Recent Blog Posts

Great Bodily Injury Enhancements for Felony DUI

Gold & Witham — Thu, 02 Feb 2012 22:25:00 GMT

Penal Code Section 12022.7 provides for an additional three year prison term in the event that a defendant is convicted of a felony involving great bodily injury to another person in California. Great bodily injury is defined as "significant or substantial physical injury". In addition, a defendant found guilty of this enhancement must serve 85% of their prison term because such a conviction qualifies as a violent felony. Penal Code Section 667.5(c)(8) classifies a violent felony as "Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in section 12022.7"

Calcrim jury instructions (3160) state that great bodily injury is an injury that is greater than minor or moderate harm. This would certainly include broken bones, and may also include soft tissue injury that is more than minor and cuts requiring medical treatment. The jury must determine if an injury constitutes great bodily injury, not the judge.

In plea negotiations, prosecutors retain the discretion to dismiss a great bodily injury enhancement thereby avoiding the sentencing consequences of penal code section 12022.7. They may do this in borderline cases where the injury is not particularly serious, or in circumstances where the defendant has paid restitution in full to a victim who is satisfied, or because the defendant has earned consideration and leniency by showing remorse and taking steps to address his or her sobriety. If probation is granted, the judge retains discretion to impose a sentence that does not include state prison time even with a plea to felony dui with this enhancement. A person convicted of a felony DUI with great bodily injury in Los Angeles is, however, presumed not to be eligible for probation.

Felony DUI defense attorneys Jeffrey Gold and Nigel Witham have many years of experience defending felony DUI cases in Los Angeles and Orange Counties. You may reach them at 562 938 7771.

Re-analysis of blood test evidence.

Gold & Witham — Fri, 27 Jan 2012 19:26:00 GMT

Following an arrest for DUI in California, a suspect has the choice of whether to consent to a breath or a blood test. A breath test does not allow for independent testing on a future date as the breath testing machine does not retain a sample of breath for later re-testing. However, if a blood test is taken the regulations governing blood alcohol analysis require that enough blood be drawn from the suspect to allow for later independant testing.

In order to re-analyze a blood sample, it is necessary for defense counsel to prepare a blood split order and request that the judge sign the order. The signed order must then be forwarded to an independent toxicologist. The toxicologist working with defense counsel will then serve the order on the law enforcement agency keeping custody of the sample. The agency will then return the sample to the county crime laboratory for a "split" of the sample. A sufficient portion of the sample is then made available for collection by the toxicologist retained by defense counsel. The independent toxicologist will then perform a duplicate analysis on the sample following the exact same procedure followed by the county crime lab. Normally, the toxicologist will also check to see if the sample contained a sufficient amount of preservative. It is also possible to perform a bacterial culture on the sample to see if there has been any bacterial growth in the sample that would cast doubt on the samples integrity and therefore on the blood alcohol results. Theoretically, a proper chain of custody, adequate preservative and proper refrigeration should maintain the samples integrity, but we have observed bacterial growth in samples despite these safeguards.

Most blood alcohol results turn out to be accurate, but some re-tests turn up surprising results that help in getting DUI charges dismissed. The bottom line is that you never know until you re-test. Defending a DUI in Los Angeles is often about digging for problems and issues and not just relying on the evidence presented by the prosecution.

If you have been arrested for a DUI and you are concerned about the accuracy of the blood test in your case, please contact Los Angeles and Orange County DUI lawyers Gold and Witham for a free case evaluation.

Youth Drug and Alcohol Deterrence Program (YDAD)

Gold & Witham — Wed, 18 Jan 2012 21:54:00 GMT

For those arrested for a DUI under the age of 21 in Los Angeles or Orange County, the court penalties include a requirement to attend a youth drug and alcohol deterrence program (YDAD).

The YDAD program offers participants insights into the effects of alcohol and drugs on their lives and shows participants the potential real life consequences of drinking and driving. The program includes an alcohol awareness class, a coroners visit, a visit to a trauma center and a MADD Victim Impact Panel Meeting.

