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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.  

Blog Category:
11/17/2008
Vaughan de Kirby
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That we now live in an “information age” is something we’ve all heard. Aside from the obvious fact that technology is getting more advanced and more widespread, it’s not always clear what this oft-repeated phrase actually means. It’s not always clear what kind of “information” we’re talking about.

What can sound like an airy abstraction, in reality, refers to a very real state of affairs. Think, for example, of the growing importance of a person’s credit score. A credit score is a bit of information that can have a tremendous impact on a person’s opportunities and quality of life. Companies are making a great deal of money helping clients improve their credit scores, and people are happy to pay.

Living in an “information age” means that our standing in society—our freedom, opportunities, and quality of life—is to a great extent determined by certain pieces of information about each of us. Our medical records can determine whether we get insurance; our credit score can decide whether we receive a much-needed loan. Reducing a person’s life—or, to put it another way, reducing a person’s character and reliability—to a few numbers or bits of information is a marvelous way to increase efficiency in making the kinds of decisions that employers, insurance providers, and banks have to make. The costs, however, are high, especially to those whose records are unfairly blemished. 

And there is no mark more damaging, more limiting, than a criminal record. A criminal record—even if it’s just an arrest record for a DUI, without a conviction—can mean that a person is permanently treated like a criminal. And criminals, it should go without saying, have a hard time finding jobs and getting loans.

Living in an information age has tremendous advantages. But it is important that people have the resources to ensure that their records do not mean a life sentence. But this isn’t something that most people can do alone, nor should they have to. If you’ve been arrested and charged with a DUI, whether you’ve been convicted or not, it’s important that you talk to an expert about getting your record expunged. As minor as it may eventually seem once time has passed, it is impossible to anticipate when your record will eventually reemerge and the effect it will have. Expunging your record is not only a guarantee that your past doesn’t determine your future, but is one of the best ways of giving yourself some closure. It is the best way, in every sense, of putting your DUI behind you.



Category: General

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11/17/2008
Vaughan de Kirby
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For most of us, losing our driver’s license would be more than an inconvenience. It would interfere with our ability to earn a living and care for our families.

Unfortunately, the majority of people arrested for DUI in California assume that the fate of their driver’s license depends on the outcome of their criminal trial. Not so. In California, there is a separate hearing: the DMV hearing.

What’s worse, nearly everyone also assumes that the DMV hearing will be set up by the DMV, just as the date of their trial will be set by the judge. Again, not so. Here’s the truth:

IF YOU DON’T REQUEST A DMV HEARING WITHIN THE FIRST 10 DAYS AFTER YOUR ARRAIGNMENT, YOUR DRIVER’S LICENSE WILL BE AUTOMATICALLY SUSPENDED AFTER 30 DAYS.

The reason more people don’t know this crucial fact about DUI law in California is that it’s buried in the fine print of the temporary license that people receive at their arraignment (their first court appearance). From the government’s perspective, it’s a sneaky but effective way of simplifying the job of the DMV and suspending more licenses, regardless of guilt or extenuating circumstances. It’s unfortunate that the DUI Guilt Myth—according to which everyone suspected of DUI is guilty—is subtly built into DUI law itself.

For more information on the DMV hearing and the DUI Guilt Myth, we urge you to read the ebook available on this site: DUI/DWI Arrest Survival Guide—The Guilt Myth.

Above all, we urge you to find a qualified DUI attorney who will fight for your rights.



Category: General

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11/17/2008
Anders Johnson
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When your client is arrested for a DUI, there is a hidden threat of an insurance premium increase by the client's insurance company.  This will happen when there is an adverse result from the DUI criminal case, or the DMV hearing.  The result will require SR22 notifying the DMV that you have insurance.  Failure to have SR22 will result in a license suspension.

One solution, if your client needs SR22 insurance, is to obtain the SR22 insurance from somewhere other than the current insurance company.  There are insurance companies who cater to those with adverse DUI consequences, and the rates will be reasonable.  A good DUI attorney will discuss the insurance company policy options with their client to help save the client from even more grief.  This is important especially in locations such as San Francisco and the surrounding Bay Area, where rates are already extremely high.



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11/17/2008
Anders Johnson
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An option for DUI lawyers, especially at sententing, is the licensed substance abuse expert.  An expert can help at any DUI level, whether it's the misdemeanor first time DUI or the felony DUI with injury.  The purpose of the expert is to present a neutral source for the judge to bolster the argument that the defendant is in need of treatment, not imprisonment. 

Obviously, finding an expert who has the experience and credibility is crucial.  In the San Francisco Bay Area, there are many sources to find a qualified expert that will help sway the judge.  So, when first meeting with your client, think about whether a substance abuse expert could be helpful.



