to cooperate at all?
Did you know that as a victim of crime who has suffered economic loss, you are entitled victim restitution -- a money judgment against the defendant that is not dischargeable in bankruptcy?
Marsy's Law, or the Victim's Bill of Rights, gives victims many rights -- rights most people don't know about, but should know about -- that knowledge puts you, the victim, in a position of awareness and allows you to stay on top of what is likely a very difficult situation.
And as a victim, your goals may be different than the prosecutor's goals, or the defense attorney's goals; you may have you own ideas on what should be done and because of Marsy's Law you now have the right to be heard. In fact, you may be surprised to know that California has an agency that deals solely with claims made by victims for money due to injuries suffered as a result of criminal conduct.
Witnesses have rights, too, and your goals as a witness to a crime too may be different that the prosecutor's or defense attorney's goals in your case.
As a former prosecutor and now defense attorney, I can definitely tell you that if you want to be truly heard, it is better to have your own attorney speak for you, as your point of view will be taken very seriously.
And becasue of my background and training, I see the issues from both sides, and am uniquely able to help you in this time of need -- whether it is handling a subpoena, being heard as to a plea bargain, or getting the maximum amount of money you are entitled to under California law.
Wednesday, August 8, 2012
Stealing a $1.00 Can Be a Felony
Did you know that if a politician embezzles even $1.00 that it is a
felony that can be prosecuted years later as there is no statute of
limitations?
Yes, you read that right. Stealing even a single dollar can be a felony. Of course you are probably saying to yourself, 'that has got to be impossible... how on earth could it possibly be true?'
It's quite simple: Political Corruption.
Pretty amazing actually, but anyone who is charged in crimes of political corruption need to know the facts when it comes to issues the very significant issues involved – including possible sentences mandated for such crimes. There are a few other things that also make crimes of Political Corruption particularly ominous too.
Many people involved in crimes of political corruption do not know that the charges leveled against them are likely to be very serious and often mandate that jail time be served in state prison? They also likely do not know that these cases are vertically prosecuted by a staff of prosecutors who specialize in such cases, and are very good at it.
Of course some of the more important issues involved in such cases require legal specialists who are familiar in this territory and represent clients who have been accused of various forms of political corruption. Someone who knows the rules and how they apply, be it embezzlement or other political crimes.
Many people do not know that even before you speak to law enforcement in the investigatory phase, you have the right to a lawyer and should contact one – before you ever speak to anyone.
Did you know that it is often better to address the issues head on with an attorney and not wait as it will put you in a stronger legal position?
I represent several local politicians who have been accused of crimes against the public trust, such as embezzlement of public funds, misappropriation, fraud, and violation of election laws. These cases are complicated, as they are accompanied by thousands of pages of documents, and require diligence, resourcefulness, and an ability to spot hidden weaknesses in the case. As a former prosecutor and Supreme Court staff attorney, I am uniquely suited to help you in these cases.
If you are being investigated by the Los Angeles County District Attorney's Office, or another law enforcement arm of the State, or you have been charged, you need to know your legal options, and you need to have the best representation possible, and you need to do it now.
Yes, you read that right. Stealing even a single dollar can be a felony. Of course you are probably saying to yourself, 'that has got to be impossible... how on earth could it possibly be true?'
It's quite simple: Political Corruption.
Pretty amazing actually, but anyone who is charged in crimes of political corruption need to know the facts when it comes to issues the very significant issues involved – including possible sentences mandated for such crimes. There are a few other things that also make crimes of Political Corruption particularly ominous too.
Many people involved in crimes of political corruption do not know that the charges leveled against them are likely to be very serious and often mandate that jail time be served in state prison? They also likely do not know that these cases are vertically prosecuted by a staff of prosecutors who specialize in such cases, and are very good at it.
Of course some of the more important issues involved in such cases require legal specialists who are familiar in this territory and represent clients who have been accused of various forms of political corruption. Someone who knows the rules and how they apply, be it embezzlement or other political crimes.
Many people do not know that even before you speak to law enforcement in the investigatory phase, you have the right to a lawyer and should contact one – before you ever speak to anyone.
