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Typically, when you are sentenced, and your sentence includes probation, one of the things you are ordered to do is not violate the law. If you are arrested, the arrest itself is not a probation violation. However, what ends up happening, is you will have a new open case and the probation violation trailing behind it, waiting to see what happens on your new case.handcuffs

If you plead guilty to the new charge or are found guilty after a trial, the judge will then address the probation violation in a probation violation hearing. Typically that is done in front of the sentencing judge who put you on probation on the first case. However, the judge on your new case, if s/he has jurisdiction over the first matter, may address probation with the new case, in what is often called packaging or bundling both together.

The probation violation hearing has a lower standard of proof, meaning a judge only has to find that you violated the terms of probation “by a preponderance of the evidence” not “beyond a reasonable doubt” as required in criminal cases.

At the hearing, both the prosecutor and the probationer will be able to present evidence. If the judge finds that it is more likely than not that the probation terms were violated, Continue reading →

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Driving under the influence of drugs, or DUID, is essentially the same as a DUI with alcohol. The code section reads: “It is unlawful for a person who is under the influence of any drug to drive a vehicle. “

pillsIn essence, the prosecutor has to prove that the defendant drove a vehicle, and when s/he drove, s/he was under the influence of a drug. The drug can be an illegal substance, a prescribed medication or even an over-the-counter medicine that could affect the nervous system, brain, or muscles of a person.

“Under the influence” is the hardest element for the government to prove. According to the California Jury Instructions (2110), “A person is under the influence if, as a result of…taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.”

Unlike drunk driving cases involving alcohol, Continue reading →

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My criminal defense practice is almost exclusively in the area of drunk driving. However, I have had a few DUI cases were my client was able to prevail at the DMV APS Hearing, just to receive another notice of suspension from the DMV because of a medical issue such as diabetes, seizures, loss of consciousness or memory issues. My clients have then retained me to also defend them at the P & M Hearing in hopes of maintaining their driving privileges. Since I handle these hearings for my clients, I am now getting retained by people just to handle these DMV matters.grandmadriving-300x200

What triggers this action by the DMV is either: 1.) The “Confidential Morbidity Report” which is filled out by a treating physician; or, 2.) A “Request for Driver Reexamination” which can be filed by any person who knows of a reason why someone is unable to drive safely.

Under Health & Safety Code Section 103900, a doctor is required by law to Continue reading →

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In California, if a person is initially arrested for driving under the influence, the case may be negotiated down to other, less severe charges such as a wet reckless, dry reckless, drunk in public, or even an exhibition of speed charge. Successful negotiation will depend upon the facts of the case.

In my experience in San Diego courts, exhibition of speed as a reduction from a drunk driving charge is rarely available as a negotiated plea, unless the case has some serious flaws and the prosecutor believes the DUI case cannot be proven in trial. However, I have been able to obtain such a result in a case that was filed in the Los Angeles Metropolitan Courthouse. My client had a .08 BAC on both the preliminary alcohol screening test and the evidentiary breath sample.

The exhibition of speed charge is found in California Vehicle Code Section 23109(c), and it does not mention alcohol, drinking, drugs, blood alcohol content, or under the influence. Therefore, it is a much better result for the defendant because the penalties are a lot less severe. There is no license suspension, unless Continue reading →

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The time has changed and the weather feels a lot like summer is just around the corner! Excited for Sunday Funday’s, cold beers and margaritas, BBQ’s, parties and beach time? Know the law and plan ahead so your fun does not end with criminal charges.

If you head out to bike your way around town after consuming an alcoholic beverage, be aware that you can be arrested.

If your bike can be propelled, moved, or drawn upon a highway, such as a motor bike, you can be charged with driving under the influence of alcohol, drugs, or a combination of both. All the penalties of a standard drunk driving offense involving an automobile would apply. However, if your bike is self-propelled, you will not be subjected to the DUI statutes. Instead, you can be charged with BUI or CUI, biking or cycling under the influence, under California Vehicle Code Section 21200.5.