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11/17/2008
Bob Battle- Richmond Area
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A new proposed Virginia DUI Law mandates that if you are convicted of DUI in Virginia, you soon could be paying a mandatory minimum fine of $2,250.

 

The Virginia House of Delegates recently passed HB161 and now it’s up to the Virginia  Senate to decide if the measure becomes Virginia law. In addition, the measure proposes fines of $ 2,500 to $3,000 for vehicle-related felonies.

 

The measure would repeal the controversial Civil Remedial Fees and replace it with fees paid by all abusive drivers in Virginia, not just Commonwealth residents. The bill enumerates offenses for which fees shall be paid. The bill also requires payment of liquidated damage fees on the basis of the accumulation of driver demerit points. The bill allows a court to suspend fee payment when a person is convicted of driving on a suspended license and the suspension was a result of failure to pay a fine, DMV fee or liquidated damage fee.

 



Category: General

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11/17/2008
Vaughan de Kirby
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Let’s face it: police officers can be intimidating, especially when you’re already nervous. We tend to think that we have to do whatever the officer tells us to do. 

Wrong.

Once the officer has pulled you over, suspecting that you’re driving drunk, his primary goal is to collect evidence against you. He’s not looking to see if you’re drunk; he’s looking for proof that you are drunk. And all the evidence he collects will go in the police report—a document that can have a significant impact on the outcome of both your criminal trial and your DMV hearing. One of the best ways of collecting evidence of your guilt is a field sobriety test (FST).

So, doing what the police officer asks you to do—when it’s not required by law—is often not in your best interest. And this includes a field sobriety test.

Let me be clear: you are under no legal obligation to submit to an FST.

The thing to remember about field sobriety tests is that they are practically designed to make a person appear drunk. And it’s been shown that police officers hugely overestimate subjects’ levels of intoxication based on watching them do these kinds of tests. Another thing to remember is that it’s not how you actually do on the test that counts, but how the police officer thinks you do, because that’s what goes into the report.

(For more information about the history and science behind FST, read the article “Are Field Sobriety Tests Accurate?”)

If you choose to refuse to submit to a FST—which is often the wisest course of action—you can simply say to the officer: “I’m sorry, officer, but I’d like to speak to an attorney first.”

All too often, by simply doing whatever the officer says, people unknowingly help collect evidence against themselves—proof for a conclusion that the officer has already made: this person is guilty of DUI.

The best way to combat the DUI Guilt Myth—according to which everyone suspected of DUI is guilty—is to know your rights. Police officers usually count on the fact that most people don’t know their rights, which makes it that much easier to get people to waive them.

You don’t need to make the police officer’s job easier.

Your greatest responsibility is to make sure that you don’t wind up being another victim of the DUI Guilt Myth.



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11/17/2008
Vaughan de Kirby
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It all started in 1984 when the California Attorney General's office gave guidelines on what was then called “dunk driving roadblocks” to the CHP and local police departments. This was the birth of the sobriety checkpoints that we have today. Not only are they legal, but—from the police’s perspective—they also are successful in taking drunk drivers off the road and increasing the number DUI arrests throughout California. However, many feel that sobriety checkpoints are a violation of the driver’s constitutional rights.

In1987, the California Supreme Court issued a decision that narrowly approved sobriety checkpoints. The case of Ingersoll v Palmer required the Court to balance the civil liberties of individuals on the one hand, and the risk posed by drunk drivers on the other. In this 4-3 decision, the court stated, "We conclude that within certain limitations a sobriety checkpoint may be operated in a manner consistent with the federal and state Constitutions." The United States Supreme Court gave their stamp of approval in 1990 in the case of Michigan State Police Dept. v Sitz.

The Supreme Court based their reasoning on the argument that the purpose of the sobriety checkpoint was to stop drunk driving, rather than to arrest drivers for DUI. They used this argument to “balance” 4th Amendment rights against the apparent deterrent affect of sobriety checkpoints.

That is some background of sobriety checkpoints. You may not like them, but you may as well learn to live with them because sobriety checkpoints in California are legal and here to stay.

For more information, read our article “How Sobriety Checkpoints Work.”



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11/17/2008
Bob Battle- Richmond Area
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Not even the most crunching quarterback sack can compare to what NFL signal caller Josh Booty was hit with last week in California. After allegedly becoming combative with Orange County (Calif.) Sheriff’s Deputies, the former Louisiana State University and NFL signal caller was stunned with a Taser gun after being arrested on suspicion of misdemeanor driving under the influence, according to the Orange County Register.