Did you know that it is often better to address the issues head on with an attorney and not wait as it will put you in a stronger legal position?
I represent several local politicians who have been accused of crimes against the public trust, such as embezzlement of public funds, misappropriation, fraud, and violation of election laws. These cases are complicated, as they are accompanied by thousands of pages of documents, and require diligence, resourcefulness, and an ability to spot hidden weaknesses in the case. As a former prosecutor and Supreme Court staff attorney, I am uniquely suited to help you in these cases.
If you are being investigated by the Los Angeles County District Attorney's Office, or another law enforcement arm of the State, or you have been charged, you need to know your legal options, and you need to have the best representation possible, and you need to do it now.
Friday, August 3, 2012
Misdemeanor and Felony Crimes: Some Advice
If you have been
arrested for a misdemeanor or felony (other than DUI), the first piece of
advice I have is this. DO NOT TALK TO THE POLICE! It never helps. They
seek only to get incriminating information. Your natural inclination is
to talk. DON'T.
You will be given bail and the right to make a phone call. Call your lawyer to arrange bail. Lawyers typically work with reputable bail bondsmen. Your family will not make such a wise choice, and the next thing you know, the bail bondsman owns your mother's home. It is better to have a lawyer arrange bail than you yourself or your family. Your lawyer will likely get a better rate, and you personally will get better service. The bail bond company I work with is top-notch and open 24 hours a day, every day.
If you are charged with a misdemeanor or felony, it is best to hire a lawyer. There may be immigration consequences if you are a non-citizen, and typically you will get a better result if you have a lawyer fighting for your rights. Each case is different because each fact pattern is different. I offer a free consultation and will help you make the right choice.
Men who have been arrested for a sex crime, whether it is statutory rape, date rape, sexual battery, or forcible rape, will face aggressive prosecution from law enforcement and district attorneys. All sex crime charges are taken very seriously by the State of California, especially if the sexual offense involved a victim who was under 18 years old. If the victim is under 14 years old, you are in very serious trouble and are likely looking at life in prison.
If you are accused of a sex crime, it is important that you immediately speak with an experienced criminal defense attorney. Even if you are innocent, you will need advice and direction from a lawyer who has successfully represented clients who have been accused of a sex crime. Without such guidance, you will have a difficult time contesting the criminal charges.
Sex crime cases demand an extensive evaluation of the facts, in-depth interviews of the accuser and witnesses, analysis of forensic evidence, and complicated stereotypes must be addressed. Men especially are behind the eight-ball when charged with a sex crime. With the help of an experienced attorney, you stand a better chance of fighting your charges both in and out of court.
You will be given bail and the right to make a phone call. Call your lawyer to arrange bail. Lawyers typically work with reputable bail bondsmen. Your family will not make such a wise choice, and the next thing you know, the bail bondsman owns your mother's home. It is better to have a lawyer arrange bail than you yourself or your family. Your lawyer will likely get a better rate, and you personally will get better service. The bail bond company I work with is top-notch and open 24 hours a day, every day.
If you are charged with a misdemeanor or felony, it is best to hire a lawyer. There may be immigration consequences if you are a non-citizen, and typically you will get a better result if you have a lawyer fighting for your rights. Each case is different because each fact pattern is different. I offer a free consultation and will help you make the right choice.
Men who have been arrested for a sex crime, whether it is statutory rape, date rape, sexual battery, or forcible rape, will face aggressive prosecution from law enforcement and district attorneys. All sex crime charges are taken very seriously by the State of California, especially if the sexual offense involved a victim who was under 18 years old. If the victim is under 14 years old, you are in very serious trouble and are likely looking at life in prison.
If you are accused of a sex crime, it is important that you immediately speak with an experienced criminal defense attorney. Even if you are innocent, you will need advice and direction from a lawyer who has successfully represented clients who have been accused of a sex crime. Without such guidance, you will have a difficult time contesting the criminal charges.
Sex crime cases demand an extensive evaluation of the facts, in-depth interviews of the accuser and witnesses, analysis of forensic evidence, and complicated stereotypes must be addressed. Men especially are behind the eight-ball when charged with a sex crime. With the help of an experienced attorney, you stand a better chance of fighting your charges both in and out of court.