At the alcohol awareness class, participants hear speakers whose lives have been impacted by the use of alcohol and drugs. The issues addressed include the legal, financial and health effects of alcohol use. The coroners visit can involve a vivid presentation by a coroner as to the effects of alcohol on the body. The trauma center visit involves participants meeting patients involved in alcohol related incidents, listening to experts from the trauma unit, a tour of the hospital and a video presentation concerning the effects of alcohol and drug abuse. Finally, the Mothers Against Drunk Driving victim impact panel visit is hosted by people whose lives have been significantly effected by incidents of drunk driving. Typically a parent who has lost a child to a drunk driver will talk about the devastating impact to the victims family.

The intention of the program is to provide participants with an experience which will impact them emotionally and result in the motivation never to take alcohol or drugs and drive again. The program typically costs about $225. At the end of the program, participants are required to write a one thousand word essay about their experience and what they have learned.

If you have any questions concerning the penalties for a DUI in California, please call Los Angeles and Orange County DUI lawyers Gold and Witham for a free consultation.

DMV Wins.

Gold & Witham — Mon, 09 Jan 2012 23:22:00 GMT

We won two DMV hearings in DUI cases last week on the same issue. Both clients had .09/.10 breath test results. In both cases, our toxicologist, Henry Greenberg testified that he believed that the evidence established a high probability that the licensee's blood alcohol level at the time of driving was below .08%.

The Vehicle Code states that if a person submits to a breath or a blood test and the reading is at or above a .08%, it is a rebuttable presumption that the persons breath or blood alcohol level at the time of driving was also at or above the legal limit. This presumption applies if the test was taken from the subject within three hours of the time of driving. The DMV will suspend a persons privilege to drive in these circumstances unless it is proven through testimony or other evidence that the licensee's actual blood alcohol level was below .08% at the time of driving. This requires the opinion of a toxicologist and may be based on the evidence in the police report or on additional testimony from the licensee as to his or her drinking pattern. If a person finishes drinking at a time close to the traffic stop, he or she may still be absorbing alcohol recently consumed, leading to a rising blood alcohol level from below the limit at the time of driving to above the limit at the time of the test. This is called a "rising blood alcohol defense".

It can be a hard sell to a DMV hearing officer and the argument needs to be presented clearly and economically. Some experienced DMV hearing officers will accept the argument, some will reject it without fair consideration. Younger, inexperienced hearing officers struggle to understand the concept and decisions can be frustratingly inconsistent. I once had a hearing officer say to me, off the record, "So does anyone actually ever buy this argument?" I had to inform him that I had won approximately a hundred DMV hearings on this issue.

If you are interested in discussing your DUI case with an experienced DMV defense lawyer in Los Angeles, please call Nigel Witham at 562 938 7771.

Tougher Penalties for third DUI conviction.

Gold & Witham — Tue, 03 Jan 2012 22:50:00 GMT

As a result of a new law in California, as of january the first 2012, any third time DUI offender faces the possibility of a ten year revocation of his or her license. The new law gives judges the discretion to revoke the privilege to drive of any defendant convicted of a third DUI in California, for a period of up to ten years. The original Bill, which was watered down, would have given judges the discretion to impose lifetime bans on multiple offenders and to take into account prior convictions outside of the normal ten year priorability period.

The law prior to this year mandated a three year revocation of a defendant's privilege to drive, with the ability to apply for early re-instatement after six months with a DMV approved ignition interlock device installed in the defendant's vehicle. This remains the law unless the judge in any individual case exercises his or her discretion to order a longer period of revocation.

It remains to be seen how often prosecutors will take advantage of the new law to negotiate for greater penalties for a third DUI in plea bargaining or how judges will respond to their new powers.

If you have been charged with a third DUI in 2012, please call Los Angeles DUI lawyers, Gold and Witham for expert representation.

Wrongful incarcerations in Los Angles County Jail

Gold & Witham — Tue, 27 Dec 2011 17:11:00 GMT

According to a report in the Los Angeles Times on Christmas Day, hundreds of people have been wrongly incarcerated in Los Angeles County Jail over the course of the last five years. The number of wrongful jail terms has been placed at 1,480 during that period.

