Closely related to the previous FAQ, it depends on how similar the other state's DUI law (the one that you plead to/were found guilty of) resembles the California DUI law.
See our website for information on contacting me for a case-by-case comparison. DUI Defense LA.
Thursday, November 19, 2009
FAQ: Do my prior DUIs count?
It depends on how long ago you were arrested, not convicted. When figuring out the statute of limitations for priors it is calculated from the date of arrest to the date of arrest.
In California, DUIs remain priorable for 10 years. So if you were arrrested on November 21, 1999 and again on November 22, 2009, the 2009 DUI would be considered a first time DUI.
For more information, see our website at DUI Defense LA.
In California, DUIs remain priorable for 10 years. So if you were arrrested on November 21, 1999 and again on November 22, 2009, the 2009 DUI would be considered a first time DUI.
For more information, see our website at DUI Defense LA.
Monday, November 2, 2009
FAQ: How Does Bail Work?
Put simply, bail is the security for your appearance at court through trial.
Upon your being booked the police set bail usiing a bail schedule. Here for misdemeanors or Here for felonies. The amount is based solely on what you were charged with and is cumulative. That is, if you were charged with three offenses, the police would add the bail schedule amounts for all three. Likewise, if charges are later added or dismissed the amount of bail could change.
You can call the bail commissioner to have him review the amount of bail set.
Bail can be paid (1) in cash; (2) with a bail bond or (3) with a property bond. A bail bond is a promise to pay if the defendant doesn't appear obtained through a bail bond agency. They take a security (eg: a lien on your house), plus a fee (10% usually) and promise the court if you do not appear they will pay the full amount of the bond. A property bond is where you use your property by allowing the county to have a lien on it as security for the defendant's appearance.
At your arraignment your lawyer can request OR (own recognizance) release and a hearing will be scheduled in 5 days when probation prepares a report with a recommendation for OR release or not.
At the arraignment your lawyer can also ask for bail reduction. Bail has to be set in an amount that will assure the presence of each indivual. The bail set is based on a schedule that does not take the individual defendant into account. Since excessive bail is equal to no bail, the court has to reduce bail to an amount that will insure the defendants presence, which implies that it's an amount the defendant can come up with. Any amount higher than that amount is equivalent to setting no bail and requires the State to show that the defendant is a danger to the community.
We are experienced in all areas of obtaining bail for our client. Check out our website Los Angeles Defenders.
Upon your being booked the police set bail usiing a bail schedule. Here for misdemeanors or Here for felonies. The amount is based solely on what you were charged with and is cumulative. That is, if you were charged with three offenses, the police would add the bail schedule amounts for all three. Likewise, if charges are later added or dismissed the amount of bail could change.
You can call the bail commissioner to have him review the amount of bail set.
Bail can be paid (1) in cash; (2) with a bail bond or (3) with a property bond. A bail bond is a promise to pay if the defendant doesn't appear obtained through a bail bond agency. They take a security (eg: a lien on your house), plus a fee (10% usually) and promise the court if you do not appear they will pay the full amount of the bond. A property bond is where you use your property by allowing the county to have a lien on it as security for the defendant's appearance.
At your arraignment your lawyer can request OR (own recognizance) release and a hearing will be scheduled in 5 days when probation prepares a report with a recommendation for OR release or not.
At the arraignment your lawyer can also ask for bail reduction. Bail has to be set in an amount that will assure the presence of each indivual. The bail set is based on a schedule that does not take the individual defendant into account. Since excessive bail is equal to no bail, the court has to reduce bail to an amount that will insure the defendants presence, which implies that it's an amount the defendant can come up with. Any amount higher than that amount is equivalent to setting no bail and requires the State to show that the defendant is a danger to the community.
We are experienced in all areas of obtaining bail for our client. Check out our website Los Angeles Defenders.
Tuesday, October 27, 2009
FAQ: They Didn't Read Me My Rights After Stopping Me For DUI, Can I Get The Case Dismissed?
