Recent Blog Posts

Entry of a home to arrest for DUI.

Gold & Witham — Wed, 09 May 2012 22:19:00 GMT

The warrantless entry of a house or dwelling for the purposes of arresting someone for DUI is an unreasonable search and seizure in violation of the Fourth Amendment of the United States Constitution, absent probable cause and an exigent circumstance. Therefore, unless there is an urgent and pressing circumstance allowing entry, the police should first obtain a warrant for entry into a dwelling, including enclosed areas around the dwelling, such as a fenced in yard.

An exception to the warrant requirement would be consent from a person who reasonably appears to be an occupant with authority to allow entry. However, if an occupant is threatened and coerced, the consent may be invalid ( see the case of United States v Jerez 7th Cir. 1997 108 F.3d 684, where an unlawful seizure was found to take place where the police repeatedly knocked on a hotel room door for several minutes requiring the occupant to open up).

Several California decisions have also allowed the warrantless entry of a dwelling where the police observed the driving and entered the residence in "hot pursuit".

"Exigent circumstances" allowing entry without a warrant would also include circumstances where there was an imminent danger to human life or serious damage to property or to prevent the destruction of evidence or imminent escape of the suspect. (see People v. Ramey 1976 16 Cal.3d 263, 276). Entry for the purpose of securing a breath or blood sample may be a legitimate warrantless entry, depending on the facts and circumstances. This issue is addressed in the case of People v Thompson 2006 38 Cal. 4th 811. This case does not allow forced entry for the sole purpose of obtaining chemical testing in all cases and is limited to it's facts.

Although the courts have extended the power of the police to enter into a dwelling without consent and without a warrant, entry in these circumstances is not always lawful and a careful comparison of the facts to the facts in the above cases should always be made. The proper vehicle for challenging the legality of a non-consensual entry into a dwelling by the police would be a Penal Code 1538.5 Motion. The granting of the motion would result in the suppression of any evidence obtained as a result of the unlawful search including breath or blood test evidence in a DUI case.

If you have been arrested for a DUI in Los Angeles or Orange County as a result of the police entering your home without a warrant, please contact Los Angeles and Orange County DUI lawyers Gold and Witham for an analysis of the legality of the search and seizure.

Driving on Suspended License

Gold & Witham — Tue, 01 May 2012 22:07:00 GMT

The penalties for driving on a suspended license in California vary depending on the original and underlying reason for the suspension. When the suspension was imposed by the DMV following a conviction for a DUI, the penalties are more severe than in other circumstances. If the suspension was imposed following a DUI conviction, Vehicle Code Section 14601.2 requires a mandatory minimum jail sentence of ten days. For a second offense in five years, the minimum is thirty days. The maximum jail sentence is six months. In addition, the court is also required to impose as a condition of probation that the defendant install in his or her vehicle an ignition interlock device. Driving on a suspended license also leads to two penalty points on the DMV record. This can lead to a six month negligent operator suspension as the original DUI conviction also resulted in two penalty points.

In circumstances where the defendant is able to re-instate his or her privilege to drive prior to the court date for the 14601.2 citation, some judges or prosecutors are willing to accept a plea to a violation of Vehicle Code Section 12500 instead (driving without a vaild license). The advantage of this is that there is no mandatory jail time, no IID requirement, and no additional penalty points on the DMV record. In addition, a 12500 VC violation may be an infraction instead of a misdemeanor. For this reason, every effort should be made to re-instate the defendant's privilege to drive prior to the court date.

If you have any questions concerning the penalties and DMV ramifications for driving on a suspended license in California, please contact Los Angeles DUI and DMV lawyers Gold and Witham for a free case evaluation.

Framing the issues. How to deal with bad facts.

Gold & Witham — Tue, 24 Apr 2012 22:03:00 GMT

When my clients receive a copy of the police or arrest report prepared in their case, there is often surprise or consternation that the arresting officer's report of the events is so at odds with their recollection of what transpired. The dispute may be in relation to the officer's alllegations concerning the driving pattern observed, the performance of field sobriety tests or the officer's observations about the suspect's demeanor of objective symptoms of alcohol impairment. Often there is a feeling of concern that it "just looks bad".