Booty was arrested by the California Highway Patrol after being pulled over for a traffic violation on a California freeway. Booty is the older brother of University of Southern California quarterback John David Booty.  The older Booty is a sportscaster for the FOX Television Network in Los Angeles.

Taser is an electroshock weapon that emits a temporary, high-voltage, low-current electrical discharge to disarm an individual. The recipient feels pain and can be momentarily paralyzed, according to Wikipedia.

Orange County Sheriff Department Lt. Hal Brotheim said the 6-2, 221-pound Booty became irritated and started fighting with deputies while he was being moved from one cell to another.

"He became belligerent and uncooperative," said Jim Amormino of the sheriff’s department. During the altercation, Booty fell and hit his head on a table. Booty apologized and was taken to a hospital for treatment.

Booty played professional baseball for five years in the Florida Marlins' organization before enrolling at LSU to play football for two years. He then opted for the NFL, where he played three seasons with Cleveland before signing with Oakland.

Booty was released with a citation to appear in court.

 



Category: General

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11/17/2008
Vaughan de Kirby
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The Washington State Legislature wisely decided to reject a bill that would require people convicted of DUI to put special, florescent yellow license plates on their cars for one year.

Unfortunately, Senate Bill 6402, which thankfully died in Washington, is similar to bills that have already passed in several other states.

This relatively new idea of special license plates for DUI offenders is a supremely terrible one.

Please read the article “DUI License Plates—A Shameful Trend” for a discussion of the pitfalls and inherent unfairness of this absurd development in DUI law.

Rather than the expression of a sincere desire to limit drunk driving, DUI plates tend to be merely a tool of politicians who want to appear uncompromising and tough on crime.

Let’s hope that California politicians, should they ever contemplate DUI plates, would follow in the footsteps of there fellow lawmakers in Washington State. 



Category: General

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11/17/2008
Bob Battle- Richmond Area
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When a professional athlete is stopped in his expensive car in Miami Beach at 4:30 in the morning during the off-season, it can spell trouble. And it did for Buffalo Bills wide receiver Roscoe Parrish, who was caught by Miami-Dade police and charged with DUI last weekend.

A Miami-Dade County jail spokeswoman said Parrish was released on a $1,000 bond. The 25-year-old is a Miami native and attended both high school and college in Dade County. He was a second-round pick of the Bills in 2005.

Parrish led the NFL last year in punt returns, averaging 16.3 yards on 27 attempts. That average was also a Bills record. From scrimmage, he caught 35 passes for 352 yards and one touchdown for the Bills, who went 7-9. Parrish, who has played three years for Buffalo, became the second Bill ever to score a touchdown rushing, receiving and on a punt return when he accomplished that trifecta last year.

Though alcohol is not banned by the National Football League, the league’s substance abuse policy states, “The commissioner will review and could impose a fine, suspension or other appropriate discipline if a player is convicted of or admits to a violation of the law— relating to the use of alcohol.”

 



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11/17/2008
Vaughan de Kirby
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This, by far, is the most common question I’m asked as a DUI attorney:

If I get pulled over or arrested, what should I do?

I was recently asked this by a friend who knew someone who had been arrested for DUI in California.

The first thing I told him is to remember that everything the officer does—on the roadside and at the police station—is meant to ensure a conviction.

I told him the there’s a big imbalance of power between the officer and the person who’s being arrested, and that cops know how to use this coercive power to get people to do things that actually get them convicted.

To answer his question more fully, I wrote an article, stripped of all legal jargon, which provides a no-nonsense guide to protecting your rights and reducing the likelihood of a conviction.

Think you know what do if you were pulled over and arrested?

Find out.

What To Do If You’re Pulled Over and Arrested For DUI



Category: General

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11/17/2008
Anders Johnson
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Representing a client with a DUI in San Francisco and the Bay Area, and in California in general, can be daunting when "special allegations" are involved.  A goal of the DUI attorney would be to eliminate these special allegations, as they will invariably increase any sentence the client could receive.

Some examples of special allegations are:

  1. Driving over the speed limit
  2. Causing injury to another person, whether it is another vehicle, or the client's own passenger
  3. Having children in the car under a certain age.  The younger the child, the worse the sentencing options.
  4. Having a blood alcohol content limit above a certain level.  A BAC of 0.20, for example, is treated differently than a 0.10.
  5. Refusing to take a chemical test when asked

Obviously some of these could also result in a DUI charge that is a felony, versus a misdemeanor.

A good DUI lawyer will try to eliminate these special allegations if possible, and certainly will try to negotiate the allegations if it gets to that point.  Failure to do so could dramatically increase penalties for your client.



