Recent Blog Posts in March 2010 |
| March 30, 2010 |
| What constitutes a "refusal" for the DMV? |
| Posted By Gold & Witham |
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A failure or refusal to submit to a chemical test following a lawful arrest for DUI in California leads to a license suspension for between one and three years. The question then, is what constitutes a "refusal"?
A common problem is that some people have difficulty blowing into the breath machine after an arrest. A failure to complete a breath test may be as a result of insufficient breath or a faulty machine or some medical difficulty, but in these curcumstances, the suspect is under an obligation to submit to a blood test instead. A refusal to submit to a blood test following an aborted breath test will lead to a one to three year suspension.
Some people refuse to submit to a test and then change their mind. A request to submit to a test following an initial refusal, does not "cure" the refusal and the police are not obligated to allow a second bite at the cherry. Even if the police allow a test in these circumstances, the DMV may suspend based on the initial refusal.
Officer induced confusion is a well recognized "defense" to a refusal in DMV proceedings. This may occur if the arresting officer gives Miranda warnings following a DUI arrest, advising a suspect of their right to counsel, and then tells the suspect that they have no right to consult with an attorney before choosing a test. In these circumstances, the DMV should set aside the suspension.
Fear of needles is no excuse, although a suspect may request to see the qualifications of the person taking a blood sample as this is deemed a reasonable request.
Following an accident, a suspect who suffers a head injury and is thereby "confused" or medically impaired by the trauma, is not deemed responsible for a subsequent refusal and the suspension proceedings should be set aside.
A failure of the arresting officer to properly advise a suspect of their obligation to submit to a test and their choice of test, or a failure to advise on the consequences of a refusal may also lead to a set aside of the suspension.
The DMV do not have to establish that the licensee was impaired by alcohol or "over the limit" before suspending based on a refusal, although the arresting officer must detail some evidence of alcohol impairment before legally arresting someone for DUI. An unlawful arrest would lead to a set aside of the suspension.
It should also be noted that a dismissal of DUI charges in court, or a finding of not guilty by a jury, does not lead to a set aside of the DMV suspension based on a blood or breath test refusal.
If you have been arrested for a DUI in Los Angeles or Orange County and you are concerned about a lengthy license suspension based on a refusal to submit to a chemical test, it is essential that you consult with a DUI/DMV defense lawyer immediately to enable them to take the necessary steps to defend the DMV proceedings.
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| March 23, 2010 |
| Riverside Police Chief arrested for DUI |
| Posted By Gold & Witham |
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Former Riverside Police Chief Russ Leach was charged with DUI on monday following a traffic collision which occured last month. The CHP reported that Leach had been drinking and taking prescription medications on February 8th. It is unlawful in California to drive under the combined influence of alcohol and drugs including medication. His city owned vehicle was caught on tape running a red light and colliding into a "low-profile object" that flattened his tires and damaged the front end of his car. Leach was not arrested at the scene, but was instead driven home, despite evidence of intoxication. Riverside Police Department is now the subject of an internal investigation to determine whether he was afforded special treatment. Leach resigned a few days after the incident. It is normal procedure for a suspect to be detained after a DUI accident and taken into custody for a blood or breath test. It is unclear why Leach was driven home instead of being arrested after the incident.
In an unrelated incident, an on-duty Colorado State Trooper was also arrested for DUI on monday after several people called the police to report that the State Patrol Vehicle was weaving erratically. David Dolan was arrested while on duty and in uniform. Dolan is a 21-year veteran of the State Patrol. He was reportedly placed on unpaid leave pending the investigation.
DUI can happen to almost anyone including police chiefs and on-duty cops. Los Angeles and Orange County DUI lawyers, Nigel Witham and Jeffrey Gold have represented people from all walks of life including lawyers, doctors, police officers, firemen, priests, actors and sports personalities. If this has happened to you, please call us at 562 938 7771. |
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| March 17, 2010 |
| Prior DUI Convictions and Jury Trial |
| Posted By Gold & Witham |
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In
defending a DUI with prior convictions at jury trial, defense counsel must make a timely motion to bifurcate the issue of whether the defendant has prior DUI convictions. This means that reference to the prior conviction or convictions should be removed from the complaint prior to trial. Following a guilty verdict on the DUI charges, the issue of the priors can then be addressed by the court. Either the existence of the priors is admitted for the purpose of sentencing, or the fact of the priors is disputed and then tried before the same jury.
Generally, judges will grant a timely motion to bifurcate the issue of prior convictions for DUI because of the prejudice to the defendant if the jury was aware of the prior conviction in reaching a verdict in the present case. If the prejudicial effect of the evidence outweighs any probative value, the evidence should not go before the jury.
However, I am due to try a
DUI in Pasadena Court for a client who has two prior convictions for DUI. The prosecutor has filed a motion to allow her to introduce evidence of the priors at trial to establish the defendants propensity to drive while under the influence of alcohol. My argument will be that the relevance of the priors in establishing evidence of the defendants propensity to drink and drive is significantly outweighed by the prejudice to the defendant in allowing this evidence. Simply put, the defendant would be denied the right to a fair trial. Few juries would find a defendant not guilty in these circumstances never mind the strength or weakness of the prosecution case. The issue will be decided by the trial judge prior to jury selection. If the evidence is allowed, I expect the matter to be appealed.