Police reports are written from a law enforcement perspective, to support an arrest for DUI and to provide a prosecutor with information or ammunition to move forward with a prosecution. It is rare that the report contains a lot of positive information helpful to the defendant. Sometimes, there are a lot of positives, but more often than not, it takes some careful examination of the details to read between the lines and find evidence helpful to the defendant.

It is normally unproductive to get into a "he said, she said" kind of dispute with a prosecutor, as normally the prosecutor will give more weight to the police officer's observations in the police report, than a defendant's assertions that the officer is lying or mistaken.

Defending a case with bad facts such as a bad driving pattern, high blood alcohol level or refusal allegation can present a number of challenges, particularly if the defendant is looking for a reduction in charges, not just penalties. Sometimes it is better to try and frame the issues by moving a prosecutor away from the contents of the arrest report and instead focussing on the defendants character, efforts towards acceptance of responsibility or rehabilitation, and what is at stake for them if they are convicted. Some prosecutors can be moved to reduce charges even with bad facts if they think the defendant deserves to be treated differently. This requires a coopertative client who is willing to make an effort and work with their Los Angeles DUI defense attorney in attending AA meetings, counselling sessions, preparing letters of character reference etc.

If you are interested in learning more about the various approaches to defending a DUI in Los Angeles courts, please contact Los Angeles DUI lawyers Gold and Witham for a free consultation.

Sentencing Alternatives to Mandatory Jail

Gold & Witham — Tue, 10 Apr 2012 22:19:00 GMT

A third DUI conviction in California carries a mandatory minimum 120 days county jail sentence. However, mandatory jail is not necessarily mandatory. Penal Code section 2900.5(f) provides as follows;

"If a defendant serves time in a camp, work furlough facility, halfway house, rehabilitation facility, hospital, juvenile detention facility, similar residential facility, or home detention program in lieu of imprisonment in a county jail, and the statute under which the defendant is setenced requires a mandatory minimum period of time in jail, the time spent in these facilities or programs shall qualify as mandatory time in jail"

The obvious relevance of this provision is in relation to a defendant who is willing to engage in residential treatment pending resolution of his or her case. Those facing a prosecution for a third DUI in ten years often have an addiction to or problem with alcohol and should be encouraged to enroll in a treatment program for their own future health. If a defendant takes this step voluntarily, it is a good idea to ask the judge at the arraignment to formally order that the defendant remain in residential treatment pending the outcome of the case. At sentencing, the judge should be educated as to the provisions of the above penal code section, and credit should be requested against the jail sentence for the period spent in residential treatment. If the case is delayed beyond the 120 day minimum county jail period on a third DUI, it should be possibe to avoid the minimum sentence in its totality.

Ofcourse, despite the apparent mandatory language of the above penal code section, prosecutors and judges are often reluctant to allow defendants to serve out their jail term in a residential treatment facility. Defense counsel should be ready to address the merits of the situation by explaining what is required in the program and the specific benefits to the defendant and the community in addressing the underlying issue of alcohol addiction. The criminal justice system has an important interest in rehabilitation in order to prevent the commission of further offenses. It is often more difficult for a defendant to address his or her problems by way of lengthy residential rehabilitation, and defendants who take this step rather than taking a risk on early release with county jail time should be encouraged and supported by the court.

If you are facing a prosecution for a third DUI in Los Angeles or Orange County, please contact the DUI Defense Law Firm of Gold and Witham to discuss your options.

Unexpected Consequences of DUI

Gold & Witham — Tue, 03 Apr 2012 21:46:00 GMT

For those arrested for a DUI in California, there are obvious and immediate concerns such as the possibility of serving county jail time or losing one's privilege to drive for a period of time. However, there are often consequences to a DUI conviction that are not immediately considered by the defendant.