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11/17/2008
Bob Battle- Richmond Area
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Overruling decisions from a trial and appellate court, the State Supreme Court of Illinois determined the Horizontal Gaze Nystagmus (HGN) Test lacked the general acceptance in the relevant scientific community to be admissible absent proof to the contrary from the prosecution in a ruling from September 2007.

 

The State of Illinois Supreme Court overturned the rulings of a trial court and appellate court with regard to entering HGN results as evidence in determining the alcohol impairment of defendant Joanne McKown when she was arrested by police in June, 2002. McKown had veered into oncoming traffic, causing three motorcyclists to be thrown from their vehicles in Peoria County. Two of the three riders suffered serious injury.

High Court Orders Evidentiary Hearing

The state’s high court remanded the case to the Circuit Court of Peoria County, ordering an evidentiary hearing pursuant to Frye vs. United States (1923). Neither of the lower courts held such a hearing at McKown’s trial, accepting the reliability of the HGN test in determining alcohol impairment based on previous state court opinions. In both trials, the court admitted testimony of the arresting police officer who tested McKown for HGN.

At the first trial, McKown was found guilty of two counts of aggravated driving under the influence of alcohol, two counts of aggravated reckless driving, one count of reckless driving and one count of driving under the influence of alcohol. Damaging evidence consisted of three eyewitnesses and the opinion of the police officer who administered the HGN test at the scene.

Keep Your Eye on the Light…

The HGN test measures involuntary, erratic eyeball movement to the left and right while a miniature flashlight is shone into the person’s pupil. With a normal eye, there will be some “jerking” of the eyeball but in the eyeball of one who is intoxicated, there is more “jerking” to the left or to the right when the eyeball is closer to center position. Such movement also can be the result of other illnesses or causes. The test was devised by the National Highway Safety Traffic Association. Instructions are standard in the NHSTA’s DWI Detection and Standardized Field Sobriety Test Instructor Manual.

Witnesses at the accident scene said McKown was speeding. The approaching officer noticed an open can of beer inside the vehicle. That officer testified at trial the defendant had bloodshot eyes, slurred speech and breath smelling of beer. McKown admitted to having consumed three cans of beer before opening a fourth can after the accident.

 

 

 



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11/17/2008
Anders Johnson
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Previously, I pointed out that the State of Washington had thrown out breath test results because they were unreliable.  My hope is that this trend continues to make its way down to California and more particularly, San Francisco and the surrounding Bay Area.

There are numerous problems with the breath tests beyond the human error of conducting them.  Here's a short list of problems seen here in San Francisco which a DUI lawyer should explore in every DUI case:

  1. A police officer who is not properly trained to administer the test.
  2. Erroneous calibration of the machine, causing skewed results.
  3. Pre testing requirements not observed.  For example, the testee is burping, vomiting, or a significant amount of time has passed beyond the 15 minutes.
  4. Medical conditions of the testee which effect the result, such as gastro esophageal reflux disorder.
  5. Elevated body temperature of the testee, or something as simple as alcohol still in the mouth at the time of testing.
  6. Results skewed by such factors as absorption phase, other effectors on in the breath which resemble alcohol, and so on.

The list goes on.  Overall, it shows a faulty testing system that can be successfully challenged in California, and the results not used as a presumption of guilt of the client.

Time will only tell if the California courts follow Washington's lead.



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11/17/2008
Vaughan de Kirby
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Have you or someone you know been arrested for DUI or DWI?

No matter where you live—whether in San Francisco or Austin, Denver or Baltimore—if you’ve recently been charged with driving under the influence, the first thing that’s taken away from you is not your driver’s license.

It’s your peace of mind.

The feeling of insecurity that comes with not knowing what to do or what’s going to happen is one of the most painful aspects of a DUI charge.

Does this feeling sound familiar?

There are two things that you can do to regain your peace of mind.

  • First, and most importantly, find a experienced DUI attorney who’s an expert in DUI a law—someone who knows the process, knows the system, knows the laws, and knows how to fight for your rights.  There’s nothing like the feeling of having someone like this on your side. (For more information on how to pick a qualified DUI lawyer, please read this article: “How to Pick a DUI Attorney—Know What Questions to Ask.”)
  • Second, educate yourself. When it comes to facing a DUI charge, knowledge is not only power. Knowledge means less confusion and more understanding. It means less anxiety and more peace of mind.  (For an easy-to-read overview of DUI law (including the criminal charge and the DMV hearing) get yourself a copy of “DUI/DWI Arrest Survival Guide—The Guilt Myth.”—a free e-book written by experts.)

If you or someone you know was recently arrested for DUI, now is critical time.