Some people have spent weeks behind bars before the authorities realized that they were mistaken for wanted criminals. Many of those held behind bars were mistaken for criminals because of a variety of factors including overlooking fingerprint evidence and poor record keeping. The problem involves the police arresting the wrong people based on warrants issued by judges that do not precisely identify the right person. The sherriff's department then fail to correct the error by keeping people for days, sometimes weeks before realizing that they have the wrong person in custody.

Sherriff's officials asserted that they are bombarded by claims of innocence and it would be impossible to check every claim expeditiously.

For those who are jailed, the experience can lead to loss of employment, embarrassment, stress, and injury from assault by other inmates or jailers. The experience can be long and harrowing.

Errors in the system do not always result from mistaken identity. I once had a client who had paid his fine for a DUI conviction by mailing his check to the court. He was stopped by the police for a traffic infraction some months later and was arrested on a warrant issued by the court for non-payment of his fine. The traffic stop was on a friday and he was not produced in court until the following monday. When his case was called in Metropolitan Court on monday morning, it was discovered that his check had been received by the court but was still sitting in his file. The court clerks office had failed to bank his check. My client spent three nights in jail as a result of an error by a court clerk. He did not receive any apology from the judge who simply ordered him released without any further comment.

Most law abiding citizens support the police and the criminal justice system. Penalties for DUI in California are increasing every year and in a tough economy, many people are struggling to pay their fines and complete their programs leading to warrants issued for probation violations. However, it comes as a big surprise to people when they are wrongfully arrested and incarcerated because of mistaken identity or faulty paperwork. Until the system is improved, perhaps we should take a step back before supporting any further increases in penalties for DUI and other criminal offenses.

Gold and Witham Attorneys at Law is a law firm dedicated to the defense of DUI cases in Los Angeles and Orange County.

California DUI Deaths drop to record low.

Gold & Witham — Thu, 15 Dec 2011 22:41:00 GMT

According to a federal report released this week, the number of DUI related fatalities in California has dropped to a record low. The National Highway Traffic Safety Administration (NHTSA) claimed that federally funded anti-drunk driving campaigns contributed to the drop in DUI fatalities. Alcohol contributed to 791 deaths in the state in 2010 as opposed to 950 deaths in 2009.

In 2010, the federal government increased the budget for DUI checkpoints. 2,553 checkpoints were conducted last year, up from 1,740 in 2009. The drop in DUI fatalities has been attributed to the deterrent effect of the increase in the number of checkpoints.

However, some law enforcement agencies, including the Costa Mesa Police Department are moving away from checkpoints and toward saturation patrols. Checkpoints do not result in a large number of DUI arrests, but provide an educational and deterrent function. Saturation patrols result in more traffic stops of impaired drivers and more prosecutions for DUI. Saturation patrols are also cheaper than checkpoints as they require less manpower.

Felony DUI lawyers, Gold and Witham are experienced in defending serious felony DUI cases and Vehicular Manslaughter cases. They can be reached at 562 938 7771.

DMV Appeals and Writs

Gold & Witham — Fri, 09 Dec 2011 23:11:00 GMT

An arrest for DUI in California leads to a DMV hearing to determine whether the DMV will suspend a licensee's privilege to drive. Most DUI arrests result in a suspension. Following a suspension, the licensee has appeal rights. The Licensee may appeal to the DMV in Sacramento or file a Writ of Mandate with the Superior Court.

The first appeal right is to request that the DMV review the decision. The DMV has a department in Sacramento that reviews the decisions of DMV hearing officers statewide. The review must be requested within fourteen days of the suspension. There is a $120 administrative fee payable to the DMV for the review process. The local driver safety office will forward the documentary evidence and a copy of the recording of the hearing to Sacramento. This is not a hearing de novo, and no new evidence will be heard. The reviewing officer will simply review the evidence to determine whether the hearing officer was right or wrong to issue the suspension order. As this is the DMV reviewing its own decision, the chances of achieving a successful review are very low. It is almost a rubber stamping exercise. The other problem is that it can take four to eight weeks to get a decision and the suspension is not stayed in the meantime.