Wednesday, July 18, 2012
Surviving Driving Under the Influence (DUI)
Ok, you've been pulled over by a police officer and you have
been drinking. What do you do? This is a tough question, and different
lawyers will give you different answers.
In California, there are two things the State must prove to convict someone of a DUI. It must prove that you were driving and that you were driving under the influence of alcohol or drugs. You cannot legally drive in California if your blood-alcohol concentration (BAC) exceeds 0.08% or if you are under the influence of drugs, or a combination of the two. If you are involved in the situation where proof of YOU driving is an issue (such as where a police officer rolls up after an accident), be cooperative but NEVER admit driving.
More common is the situation where the officer sees you driving and you are pulled over. At the point you are pulled over, you are NOT under arrest, so your "Miranda" right to remain silent does not apply. Instead, the officer has every right to ask you questions as part of his ongoing investigation. Every police report will state you have bloodshot and watery eyes, the smell of alcohol on your breath, and slurred speech - which the officer will observe before you even get out of the car. More likely than not, the officer will also have observed bad driving. Frankly, he has already decided to arrest you, but he is still entitled to ask you questions and perform field sobriety tests (FSTs) at the scene.
Here is a tip: keep strong-flavored foil wrapped gum (that pops out) within easy access; it may or may not mask your breath, and it can't hurt to try to take away one of the symptoms of drinking.
BETTER TIP: Go online and buy a portable breath tester (ALCOHAWK) and keep it in your car. They cost between $40.00 - $100.00 depending on the model, but could save you THOUSANDS of dollars and even time in prison. I have told this to hundreds of people: drinking and driving is the only way normally good people wind up in prison.
Think about it, if you drink, drive and kill someone, you will go to state prison, and maybe for the rest of your life. It happens all the time and, sadly, California state prisons are filled with drunk drivers. It is better to BUY A PORTABLE BREATH TESTER and test yourself before driving; if you are over the limit DON'T DRIVE.
Getting back to the more common scenario, just getting pulled over after drinking, the key question from the officer you will have to answer is "have you been drinking?" It is likely a no-win situation. If you admit to drinking, whether it is "Officer, I had one, two or three drinks," the officer will assume you have had more. If you have had a few and admit to "no drinking," but smell like a liquor store, the officer will assume you are a liar. But if you truly think you are under the limit, and are confident that there is no discernible odor of alcohol on your breath, my advice is not to admit to drinking as that answer is the lesser of two evils. Here is a CHP drink chart guide that will allow you to better judge whether or not you are over or under the limit:
These are rough estimates. AND REMEMBER THE FOLLOWING: martinis and mixed drinks, if free-poured, typically contain much more than 1.25 oz. of alcohol, so one martini with 3 oz. can put you over the limit; this chart assumes 1.25 oz of 80-proof liquor per drink. The chart also assumes 12 oz. 3.5% alcohol beers (think Budweiser or Coors), but ice beer (5.5%), malt liquor (7.0%), and certain specialty beers (9.0%) are stronger, so it will take fewer beers to put you over the limit; 16 and 20 oz. "pints" will also! And a typical wine glass pour is 6 oz. not 4 oz. as assumed in the chart. Be careful!!!!!!!!
In any event, whether or not you admit drinking, the officer will certainly follow up with FSTs. Put differently, if he asks you out of the car to do FSTs, you are likely going to be arrested.
There is no law that requires you to perform FSTs. However, if you refuse, you will surely go to jail. It takes a lot of nerve to refuse FSTs. If you are not that type of person, do the best you can. No matter how good you think you did, the police report will indicate that you could not follow directions and were unsteady.
WARNING: There is a portable breath test administered by the officer in the field called the PAS (Preliminary Alcohol Screening) test - you simply blow into a portable device at the scene. If you have been drinking, DO NOT AGREE TO TAKE THIS TEST. You have that choice in California. Just explain that you are happy to take a breath test at the station. This will likely piss off the officer, but he is not your friend anyway. But taking this test may preclude your attorney from asserting certain defenses for you at both the DMV hearing and at trial.