Short Answer: Not presently. The Case Law suggests that the answers you give to the questions an officer asks you at the side of the road after a traffic stop for DUI may be admissible against you without advising you of your Miranda rights.
In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The court held the subject was not under the belief that he couldn't leave. The court further held that in this case, the questions were not intrusive.
In my opinion, this issue is ripe for review in California. The difference between the Berkemer stop and a typical DUI stop is that in the typical DUI stop the officer pulls you over for one reason (swerving, speeding, running a red light) and then starts asking you questions that have nothing to do with that stop (have you been drinking? When? How Much?). The officer almost invariably states in his report that prior to asking these questions, he formed an opinion that you were under the influence (red, watery eyes, slurred speech, trouble accessing license). In the end, there are between 25-30 questions asked by the officer. For these reasons, it seems much more intrusive, to a level that would trigger Miranda, to me.
In a good test case, the subject would answer the questions, but ask the officer -- repeatedly -- if s/he was free to leave. If you are not free to leave, or do not believe you are free to leave, it becomes a custodial interrogation.
See our website DUI Defense LA for more information about what to do to avoid this issue when you're stopped by the police.
In Berkemer v. McCarthy, the US Supreme Court held that one or two questions asked after a traffic stop were investigative and non-custodial. The court held the subject was not under the belief that he couldn't leave. The court further held that in this case, the questions were not intrusive.
In my opinion, this issue is ripe for review in California. The difference between the Berkemer stop and a typical DUI stop is that in the typical DUI stop the officer pulls you over for one reason (swerving, speeding, running a red light) and then starts asking you questions that have nothing to do with that stop (have you been drinking? When? How Much?). The officer almost invariably states in his report that prior to asking these questions, he formed an opinion that you were under the influence (red, watery eyes, slurred speech, trouble accessing license). In the end, there are between 25-30 questions asked by the officer. For these reasons, it seems much more intrusive, to a level that would trigger Miranda, to me.
In a good test case, the subject would answer the questions, but ask the officer -- repeatedly -- if s/he was free to leave. If you are not free to leave, or do not believe you are free to leave, it becomes a custodial interrogation.
See our website DUI Defense LA for more information about what to do to avoid this issue when you're stopped by the police.
Wednesday, October 21, 2009
FAQ: Can I Drop Domestic Violence Charges Once I've Made A Complaint?
Frequent Answer: No. You can not drop Domestic Violence charges once you've made a verbal or written complaint.
The reason lies in the nature of criminal cases in that, unlike civil cases, it's simply not your case. Your part is a solely witness. The criminal case belongs to the prosecutor and only s/he can drop charges. And s/he is really, really reluctant to do so.
The follow up question is often: What do I do now that I've filed charges and want to drop them.
This presents a sticky situation for the person filing charges. You've made a mistake or have reconsidered, but the mistake may subject YOU to legal consequences. By recanting the facts in your complaint -- either made to the officer verbally or put in a written complaint -- you open yourself up to criminal charges of filing a false complaint, obstruction of justice, or perjury (if they've signed or given testimony under oath) being filed against YOU.
You should have a lawyer -- separate and apart from the person you've accused's lawyer to protect YOUR interests and negotiate these turbulent waters. One misstep can mean that you and the person you've accused can both wind up in big trouble.
The Los Angeles Defenders handle this fact scenarion often and have some tried and true strategies that can help those who no longer want to pursue criminal charges.
The reason lies in the nature of criminal cases in that, unlike civil cases, it's simply not your case. Your part is a solely witness. The criminal case belongs to the prosecutor and only s/he can drop charges. And s/he is really, really reluctant to do so.
The follow up question is often: What do I do now that I've filed charges and want to drop them.
This presents a sticky situation for the person filing charges. You've made a mistake or have reconsidered, but the mistake may subject YOU to legal consequences. By recanting the facts in your complaint -- either made to the officer verbally or put in a written complaint -- you open yourself up to criminal charges of filing a false complaint, obstruction of justice, or perjury (if they've signed or given testimony under oath) being filed against YOU.