A DUI conviction can result in unpleasant surprises sometimes years after the event. For example, Canada has a strict policy of refusing entry to anyone convicted of a DUI. This can be a major problem for U.S. citizens who regularly do business in Canada. We recently represented a client who was engaged to be married to a Canadian citizen. She had not considered the potential impact of a DUI conviction on her plans to visit Canada in the short term and move there in the long term. The problem may only become apparent to people when they attempt to enter Canada for a family vacation only to be refused entry at the border.

A DUI conviction may effect a persons credit record, result in an employment opportunity being lost, termination of insurance or the inability to rent a motor vehicle. There are a number of problems that may become apparent sometimes months or years after the arrest.

If you have been arrested for a DUI in Los Angeles or Orange County, please contact the DUI defense law firm of Gold and Witham for expert guidance and representation.

Los Angeles County Jail and overcrowding.

Gold & Witham — Tue, 27 Mar 2012 20:21:00 GMT

According to a recent news report in the Los Angeles Times, The Los Angeles Sheriffs Department is considering closing part of the antiquated Mens Central Jail in downtown Los Angeles. The plan would be to house male inmates in the Lynwood facility which presently allows only female inmates. In addition, there would be an increased emphasis on early release of inmates convicted of non-violent offenses, by giving them the option of serving the balance of their sentence by way of electronic home confinement or "house arrest".

Non-violent inmates would include those convicted of aDUI in Los Angeles. Second and third time DUI offenders face up to a maximum of twelve months in county jail. Inmates convicted of non-violent misdemeanors are often released early in any event. If part of mens central jail was closed, the overcrowding problem would get even worse resulting in more and more early releases.

The overcrowding situation has resulted in some DUI offenders opting to elect for county jail time instead of negotiating for alternatives such as SCRAM, Caltrans, electronic home confinement or private jail. The problem for many is that there are no guarantees of early release. When you enter the county jail system, you are at the mercy of the Los Angeles County Sheriffs Department. Unlucky inmates serve half of their sentence or more. County jail can be a brutal environment and can be a very negative experience. At Gold and Witham, we work hard to avoid any kind of incarceration for our repeat offenders and instead focus on rehabilitation and treatment of underlying issues. After all, the best way to avoid any further repeat offending is to address the underlying issues of stress and alcoholism that led to the defendant commiting a second or third DUI.

Speeding over 100mph and License Suspension

Gold & Witham — Thu, 22 Mar 2012 20:00:00 GMT

California Vehicle Code section 22348 sets forth penalties for driving a vehicle on a highway at a speed exceeding 100mph. The fines for this infraction range from $500 to $1000 plus penalty assessments. On a first offense, the court also has the discretion to suspend the defendant's privilege to drive for up to thirty days. This is a discretionary suspension in the hands of the judge. However, per Vehicle Code section 13355, if the defendant has a prior violation for driving in excess of 100mph within the last three years, the DMV will suspend the defendant's privilege to drive for a period of six months. If there are two or more prior violations of this section within the last five years, the suspension period is one year.

In the event that the DMV suspends for six or twelve months pursuant to these provisions, the DMV has the discretion to grant a restricted license to allow driving to and from work and driving in the scope of employment.

Los Angeles and Orange County DMV defense lawyers, Nigel Witham and Jeffrey Gold are experienced in dealing with the California DMV in any suspension proceedings, including negligent operator hearings, fitness hearings and DMV APS hearings following a DUI arrest. They can be reached at 562 938 7771.

Independent Blood Sample

Gold & Witham — Tue, 13 Mar 2012 21:26:00 GMT

California law provides that if a person elects to submit to a breath test following a DUI arrest in California, that person must be advised that the breath machine does not retain a sample of breath for independent analysis. Further, that if the arrestee wishes, he or she may elect to submit to an additional blood or urine test for future independent testing pursuant to Vehcle Code Section 23614. It has been my experience that very few people take up this option, perhaps because the police often neglect to admonish arrestee's as to their rights. Afterall, as far as the police are concerned, they have the breath test results, why bother advising the arrestee that they may also submit to a urine or blood test?

