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 From an emotional standpoint, a case where someone is accused driving under the influence and killing another person is one of the toughest.  With the victim, you usually have someone who did not deserve to die.  They are often young, in the prime of their lives.  They are usually also close to the driver.  The victim is often a spouse, girlfriend, boyfriend, or sibling of the accused.  Unfortunately, that person is not available to express forgiveness to the driver.
 
As for the driver, you often have a person who has never been in trouble in his life.  He may be college educated, have a great job, and a loving family.  But for this horrible incident he would have continued to be an upstanding citizen.
 
Recently, a San Jose woman pled guilty to gross vehicular manslaughter after hitting and killing a 79 year old grandmother.  She is waiting to be sentenced by a Santa Clara County judge.  Her maximum possible sentence is 12 years in the state prison.  In fact, the judge is precluded from granting this woman probation unless he finds “unusual circumstances” where the interests of justice require it.  According to statements, the family of the victim has forgiven the defendant, and believes that the victim would forgive her as well.  Unfortunately, California DUI sentencing law provides somewhat less opportunity for the Court to forgive her. 

As a former prosecutor, I can tell you that, regardless of the outcome, nobody wins in these cases.  Regardless of what side you are on there is nothing but tragedy in these cases.  An innocent victim loses her life, and a contrite survivor is cast into the hell of the California prison system.  

11/17/2008
Anders Johnson
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"I've been asked to get out of the car - do I have to?"  Yes, or you will likely be arrested.  If the officer pats you down, do not physically resist.  At this point, the officer has most likely determined you are under the influence.

The officer may then ask to search your vehicle.  You have the legal right to refuse the search if you choose.  The officer can not arrest you simply for refusing to consent to a search of your vehicle.  If the officer has probable cause to believe you have committed a crime, your car can be searched without your permission or a warrant.  However, if the officer improperly searches your vehicle, and finds evidence in the car, it can be excluded at trial.

Now that you are out of the car, the next phase in all likelihood are the field sobriety tests.  What happens next?  Stay tuned.



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11/17/2008
Anders Johnson
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Okay, you've been arrested and released.  You are now charged with DUI.  You have written down everything that you can remember that happened during your stop by the California police officer.  You hire your attorney.  Your attorney gives you a copy of the police report. 

As you are reading through the report, done on a computer template, you notice that much of what is there is not true.  Why?  Because police officers are using pre-written arrest reports in DUI cases. They are writing out a batch of similar reports detailing intoxication  symptoms like red eyes, slurred speech, odor of alcohol.  Also, the "details" of failed field sobriety tests, checking off procedures properly done, and the inevitable failure on the tests.  Really all the officer is doing is simply filling in the names, dates, etc., when they actually make an arrest.

With computer templates and word processing forms which have all of the “facts” already entered, with blanks to fill in for name, date, place, a busy officer has no choice.  The question is what you can do about it.

This is the reason why you need to write everything down as soon as possible after your arrest.  A good DUI attorney will know to intensely question the officer, who, several months later, will have to rely exclusively on his canned report, and won't be able to go beyond the report.  Don't let the officer get away with his laziness.  Your right to an accurate report is crucial to defending yourself.



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11/17/2008
Anders Johnson
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Once you have been taken to the police station in California, you will be asked to take a test to measure your blood alcohol content.  Can you refuse to take the test?

In California, as well as other states, there is an "Implied Consent" law.  The law states that by driving a motor vehicle in California, you have already given your consent to take a test.  Going back on your word by refusing to take a test will result in your driver's license being suspended for a longer period of time. 

The officer will read you an advisory about the test, and in this advisory is the warning about the consequences of not taking a test.  Pay attention to the advisory, and look to whether the officer correctly communicated your rights, misleads you, exagerates the penalties, or makes any threats or inducements.  If he or she does, then a judge may throw out the results of any test you decide to take.

The decision is ultimately yours.  If you believe you are not intoxicated, take the test.  If you are unsure, or are quite intoxicated, and are not concerned about the loss of your license, then you need to weigh the test versus the consequences of not taking the test.

 



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11/17/2008
Anders Johnson
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You have just been released from jail after your arrest for DUI.  You will now be charged by the District Attorney, and you will go to court.  Besides the emotional costs that you are now suffering, there are other costs to prepare for.