The second appeal right is to file a Writ of Mandate with the Superior Court requesting a judge to review the decision. This is not a request for a new hearing before a judge and a judge does not have the right to simply impose his or her decision on the DMV unless the DMV hearing officer did not follow the law or exceeded his or her discretion. The process may take months, but the judge has the power to issue a stay of suspension pending the outcome of the hearing. As the process involves an independent review, the success rate is higher, but judges are reluctant to overturn decisions, and may take into account public safety in upholding a suspension order. If the DMV hearing officer made a judgement call based on witness credibility, judges will normally not over-rule a decision.

If you are interested in receiving advice from a DMV lawyer in Los Angeles or Orange County experienced in DMV appeals, please call Gold and Witham at 562 938 7771.

DMV Win in Under 21 Case

Gold & Witham — Mon, 28 Nov 2011 21:11:00 GMT

The DMV in California has a zero tolerance policy for under 21 year olds who drink and drive. Any measurable amount of alcohol leads to a mandatory one year license suspension for a first offender. Even a .01% reading on a preliminary breath test device will lead to a suspension. Because of this, it is very difficult to win DMV hearings for clients under 21 years of age.

However, in circumstances where the police rely on a preliminary breath test reading, commonly referred to as the PAS device, case law requires that the DMV establish that the machine was operated properly, by a qualified officer and that it was working correctly at the time. Normally, this requires testimony both from the officer who operated the device and from an officer responsible for performing accuracy checks on the device.

I won a hearing for an under 21 year old client last week on the basis that the manufacturers guidelines for the PAS device suggest that two readings should be taken as a quality control measure and that the readings should be within .02% The official position of the DMV is that the police need only take one reading. My expert, Henry Greenberg testified that one reading is not reliable and not in accordance with the manufacturers guidelines and the DMV hearing officer set aside the suspension.

Winning the DMV hearing in a DUI case is often the priority for clients living in Los Angeles and Orange Counties where public transport is limited. At Gold and Witham, we invest as much energy into winning the DMV hearing as being successful in court.

Second DUI offense reduced to Exhibition of Speed

Gold & Witham — Mon, 21 Nov 2011 23:31:00 GMT

I was in court last week for a client who rode his luck for a second time. I had previously represented him following an arrest for DUI four years ago. On that occasion, the DUI charges were dismissed and he pled to an "exhibition of speed" which is a violation of vehicle code section 23109(c). The penalty was a fine only. He was recently arrested again for a DUI following a traffic stop for speeding. He blew into a preliminary alcohol screening device which gave readings of .08% and .08%. Following his arrest, he gave a breath test readings of .07% and .07%. I was dealing in court with the same prosecutor that offered him the original deal four years ago, and you can imagine that he was less than impressed that my client had not learned from the experience and had been arrested again. However, the prosecutor accepted that he would have difficulties in successfully prosecuting the case, given the borderline readings, and again offered my client a reduction to an exhibition of speed with a reduced fine and ten AA meetings.

My client was lucky that he was not before a more punitive court, such as Harbor Justice Center in Orange County as he would have been looking at jail time instead of a reduction in charges. Following the hearing, I was concerned to hear from my client that he still believed he was a safe driver and could judge the amount of alcohol that he consumed before driving. I advised him that given the fact that he had been charged twice for DUI, he should not be drinking any alcohol at all before driving. I do not think that he got the message. This left me with the feeling that maybe the successful result on both occasions taught my client the wrong lesson, despite my efforts to urge him never to drink and drive again.

As a DUI defense attorney in Los Angeles, I am motivated to get the best possible results in court for my clients. However, I also try to educate my clients about the dangers of drinking and driving and when I resolve a case, I hope never to have to represent that client again. I am not always successful with this and I suspect that it is not the last time that I will be representing Mr. "Exhibition of Speed".

DUI, How Much Will it Cost?

Gold & Witham — Thu, 10 Nov 2011 22:36:00 GMT

The figure you hear when arrested for DUI is that it will cost you around $10,000. It is worth taking a look at this and breaking down the actual cost of a DUI. The minimum fine for a DUI in California is $390. However, the court adds penalty assessments and mandatory court fees to this base fine so that the actual total is normally close to $1,900. The court has discretion to increase the fine up to $1,000 plus assessments and fees for a total of over $4,000, but this rarely happens. The court will also mandate completion of an alcohol education program. These programs are privately run for profit. The program may be three, six or nine months in length and the cost ranges from $450 to over $1,000.