The question then becomes, so what if the police fail to advise the arrestee that they may submit to a blood or urine test for independent analysis? The language in the Vehicle Code is that the police "shall" advise the arrestee of this right following a breath test. It is mandatory, not permissive language.

It seems that there is very little that a defendant can do about this. It is a right without an effective remedy. California Vehicle Code Section 23614(d) makes it clear that a failure to advise a suspect of the right to an additional test pursuant to this section does not affect the admissibility of the breath test results.

However, at jury trial, if it is established that the arresting officer did not follow the provisions of Vehcle Code Section 23614, it is only fair that the jury be advised of the law and the failure by the police to follow it. A special jury instruction should be crafted by defense counsel for the judge to read to the jury at the conclusion of the trial. The instruction should invite the jury to consider the failure by the police to follow correct procedure and give it whatever weight the jury considers appropriate.

If you have any questions concerning DUI defense in California, please call Los Angeles DUI lawyers Jeffrey Gold and Nigel Witham for a free consultation.

Wet Reckless and DMV

Gold & Witham — Tue, 06 Mar 2012 22:15:00 GMT

Effective January 1, 2012, new legislation made changes to the California Vehicle Code to allow a person with a prior DUI conviction, who is convicted of an alcohol related "wet reckless", to apply for the termination of the one year suspension imposed by the DMV for a second DUI arrest. The law brings consistency and fairness in that it places defendants convicted of a wet reckless in the same position as defendants convicted of a second time DUI. The law allows the defendant to apply for a restricted driver license 90 days after the court conviction by providing the DMV with proof of installation of an ignition interlock device, proof of enrollment in an approved alcohol program and proof of financial responsibility (SR22).

Under the law prior to January 1, 2012, DUI offenders in California with a prior DUI related conviction had the option to end their one year APS suspension after 90 days by participating in the IID program. However, individuals convicted of a wet reckless with one or more prior convictions for DUI or wet reckless, did not have the same option. The change in the law is intended to correct this inequity. The new law is covered by CVC section 13353.3.

Ofcourse, if the DMV hearing is won and the one year suspension is set aside, the above change in the law is irrelevant as a wet reckless disposition on a second offense, with a DMV win would result in no suspension at all and no IID requirement.

10 Year License Revocation for third DUI

Gold & Witham — Fri, 02 Mar 2012 22:11:00 GMT

Effective January 1, 2012, new legislation allows courts to order a ten year revocation of the privilege to drive of a defendant convicted of a third or subsequent DUI within ten years in California. The new law is covered by California Vehicle Code section 23597(a).

The ten year revocation is discretionary, not mandatory. The previous law requiring a three year revocation still stands as a minimum requirement for a third DUI. However, if a three year revocation is mandated, the defendant may apply to the DMV for a restricted license after six months with a requirement that he or she installs in his or her vehicle an Ignition Interlock Device.

The good news is that this increase in the potential period of revocation is entirely discretionary in the hands of the court which means that it can be avoided by effective plea negotiations. The DMV can't mandate it if the court doesn't. The courts will evaluate all mitigating factors including the defendant's remorse, age of prior convictions, blood or breath alcohol level and participation in treatment programs.

It is to be noted that if the ten year revocation period is mandated by the court, the DMV will allow an application for re-instatement after five years with an IID requirement.

Please contact Los Angeles DUI lawyers Jeffrey Gold and Nigel Witham for a free case evaluation if you have been arrested for a third time DUI in Los Angeles or Orange County.

DUI Checkpoints

Gold & Witham — Tue, 28 Feb 2012 18:56:00 GMT

Two States are considering the legality of DUI checkpoints. Unfortunately, California is not one of them. In Utah a Bill will soon be considered that would completely ban DUI checkpoints. It is sponsored by Utah state Representative David Butterfield. His belief is that DUI checkpoints violate citizens rights against unreasonable searches and seizures.