The obvious initial costs will be hiring a DUI attorney.  Even if you choose to fight the DUI on your own, there are other costs to expect:  Fines, penalties and surcharges.  The costs of a DUI alcohol treatment program.  The costs involved in losing your license, and in getting your license back.  You may have to install an ignition interlock device.  Your automobile insurance will go up.

What can you do to avoid these costs?  The best way to attempt to avert these costs is to not go it alone.  Hire a qualified California DUI attorney immediately, and try to keep your costs limited to the legal fee.  Hopefully, if you are successful, the other costs will go away.

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11/17/2008
Anders Johnson
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In California, a DUI stop results in field sobriety tests.  I've discussed certain factors which affect the results, including the pure subjective aspect of them.  There are also other factos affect a performance.

Imbalance during the tests can be caused by various factors.  Weather conditions such as wind, extreme temperatures, a slippery surface, and rain.  Shoes, whether they be the height and shape, or the material of the show.  Illnesses, such as a cold, arthritis, physical injuries, age, or othe defects.  Emotional considerations, whether it be anger, embarassment, nervousness, and other feelings.

Another factor can be caffeine, which has an adverse effect on the tests in combination with alcohol, making one's muscular coordination and timing suspect.  In addition, there is the "circadian rhythim" or in layman terms, the biological clock.  Doing the tests late at night or early in the morning effect performance, as does jet lag.

A DUI attorney will look into whether any of the above factors apply, and further place into question the validity of the field sobriety tests.



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11/17/2008
Anders Johnson
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You're driving home, and out of the blue an officer stops you.  You've done nothing wrong.  What happened?  In this age of cell phones, you probably were "ratted out" by an informant.  It has become more common in California for another motorist to notify police of a possible DUI.  You know, that motorist you accidently cut off, or the one who was behind you when you swerved slightly.

While informants are important, an officer still needs a reason to stop you.  However, since the officer is now observing you closely, any Vehicle Code violation will suffice to initiate a stop.  In some cases, where the informant is reliable or known to the police, that may suffice for a stop by the officer.

 



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11/17/2008
Anders Johnson
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California law enforcement, looking for potential drunk drivers, can have their job made easier by how the driver uses his or her driving skills.  Detecting a potentia drunk driver at night is evidenced by some of the following driver mistakes:

  1. Accelerating or deaccelerating quickly
  2. Inappropriate or constant use of brakes
  3. Barely miss hitting an object or another vehicle or pedestrian
  4. Being too close to the center line or lane marker
  5. Drifting in one's lane
  6. Inappropriate signalling, or no signalling at all
  7. Tailing another car too closely
  8. Stopping at the wrong place
  9. Driving too slowly, at least 10 miles per hour under the speed limit
  10. Not having headlights on
  11. Weaving on the road
  12. Making a turn too wide
  13. Making sudden inappropriate turns
  14. Drive into opposing or cross traffic

The above mistakes don't mean a driver is intoxicated, but they do ensure a road side stop by law enforcement.



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11/17/2008
Anders Johnson
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In order to obtain a conviction for DUI in California, you must have sufficient control over your vehicle, i.e., driving.  You do not have to be driving a vehicle at the time you are confronted by law enforcement. 

One possibility for "sufficient control" is being seated in the driver's side with the engine running.  You could also be charged if the engine is running, and you are seated in the passenger side.  If you are in a vehicle on the side of the road, and unconscious, you coud be charged with DUI.

An informant could have contacted the law enforcement and notified them of a possible DUI.  You could have just parked in your driveway, and exited your vehicle when you are stopped by law enforcement. 

The possibilities are endless, however there must still be evidence showing that you were driving.  Sometimes this is simply a normal stop on the road.  Other times, a prosecutor needs to be more inventive.  A good DUI attorney will make sure that the prosecutor meet their burden with corroborating evidence.



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11/17/2008
Anders Johnson
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The California State Assembly is considering a new bill, AB2784, which would force California judges to impose a sentencing requirement given hard-core offenders: ignition interlocks.

Ignition interlocks are breathalyzers placed in the vehicle that measure a driver's blood alcohol concentration. If a breath sample registers above a pre-set level, the engine will not start. These devices were originally developed for chronic drunk drivers with high alcohol levels.