You should have a lawyer -- separate and apart from the person you've accused's lawyer to protect YOUR interests and negotiate these turbulent waters. One misstep can mean that you and the person you've accused can both wind up in big trouble.
The Los Angeles Defenders handle this fact scenarion often and have some tried and true strategies that can help those who no longer want to pursue criminal charges.
Friday, October 2, 2009
The Circle Remains Unbroken
"Driving"
California case law (Alonzo) requires that a misdemeanor take place in the presence of the arresting officer. California case law (Engleman) requires that the court not rely on circumstantial evidence in determining whether a misdemeanor takes place in an officer's presence.
DUI case. Two elements: Driving and under the influence/.08 or above.
Me: Did you see my client driving?
Officer: No.
Me: Did you see my client behind the wheel?
Officer: No.
Me Did you see my client in the car at all?
Officer: No.
...
Me: Clearly, your honor he didn't see my client driving and can't form reasonable suspicion to detain my client.
Court: No. He can use circumstantial evidence.
Me: No. Engleman.
Court: She admitted she drove.
Me: He had to form reasonable suspicion before he asked her.
Court: He can use circumstantial evidence.
The circle remains unbroken.
Pros: It was a consensual encounter. I've provided caselaw.
Me: Those are felonies. Alonzo says a misdemeanor has to occur in the presence of the officer.
Pros: But VC 21718 says you can't park on the side of the road. He had a right to investigate.
Me: Sure, but as soon as he was told the car in front was broke down he had no reason to investigate further. Clearly, there has to be a broke-down car exception to VC 21718.
We then did the public policy dance.
Needless to say, my client lost the motion.
P.S. Once again, we learn: Don't talk to cops. Ever.
California case law (Alonzo) requires that a misdemeanor take place in the presence of the arresting officer. California case law (Engleman) requires that the court not rely on circumstantial evidence in determining whether a misdemeanor takes place in an officer's presence.
DUI case. Two elements: Driving and under the influence/.08 or above.
Me: Did you see my client driving?
Officer: No.
Me: Did you see my client behind the wheel?
Officer: No.
Me Did you see my client in the car at all?
Officer: No.
...
Me: Clearly, your honor he didn't see my client driving and can't form reasonable suspicion to detain my client.
Court: No. He can use circumstantial evidence.
Me: No. Engleman.
Court: She admitted she drove.
Me: He had to form reasonable suspicion before he asked her.
Court: He can use circumstantial evidence.
The circle remains unbroken.
Pros: It was a consensual encounter. I've provided caselaw.
Me: Those are felonies. Alonzo says a misdemeanor has to occur in the presence of the officer.
Pros: But VC 21718 says you can't park on the side of the road. He had a right to investigate.
Me: Sure, but as soon as he was told the car in front was broke down he had no reason to investigate further. Clearly, there has to be a broke-down car exception to VC 21718.
We then did the public policy dance.
Needless to say, my client lost the motion.
P.S. Once again, we learn: Don't talk to cops. Ever.
Wednesday, September 30, 2009
What I learned today.
Today I learned how to subpoena a witness who is in the custody of the CDCR.
First, obtain his location from the inmate locator number (916) 445-6713 or by fax at (916) 322-0500. You will need his/her full name and date of birth or CDC number.
Then contact the insitution where s/he is incarcerated. Confirm that you will need to send a copy of the subpoena and proof of service along with SASE and a cover letter. They will serve for you and return the POS.
Also, you will need to obtain a Removal Order from the Court. This may well be the subject of a post in the near future.
First, obtain his location from the inmate locator number (916) 445-6713 or by fax at (916) 322-0500. You will need his/her full name and date of birth or CDC number.
Then contact the insitution where s/he is incarcerated. Confirm that you will need to send a copy of the subpoena and proof of service along with SASE and a cover letter. They will serve for you and return the POS.
Also, you will need to obtain a Removal Order from the Court. This may well be the subject of a post in the near future.
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