At the station, they will offer the choice of a breath or blood test. My advice is to take the breath test because it is less accurate than the blood test. However, some attorneys prefer that you submit to a blood test because it prevents the officer from knowing your blood alcohol level prior to writing the police report.
If you REFUSE to take either test, DMV will suspend your license for one year, pretty much a slam dunk. Refusing to take the test may or may not help you beat your case if you go to court. "May not" is the more likely scenario, so take the breath or blood test. However, if you are facing a second or third DUI, you may want to politely refuse any test.
Once you have been arrested and booked, you will be released. Two separate proceedings will be filed against you: an administrative proceeding (by DMV) and a legal proceeding (the court case). You should seek legal counsel right away, but if not, you must deal with the DMV aspect of your case immediately, because you have only 10 days to call the DMV Driver Safety Office to set up a hearing (there are 3 in Los Angeles County -- in Commerce, El Segundo and Van Nuys), or that right is lost and your license will be suspended. While it is not easy to win at a DMV hearing, good lawyers do win all the time.
For a first time DUI, DMV will suspend your license for 4 months, so it is better to win than take the bus, drive illegally or rely on friends. Get an experienced criminal defense attorney for your DMV hearing.
Next is the actual court case. Two things will happen: you will get an offer to a reduced charge, or you will not get an offer to a reduced charge. If it is the latter, you have to decide whether to go to trial or plea guilty or no contest to the charge. That decision is dependent on too many variables to fully discuss here, but here are a few for you to consider: (1) whether there was an illegal stop - a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law has been violated; (2) the FSTs can be attacked, whether because you have heath problems, there was bad weather, or bad administration of the tests themselves; (3) the breath test can be challenged on several bases - bad test, bad machine, bad administration of the test; and a good DUI scientific expert can refute many of the claims made by law enforcement regarding your BAC; (5) the police officer may be a bad witness; (6) two police officers may contradict each other; or (7) you have witnesses who can credibly testify on your behalf. This list is not exhaustive.
Again, talk to your attorney and he or she will lay out all of you options. If you do not have a criminal defense attorney, I am available for a free consultation.
In California, there are two things the State must prove to convict someone of a DUI. It must prove that you were driving and that you were driving under the influence of alcohol or drugs. You cannot legally drive in California if your blood-alcohol concentration (BAC) exceeds 0.08% or if you are under the influence of drugs, or a combination of the two. If you are involved in the situation where proof of YOU driving is an issue (such as where a police officer rolls up after an accident), be cooperative but NEVER admit driving.
More common is the situation where the officer sees you driving and you are pulled over. At the point you are pulled over, you are NOT under arrest, so your "Miranda" right to remain silent does not apply. Instead, the officer has every right to ask you questions as part of his ongoing investigation. Every police report will state you have bloodshot and watery eyes, the smell of alcohol on your breath, and slurred speech - which the officer will observe before you even get out of the car. More likely than not, the officer will also have observed bad driving. Frankly, he has already decided to arrest you, but he is still entitled to ask you questions and perform field sobriety tests (FSTs) at the scene.
Here is a tip: keep strong-flavored foil wrapped gum (that pops out) within easy access; it may or may not mask your breath, and it can't hurt to try to take away one of the symptoms of drinking.
BETTER TIP: Go online and buy a portable breath tester (ALCOHAWK) and keep it in your car. They cost between $40.00 - $100.00 depending on the model, but could save you THOUSANDS of dollars and even time in prison. I have told this to hundreds of people: drinking and driving is the only way normally good people wind up in prison.
Think about it, if you drink, drive and kill someone, you will go to state prison, and maybe for the rest of your life. It happens all the time and, sadly, California state prisons are filled with drunk drivers. It is better to BUY A PORTABLE BREATH TESTER and test yourself before driving; if you are over the limit DON'T DRIVE.