Proponents of the bill claim the measure will fight the drunk-driving problem by keeping dangerous drivers off the road.  However, mandating interlocks for first offenders doesn't focus on those dangerous criminals.

Other states are lobbying for mandatory interlocks in every car in the state. Indeed, some car manufacturers are developing new interlock technology that could be manufactured as standard equipment. The federal government has approved a $10 million grant to promote development of this technology. 

As the popularity of punishing DUI offenders grows, the California Assembly is simply following the rest of the country.  In doing so, the rights of every driver are at risk.

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11/17/2008
Anders Johnson
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Once a California law enforcement officer determines that you are under the influence, and arrests you for DUI, disposition of your vehicle becomes an issue.  The officer has the option of impounding your vehicle.  On a first DUI, impoundment is not likely.  The officer will usually immobilize the vehicle or tow the vehicle temporarily depending on where the stop is.

A second or subsequent DUI puts the vehicle at risk of impoundment.  A court can ordered impoundment, but can also make exceptions.  Obviously, if you don't own the vehicle, the Court cannot order impoundment.  In some situations, you can be allowed to drive an impounded vehicle if the court orders it, your driving privileges are not suspended, and an ignition interlock device is installed.

To save your vehicle, and to avoid loss of the vehicle, it is wise to consult with a DUI attorney.



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11/17/2008
Anders Johnson
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Summertime is here, and more and more people are heading to the waters of California.  Take your friends out on your boat, and bring along alcohol.  Before you do this, you should be aware that in California, Boating DUIs carry penalties similar to those for automobile DUI, including possible jail time, fines, a boating safety program, and driver's license suspension.

In addition, a boating DUI is counted as prior DUI in the future.  In other words, if you have a prior DUI, it can be used to enhance punishment in a second DUI.

To assist a police patrol boat in stopping your vessel, such actions as turning your craft too fast, or turning it aggressively, losing control of your vessel, having violations in your vehicle equipment, speeding, not using safety equipment, and other law violations, will ensure a stop. 

The same DUI defenses that a San Francisco DUI attorney would use in an automobile DUI can be employed:  the field sobriety tests, the chemical test results, and who was actually driving the vessel, among other things. 

While drinking in a boat is legal, driving impaired is not.  If you are stopped for a boating DUI, treat it just like a regular automobile DUI, and find a San Francisco DUI attorney to assist you.  Enjoy the summer, and be safe.

 



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11/17/2008
Anders Johnson
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You have been charged with a DUI in California.  You have a court date coming up.  You were not driving at the time the office came up to you.  How can you be charged with "driving" under th influence?

There are actually several ways this can happen.  The most common way is that the officer was following you and observing your driving.  You perhaps made some errors, swerving, driving too slow, no turn signals, or some other traffice violation.  Perhaps there is a mechanical defect with your vehicle.

Another way to prove you were driving under the influence is if you were "called in" by another driver or pedestrian via cell phone.  The officer will receive the tip, and then locate you.  If you are still driving, he will follow you and make his own observations.  If you have stopped, and the person who called you in is reliable or known, he will come up to your car and begin the process.  At a trial, the person who called will have to be a witness in order to show probable cause  for the officer to detain you and administer sobriety tests.

Finally, it comes down to location, location, location.  Unless you can prove someone else was driving, your presence in the driver's seat with the car engine off on the side of the highway could be sufficient to prove you were driving.

There may be other ways to prove driving as well.  It is the job of the District Attorney to prove beyond a reasonable doubt that you were driving.  If it is an issue, don't handle it yourself.  Contact a qualified California DUI attorney to tackle your case.  If it can't be shown that you were driving, you can't be convicted of a DUI in California.



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11/17/2008
Anders Johnson
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You've just been released from the San Francisco police department after your DUI arrest.  Avoiding common mistakes that persons with pending DUIs in California make is critical.

Hire a qualified San Francisco DUI lawyer.  Hiring a good DUI attorney to help you through the process gives you  a much better chance of having the charges eliminated or reduced. You may think that representing yourself will be easy and much cheaper, but you are fighting against the San Francisco District Attorney's Office and an officer who is trained to obtain a conviction.  The end result?  You lose.