In New Hampshire, lawmakers are also considering the issues surrounding the legality of checkpoints. The concern is that checkpoints violate citizens civil rights and lead to due process violations. New Hampshire is considering preventing the police from setting up DUI checkpoints.

In California, DUI checkpoints are considred by their supporters to deter drunk driving and promote public safety. Checkpoints are legal so long as they follow certain guidelines. The guidelines are intended to require the police to publish their intention to set up a checkpoint and require that the location is chosen with public safety in mind. In addition, the checkpoint should be adequately sign posted and lit. Ideally, there should be an escape route for motorists approaching the checkpoint. There should be a pre-arranged criteria on the frequency of vehicle stops and a limit on field officer discretion on which vehicles to stop. The time spent on stopping vehicles should be brief to prevent undue inconvenience to motorists.

Some police agencies in Southern California prefer to spend resources on stepping up patrols as this tends to lead to more DUI arrests and prosecutions than DUI checkpoints.

If you have been stopped at a DUI checkpoint and arrested for a DUI in Los Angeles, please call DUI defense lawyers Gold and Witham for a free consultation.

Firefighters, DMV and DUI

Gold & Witham — Tue, 14 Feb 2012 22:25:00 GMT

Effective January 1, 2011, the California DMV discontinued issuing Commercial Driver Licenses to firefighters. Instead, firefighters must apply for a firefighter endorsement. Applicants applying for a firefighter endoresement must apply in person at a local DMV field office after meeting all requirements including certification of employment as a firefighter, certification of completion of fire equipment operation training and signature of the department fire chief. A written test, a drive test and submission of a completed medical examination report may also be required.

Because firefighters will now have a noncommercial Class C driver license with a firefighter endorsement, rather than a Class A or B commercial license, this has ramifications should a firefighter be arrested for a DUI in California. Under the previous law, firefighters faced a one year suspension of their commercial license if convicted of a DUI. This often led to loss of employment. Under the new law, because firefighters will have a Class C license, a DUI conviction would lead to a six month suspension but with the option of reinstatement on a restricted license to enable work related driving. Conditions of reinstatement would include enrollment in a three month alcohol program and filing of an SR22. In Los Angeles County, installation of an Ignition Interlock Device per the DMV pilot program would present an additional hurdle for firefighters. This presents the possibility that firefighters would be able to continue in employment and continue driving firefighting equipment following a DUI conviction.

If you are a firefighter charged with a DUI in Southern California, please contact Los Angeles and Orange County DUI lawyers Gold and Witham for further information.

Drug Diversion and DUI

Gold & Witham — Wed, 08 Feb 2012 23:37:00 GMT

For relatively minor drug possession and possession of drug paraphernalia cases, drug diversion is available which results in the defendant attending a drug diversion program and agreeing to remain offense free for a period of one year pursuant to Penal Code Section 1000. At the end of the year, the charges are dismissed. Disqualifying factors may include prior drug convictions, or a prior failure to complete a diversion program. Additionally, if the defendant has associated charges involving violence or an additional, non-qualifying drug charge, diversion is inappropriate. The problem arises if a defendant is additionally charged with a DUI involving suspected impairement with drugs. DUI based on drugs does not qualify for diversion and so associated drug possession charges would also be disqualified from diversion.

If a defendant is charged both with possession of drugs and DUI based on drugs, diversion is routinely denied and defense counsel must seek another strategy for defending the charges. Sometimes, there will be a seperate defense to the possession charge such as an unlawful search and seizure, lack of evidence that the drugs were in the possession of the defendant (perhaps the drugs belonged to a passenger), or a medical marijuana defense. Alternatively, if there is a valid defense to the DUI charge, so that a prosecutor agrees to dismiss it, drug diversion then becomes an option again for the possession charge.

If you have been arrested for felony or misdemeanor drug possession charges in Los Angeles in addition to DUI based on drugs, you need experienced guidance on how best to defend both charges. Please call Gold and Witham at 562 938 7771 for expert advice and representation.

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.