An arrest for a DUI can be a life changing experience, and for most, it is a one and only time event in their lives. However, for those who re-offend and find themselves facing a lengthy license suspension and jail time, hiring an
experienced DUI attorney is essential.
If you find yourself in this position, please call us for a free consultation. |
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| March 08, 2010 |
| Beating a DUI with a Refusal Allegation. |
| Posted By Gold & Witham |
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The law in California requires that a person lawfully arrested for a DUI submits to a chemical test to determine their breath or blood alcohol level.
A refusal to submit to a test may result in a forced blood test or greater penlaties in court and a long license suspension from the DMV.
However, the other way to look at this is that it can be more difficult for a prosecutor to prosecute a DUI allegation without a blood or breath test. The arresting officers opinion about the sobriety of the defendant is essentially the only evidence without a chemical test result. The refusal may be seen as evidence of guilt, but a jury cannot convict a person based on the refusal allegation alone and there is often a reasonable explanation for the refusal independant of consciousness of guilt.
During the course of the last year, I have been retained for three refusal cases in West Covina Court in Los Angeles County. All three cases were rejected by the District Attorneys Office for lack of evidence. This demonstrates an understanding by the Deputy in Charge of the Court that if the evidence of impairment is weak, a DUI case should not be prosecuted.
If you have any questions concerning DUI defense, please contact Los Angeles and
Orange County DUI lawyers Gold and Witham for a free consultation. |
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| March 03, 2010 |
| County Jail for Felony DUI |
| Posted By Gold & Witham |
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I was stunned yesterday when I received a call from a client who had just been released from a six month county jail sentence. The reason for my surprise was that she had surrendered for her sentence the previous day.
The six month jail sentence was as a result of a negotiated disposition in Los Angeles Superior Court, CCB, for a felony DUI. The client had no prior convictions and came from a middle class, law abiding family. The case was made a felony because of an accident resulting in physical injury to a third party. The injury resulted in surgery and the removal of over a foot of lower intestines from the victim. The DA had filed a great bodily injury enhancement and had fought strenuously for at least 18 months of state prison time.
I was aware of the overcrowding problem in Los Angeles County Jail and I had been reliably informed that my client was probably going to be released after serving ten percent of her jail time. I was both very surprised and very happy that she was released after just one night in jail.
No conclusions can be drawn from this account as anyone serving jail time is entirely at the mercy of the Sherriffs department in terms of early release. Nobody can expect to be released so quickly. If State Prison time had been ordered per the insistence of the DA, the client would have served two thirds of this time. |
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| March 03, 2010 |
| Early release from Jail for Felony DUI. |
| Posted By Gold & Witham |
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I was stunned yesterday when I received a call from a client who had just been released from a six month county jail sentence. The reason for my surprise was that she had surrendered for her sentence the previous day.
The six month jail sentence was as a result of a negotiated disposition in Los Angeles Superior Court, CCB, for a
felony DUI. The client had no prior convictions and came from a middle class, law abiding family. The case was made a felony because of an accident resulting in physical injury to a third party. The injury resulted in surgery and the removal of over a foot of lower intestines from the victim. The DA had filed a great bodily injury enhancement and had fought strenuously for at least 18 months of state prison time.
As an
experienced felony dui lawyer in Los Angeles, I was aware of the overcrowding problem in Los Angeles County Jail and I had believed that my client was probably going to be released after serving ten percent of her jail time. I was both very surprised and very happy that she was released after just one night in jail.
No conclusions can be drawn from this account as anyone serving jail time is entirely at the mercy of the Sherriffs department in terms of early release. Nobody can expect to be released so quickly. If State Prison time had been ordered per the insistence of the DA, the client would have served two thirds of this time. |
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| March 02, 2010 |
| DUI versus Criminal Defense Lawyers |
| Posted By Gold & Witham |
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Most people arrested for a DUI do not know a DUI defense lawyer and therefore have to find one. Some people consult with their "family attorney" who then refers them to a
specialist DUI lawyer. Others will respond to mail solicitations recieved from law firms following the arrest. Most people will do some research on the internet and find an attorney by reviewing their website. In any event, choosing an attorney can be a confusing experience as lawyers have different approaches and charge different fees.
Although there are many excellent criminal defense lawyers,
defending DUI charges in California is a specialized area of law requiring a knowledge of science as well as law. It is advisable to hire a lawyer who focusses his or her practice on the defense of DUI charges, as opposed to general criminal defense.
The most common complaint about attorneys is that they do not return calls or keep clients advised on the status of their case. I get calls frequently from people who have already hired a lawyer, and the complaint is invariably that they do not know what is going on with their case. It tends to be the cheaper lawyers charging less than $2000 that do not have the motivation or the time to answer clients calls.
Los Angeles DUI defense attorneys Nigel Witham and Jeffrey Gold provide a high quality personalized service intended to reduce anxiety and maximize results. Please call them at 562 938 7771 for a free case evaluation. |
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