There are hidden costs associated with a DUI, including an increase in insurance premiums. This may be the most significant cost over time, but varies from insurance company to insurance company and from insured to insured. A defendant may typically expect a rise in premiums of about $6,000 over the course of the next three years. A DUI can also find its way onto a credit report and effect the cost of borrowing money.

If you are convicted of a DUI in Los Angeles County, the DMV will also mandate the installation in your vehicle of an ignition interlock device. This normally costs about $80 per month and is required for five months.

The California DMV will charge a reinstatement fee of $145 following a DUI conviction.

Then comes the cost of hiring an attorney which varies considerably depending on the attorney's reputation and experience. Most good DUI lawyers in Los Angeles charge at least $3,000 to $5,000 for a first time DUI.

There is a huge industry surrounding DUI arrests in Los Angeles and Orange County. The Courts, lawyers, insurance companies, alcohol education classes, Ignition Interlock Device companies, the DMV all wanting money. Depending on where you are arrested, some arresting agencies even charge a booking fee for the privilege of being arrested. This can be over $300.

Being arrested for a DUI is an expensive experience. Ofcourse, money is one thing, but avoiding jail time and some of the more serious penalties for a DUI may be of greater priority, depending on the facts of the case.

Women and Alcohol

Gold & Witham — Thu, 03 Nov 2011 20:46:00 GMT

It is generally accepted that women are more susceptible to the effects of alcohol than men. Ofcourse, everyones physiology is different and there are exceptions to every rule. Some women who drink regularly will have a higher tolerance to alcohol than many men. However, women are, on average, smaller than men and have relatively more fat and less water in their body than men. Alcohol is distributed through the body according to the water content of blood and tissue. It is not soluable in fat. Therefore, if a person has a higher fat content, the alcohol will be distributed in a smaller percentage of body mass.

It has also been found that women have a lower amount of an enzyme in their stomach that breaks down alcohol. The stomach lining contains an enzyme called gastric alcohol dehydrogenase that breaks down alcohol before it can be absorbed into the body. As women have a lower level of this enzyme, they can have higher blood alcohol levels than men based on the consumption of the same amount of alcohol.

This, in part explains why women often have high breath or blood alcohol levels in DUI cases. However, it does not give a complete picture. Research has also suggested that there is an increasing trend in women towards binge drinking. This used to be the preserve of men, but gender equality and perhaps increasing stresses on women finding themselves competing in the job market while trying to build a family as well, has resulted in an increase in alcohol consumption.

There also seems to be an increase in the number of women arrested for DUI in Orange County and Los Angeles based on the consumption of prescribed medications. Sleeping pills, anti-depressants, anti-anxiety medications may all lead to impairment and a DUI arrest, often in circumstances where the defendant was not aware of the risks asssociated with driving after taking medication.

In any event, it is always important to explore the surrounding context of a DUI arrest in building an effective defense. Often there are underlying reasons for the circumstances which may make a difference to how a prosecutor or jury sees the evidence.

Attention Deficit Disorder and Alcoholism

Gold & Witham — Thu, 27 Oct 2011 20:13:00 GMT

It is common for people with Attention Deficit Disorder to turn to alcohol and other addictive substances to calm their restless brains and bodies. The use of alcohol or drugs to self-medicate can then lead to the commission of criminal offenses such as drunk driving.

The real problem is that when a person uses alcohol to self-medicate, addiction follows and repeat offending can result in jail or prison sentences without addressing the underlying medical condition. The problem feeds on itself until it is ultimately addressed. Many people suffer from alcoholism without understanding the underlying condition and that ADD has led them down this path. What starts off as a "solution" to ADD symptoms turns into a bigger problem.

For people in this situation, it is not enough to treat the addiction to alcohol or drugs without treating the ADD. Both need to be diagnosed and treated for the individual to have a chance of recovery and a productive life. ADD can be effectively treated with appropriate medications and ADD couseling, while alcoholism requires prolonged therapy in recovery groups or twelve step programs.