Getting back to the more common scenario, just getting pulled over after drinking, the key question from the officer you will have to answer is "have you been drinking?" It is likely a no-win situation. If you admit to drinking, whether it is "Officer, I had one, two or three drinks," the officer will assume you have had more. If you have had a few and admit to "no drinking," but smell like a liquor store, the officer will assume you are a liar. But if you truly think you are under the limit, and are confident that there is no discernible odor of alcohol on your breath, my advice is not to admit to drinking as that answer is the lesser of two evils. Here is a CHP drink chart guide that will allow you to better judge whether or not you are over or under the limit:
These are rough estimates. AND REMEMBER THE FOLLOWING: martinis and mixed drinks, if free-poured, typically contain much more than 1.25 oz. of alcohol, so one martini with 3 oz. can put you over the limit; this chart assumes 1.25 oz of 80-proof liquor per drink. The chart also assumes 12 oz. 3.5% alcohol beers (think Budweiser or Coors), but ice beer (5.5%), malt liquor (7.0%), and certain specialty beers (9.0%) are stronger, so it will take fewer beers to put you over the limit; 16 and 20 oz. "pints" will also! And a typical wine glass pour is 6 oz. not 4 oz. as assumed in the chart. Be careful!!!!!!!!
In any event, whether or not you admit drinking, the officer will certainly follow up with FSTs. Put differently, if he asks you out of the car to do FSTs, you are likely going to be arrested.
There is no law that requires you to perform FSTs. However, if you refuse, you will surely go to jail. It takes a lot of nerve to refuse FSTs. If you are not that type of person, do the best you can. No matter how good you think you did, the police report will indicate that you could not follow directions and were unsteady.
WARNING: There is a portable breath test administered by the officer in the field called the PAS (Preliminary Alcohol Screening) test - you simply blow into a portable device at the scene. If you have been drinking, DO NOT AGREE TO TAKE THIS TEST. You have that choice in California. Just explain that you are happy to take a breath test at the station. This will likely piss off the officer, but he is not your friend anyway. But taking this test may preclude your attorney from asserting certain defenses for you at both the DMV hearing and at trial.
At the station, they will offer the choice of a breath or blood test. My advice is to take the breath test because it is less accurate than the blood test. However, some attorneys prefer that you submit to a blood test because it prevents the officer from knowing your blood alcohol level prior to writing the police report.
If you REFUSE to take either test, DMV will suspend your license for one year, pretty much a slam dunk. Refusing to take the test may or may not help you beat your case if you go to court. "May not" is the more likely scenario, so take the breath or blood test. However, if you are facing a second or third DUI, you may want to politely refuse any test.
Once you have been arrested and booked, you will be released. Two separate proceedings will be filed against you: an administrative proceeding (by DMV) and a legal proceeding (the court case). You should seek legal counsel right away, but if not, you must deal with the DMV aspect of your case immediately, because you have only 10 days to call the DMV Driver Safety Office to set up a hearing (there are 3 in Los Angeles County -- in Commerce, El Segundo and Van Nuys), or that right is lost and your license will be suspended. While it is not easy to win at a DMV hearing, good lawyers do win all the time.
For a first time DUI, DMV will suspend your license for 4 months, so it is better to win than take the bus, drive illegally or rely on friends. Get an experienced criminal defense attorney for your DMV hearing.
Next is the actual court case. Two things will happen: you will get an offer to a reduced charge, or you will not get an offer to a reduced charge. If it is the latter, you have to decide whether to go to trial or plea guilty or no contest to the charge. That decision is dependent on too many variables to fully discuss here, but here are a few for you to consider: (1) whether there was an illegal stop - a driver cannot be stopped unless the officer has a reasonable and articulate basis to believe that a traffic law has been violated; (2) the FSTs can be attacked, whether because you have heath problems, there was bad weather, or bad administration of the tests themselves; (3) the breath test can be challenged on several bases - bad test, bad machine, bad administration of the test; and a good DUI scientific expert can refute many of the claims made by law enforcement regarding your BAC; (5) the police officer may be a bad witness; (6) two police officers may contradict each other; or (7) you have witnesses who can credibly testify on your behalf. This list is not exhaustive.
Again, talk to your attorney and he or she will lay out all of you options. If you do not have a criminal defense attorney, I am available for a free consultation.
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