This code section specifically states: “…it is unlawful for any person to ride a bicycle upon a highway while under the influence of an alcoholic beverage or any drug or under the combined influence of an alcoholic beverage and any drug. Continue reading →

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IMG_7722-300x225As the weather warms up in San Diego, people enjoy the outdoors and get more active. Many flock to the bay, ocean, lakes and rivers to enjoy a day on the water, but be aware that law enforcement agencies are out in full force actively looking to cite people for boating under the influence, BUI’s.

In California, if you operate a motorized boat or any watercraft while under the influence, you can be arrested and charged with a crime. (Note: This code section only applies to motorized vessels, meaning that you cannot be charged under these code sections if your vessel is exclusively self or water propelled such as a kayak, rowboat, or a non-motorized sailboat. Also, there is a “zero tolerance” policy for anyone under the age of 21, meaning if you are underage, any measurable amount of alcohol can lead to BUI charges.)

The Harbors and Navigation Code provides the statutes for BUI. The language of the code is very close in the language in the California Vehicle Code for drunk driving, (see California Vehicle Code section 23152).

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Recently, California Governor Jerry Brown signed SB 1046 into law after the State Senate and Assembly voted overwhelmingly in favor, (unanimously with the exception of one “no vote recorded” in the Assembly).  This law will require that all persons convicted in California of a DUI, even a first offender, to install an ignition interlock device, or IID, in all the vehicles s/he owns for a specified period of time.

An IID is a machine that is installed in your car’s ignition. In order for your car to start, the driver must first blow into the machine. If no alcohol is detected, the car will start. If alcohol is detected, the car will not start. In addition, as the car is running, it requires additional breath samples with no alcohol detected to keep the car operational.

The penalty will be as follows: Continue reading →

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Uber, a rideshare program that has been in operation for over 6 years, gives riders an option to get around town without using the bus, a taxi, a bike or walking. Over the past couple of years, their program has greatly cut fares and in many cities they now also offer UberPool, where a rider can share a car with others to save even more.

Uber often argues that their app helps combat drunk driving incidents because riders are choosing to use their rideshare program over driving their own cars during times when they expect to consume alcohol. However, a recent study in the American Journal of Epidemiology found no noticeable impact on the number of drunk driving fatalities in cities where Uber operates. “We found that the deployment of Uber services in a given metropolitan county had no association with the number of subsequent traffic fatalities, whether measured in aggregate or specific to drunk-driving fatalities or fatalities during weekends and holidays.”

It is estimated that there are 121 million drunk driving incident s in the United States, resulting in 10,000 fatalities yearly. However, this study is limited to fatalities, not the number of potential DUI drivers who are using Uber as a transportation alternative, thus avoiding a drunk driving citation, or worst, a traffic accident with potential injuries and deaths. Continue reading →

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justice scales.jpgOnce a driving under the influence defendant pleads guilty or is convicted after a jury trial, their criminal record will reflect this indefinitely. Since criminal records are public records, they can be easily searched and found by law enforcement agencies, employers, and state licensing agencies. Most probationers want to get their criminal record cleaned up as soon as possible so their record does not hinder them.

A standard DUI sentence includes a term of probation. Under California law, Penal Code Section 1203.4, a person is eligible for an expungement “in any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation.” There are a few exceptions to this rule where an expungement is not available. Examples of this are when the person served time in prison for this offense or the offense was a sex crime.

Most drunk driving cases are eligible for expungement.

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If you are arrested for drunk driving in San Diego, you may be ordered to SCRAM, (which stands for “Secure Continuous Remote Alcohol Monitor”). The judge may include this in your sentence after you enter a guilty plea, after a conviction after a trial, or, any time before the conclusion of the case if the judge is concerned about public safety, recidivism, or your continued alcohol use. Typically, repeat offenders and cases involving high blood-alcohol content and severe accidents are ordered to abstain from all alcohol use and are often monitored by this program.

SCRAM is a bracelet that is worn on the ankle, 24/7, for the period of time ordered by the judge. You are also given a base station to plug into your landline telephone or internet router at home or work, which stores and transmits the data collected by the bracelet.

The offender is required to pay $100 to install the device, plus a daily fee of $15, paid two weeks in advance. This can be scaled from $7 t0 $15, depending on the offender’s ability to pay. They accept cash, checks, money orders, and all major credit cards.

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