Handling your own case is not wise.  There could be mistakes that the officer made, errors in the BAC result procedures or the machine itself.  These mistakes will never be discovered, and you will pay a lot of fines and other financial consequences as a result.  A qualified San Francisco DUI attorney can reduce the consequences significantly.  Nothing is "cut and dried." 

Another mistake is waiting until your court date or afterward to hire a DUI attorney.  If you speak to an attorney immediately after your arrest will allow you to relate facts to your attorney that are fresh in your mind, and help your lawyer to assist you in your case.  Another mistake is waiting too long, and missing the ten day time limit to challenge your license suspension with the DMV.

Don't take advice from friends or associates who had previous DUI convictions.  Each case is different.  A qualified DUI attorney knows the laws, and the potential defenses you have.  Your friends don't.

Missing court appearances is another mistake people make after a DUI arrest. A judge can order an arrest warrant for you if you fail to appear, unless you have an attorney appear on your behalf. 

You also can enhance your DUI woes by continuing to drive while your license is suspended or revoked.  It is a separate criminal charge with its own penalties, including jail time.  In addition, your license suspension will be increased.  I know of one person with eight separate convictions for driving while suspended who is now spending several months in jail. 

Avoid the mistakes.  Hire a qualified San Francisco DUI attorney.

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11/17/2008
Anders Johnson
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You have been released from jail after being arrested for a DUI.  You now want to hire a qualified San Francisco DUI attorney.  Your main objective is to find an attorney to protect your rights, evaluate your case, and either get rid of the DUI charge or make sure any punishment that might result from a conviction is as light as possible.

To be sure you have the right DUI attorney in your corner be sure to ask the attorney a few questions:

·               Does your DUI attorney handle a lot of DUI cases?  The reason for this is that a lawyer who rarely handles DUIs will not be aware of and informed about DUI laws.   You want your attorney to be up on the laws so he or she can protect you.  Is the attorney familiar with individuals in the District Attorney’s Office or the San Francisco Police Department?

·               Ask the potential DUI attorney if he or she personally will be handling your case or will another attorney in the firm with less experience handle your case.

·               Ask the lawyer when and if he or she has DUI cases that resulted in favorable outcomes.  This will help you to find out if your attorney could represent you effectively in a DUI trial, should that be necessary, or get you a good plea offer, in the alternative.

·                Ask the DUI attorney specifics about what services he employs for expert toxicologists,  DMV license specialists and other expert witnesses.

·               Will your attorney visit the site where you were arrested?  Will your attorney look at and examine the facts in your case?

·               What does the attorney charge, and will there be other fees down the road, such as expert fees. The lower the fees, the higher the chances your attorney is not a highly qualified attorney.

·               Find out if the attorney will be available to speak with you after you have paid a retainer fee.  Can you contact the attorney by telephone, e-mail, or in person?

The sooner you call a DUI attorney, the quicker the attorney can start working on your behalf. Contacting an attorney immediately can potentially protect your driving privileges.  Don’t delay.



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11/17/2008
Anders Johnson
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When you are arrested for a DUI in California , you will lose your license.  However, that is not the only thing you should be concerned about.  

If you have a driver's license in California, any serious violations of the driving laws will accumulate “points” to your driving record.  Enough points could result in losing your privilege to drive.  


Most driving offenses, such as hit and run, reckless driving, and driving under the influence, are designated as 2 points and will remain on your record for seven years from the violation date. Most other offenses are designated as 1 point and will remain on your record for three years from the violation date. For example, an at fault accident will get you one point on your record.

You are considered a negligent operator by the California DMV if you have the following point count totals:

4 points in 12 months, or

6 points in 24 months, or

8 points in 36 months

A qualified San Francisco DUI attorney can explain the point system to you, and determine how best to proceed with your DUI keeping in mind your license record.

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11/17/2008
Anders Johnson
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Refusing a DUI Chemical test in California

When a person is arrested for DUI in California, they are asked to submit to chemical testing, whether it is a breath test or blood test.

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11/17/2008
Anders Johnson
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Underage DUIs and drinking in California

Some interesting facts that underage drinkiers should know regarding DUIs and drinking in California:

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