Many people who are arrested for DUI are represented by DUI defense attorneys who handle the case without addressing any underlying issue. The case can be successfully defended and the attorney may get charges reduced or dismissed. Most DUI lawyers are not interested in dealing with the defendants personal issues such as the underlying problems that led to the arrest in the first place. The traditional approach is to deny responsibility, attack the reliability of the evidence and take the case to trial if necessary in order to "beat it".

For defendants who are using alcohol to mask the symptoms of ADD, winning the case without addressing the underlying problem will result in a short term fix, but will likely result in the defendant being arrested again and again, until the problem is effectively addressed.

DUI defense lawyers should be aware of the need to assist clients who have problems with alcohol. Los Angeles DUI attorneys Nigel Witham and Jeffrey Gold regularly refer clients for a clinical evaluation with a psychologist and advise clients to attend self help or twelve step meetings, even on a first offense. Not only does this approach help to mitigate penalties at court, but it leads the defendant along the right path towards sobriety so that he or she does not become a repeat offender. Many people are resistant to the idea of taking these steps at first, but may greatly benefit from them in the long run. We have had clients call us a year after their case was resolved thanking us for changing their lives. An arrest for DUI does not have to be a devastating experience and may instead be a catalyst to taking positive steps towards recognizing deep seated problems and dealing with them.

Herman Cain Fought Stricter DUI Laws

Gold & Witham — Mon, 17 Oct 2011 22:01:00 GMT

Republican Presidential nominee Herman Cain fought tougher DUI laws when he was leading the National Restaurant Association in the 1990's. When Cain took over as CEO of the National Restaurant Association in 1996 he opposed the decrease in the legal limit from .10% BAC to .08% BAC. At that time, the majority of states used a .10 limit as their standard. The restaurant industry was concerned with a potential decrease in business if the .08 standard was adopted universally. Cain lobbied hard on their behalf arguing that there was little evidence to support the contention that the proposed new standard would result in less DUI related accidents and deaths.

"The problem is not the responsible drinker," Cain wrote in one letter. "It is the alcohol-abuser who gets behind the wheel of a car. In fact, according to the National Highway Traffic Safety Administration, two-thirds of all alcohol-related fatalities are caused by drivers with a BAC of 0.15 or higher"

This prompted an angry response from MADD. MADD vice President Diane Riibe qouted figures alleging that in 1996, 3,700 people were killed in traffic accidents involving a driver with a BAC under .10.

Ofcourse, MADD and their supporters eventually won out and .08 is now the standard in 50 States.

Very few politicians will go on record to oppose stricter DUI laws and penalties. There is no effective lobby supporting the rights of defendants charged with DUI. This despite the fact that constitutional protections have been reduced consistently over the years, penalties have increased unfairly, and it is routine for the police, prosecutors, judges and DMV hearing officers to treat otherwise hard working and law abiding citizens as if they have killed someone even if they are a borderline reading and have no priors. It comes as a shock to most people charged with DUI that the system is so heavily stacked against them, that even with a .08 BAC, no accident and an unblemished record it can take months of court appearances to get anything other than a DUI conviction.

If you have any questions concerning DUI defense in Los Angeles, please call Los Angeles and Orange County DUI Attorneys Gold and Witham for a free consultation.

Students, Financial Aid and Drugs Offenses

Gold & Witham — Wed, 12 Oct 2011 22:18:00 GMT

The 2008 Reauthorization of the Higher Education Act is a federal law which governs financial aid eligibility to students. A federal or state drug conviction can disqualify a student from receiving federal financial aid. Loss of federal financial aid may also make a student ineligible for aid from the State of California.

For a first offense of possession of illegal drugs, the student would be ineligible for financial aid for a period of one year. A second offense, two years, and indefinite eligibility for a third offense.

For a conviction involving the sale of drugs, a first offense would lead to a two year ineligibility period. A second offense would result in indefinite ineligibility.

The above regulations do not appear to include a conviction fordriving under the influence of illegal drugs.

Defending DUI charges often involves defending associated offenses such as possession of drugs. Other common offenses charged together with DUI include hit and run, child endangerment, vehicular manslaughter, driving on a suspended license and reckless driving. Los Angeles DUI defense lawyers Gold and Witham are experienced criminal defense attorneys with many years experience defending such charges.