Don’t wait another second to put your mind at ease.



Category: General

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11/17/2008
Bob Battle- Richmond Area
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Michelle Smith, The Assistant Chief Counsel for ICE confirmed recently at a CLE that a legal alien who pleads guilty or is convicted of either DUID (Driving Under the Influence of Drugs) or DUI and child abuse (e.g., a child passenger) is subject to deportation. The only "child abuse" in these cases is the presence of a child in the car of the intoxicated driver.


This can be a hidden consequence for a non-citizen client who pleads guilty to DUI with the aggravating factor of transporting a minor 17 years or under.  Many attorneys are not aware of the extreme consequence to the non-citizen of just pleading him or her guility to DUID or DUI with a passenger 17 years of age or younger in the vehicle.

 

 

 



Category: General

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11/17/2008
Anders Johnson
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When you are stopped by an officer, and he or she begins to question you about the amount of alcohol you have been drinking, does the officer need to read you your rights?  It is an often misunderstood aspect of Miranda that the officer needs to read your Miranda rights the moment the officer starts to question you.

Miranda rights, which inform a person of the right to remain silent, the right to an attorney, and notificaiton that anything that you say can be used against you in trial, are only required once a person is in custody, and not free to leave.  The failure of an officer to read a suspect those rights can result in all statements made during custody to be suppressed at a trial.

However, a person stopped on the road and initially questioned by an officer, is not in custody.  While one could make an argument that you are not free to leave, and technically in custody, the courts in California and elsewhere have determined that in mosts cases, the statements you make prior to arrest are admissible.

So what do you do?  You have a right to say nothing when you are stopped.  However, the problem with this is that if you are not intoxicated, you will be arrested anyway.  It is a conundrum that besets everyone when the officer turns his siren on.  If you ARE intoxicated, and know it, silence would be golden.  Many cases in California and the Bay area that I have seen involve statements made which clearly indicate intoxication.  And these statements are admissible.  Take the arrest, and let your attorney work on fighting the breath or blood test and the field sobriety tests, versus the statements you wish you had never made.



Category: General

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11/17/2008
Bob Battle- Richmond Area
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Manassas, Virginia DUI / DWI lawyer, T. Kevin Wilson, has successfully represented another client accused of DUI / DWI.  In this case, Mr. Wilson was successful in getting the blood test suppressed resulting in the client's Fairfax County DUI / DWI case being dismissed. 

T. Kevin Wilson's client was arrested by a Fairfax County Police Officer and accused of Driving Under the Influence of Alcohol and/or Drugs in violation of 18.2-266 of the Code of Virginia.  Her blood was drawn and an analysis performed at the Department of Forensic Science suggested three distinct drugs were present.   

Virgiinia DUI / DWI law permits a Circuit Court to enter an order allowing certain persons to withdraw blood in a DUI / DWI case.  However, the law in question requires the Circuit Court entering the order to act on the recommendation of a licensed physician.  In this particular case, the order which was presented to the Fairfax County General District Court as authorization for this particular blood draw had been entered by the Fairfax County Circuit Court in 2005, but was not on the recommendation of a licensed physician, as required by Virginia law.  As a result, the blood test was suppressed and the DUI / DWI case was dismissed, adding this particular client to the list of satisfied clients for T. Kevin Wilson. 

Since the court order authorizing many people to withdraw blood which was used in this case was entered by the Fairfax County Circuit Court back in 2005 and was still being used, it is reasonable to assume that other lawyers must had cases involving this particular order and failed to recognize the defect in the order.  If that assumption is true, the failure of those lawyers to recognize the defect in the order may very well have resulted in their clients being unjustly convicted.     

 



Category: General

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11/17/2008
Anders Johnson
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Once a person convicted of a DUI in California has finished their sentence, expungement or erasure of the conviction from one's record is the next step.  In California, prior convictions can be expunged if the following conditions are met:

1.  The probationary period of the conviction is completed.

2.  All of the conditions of the probation have been met, i.e. fines paid, jail sentence done, treatment program completed successfully.

3.  There are no other pending criminal cases, or criminal cases where probation is still active.

The advantages of expungement is to be able to say "no" to the question of whether you have ever been convicted of a misdemeanor when applying for a job.  However, expungement does not prevent the State from charging a new DUI as a second offense if within the 10 year period after the first DUI.  It also does not preclude admission of a conviction in immigration cases or some licensing applications.

If you live in the San Francisco or Bay Area, you should contact a qualified DUI attorney who can explain the process and benefits of expungement.

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11/17/2008
Anders Johnson
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Here are some fun facts that all people should know about DUI in California.

1.  If you are stopped by a police officer in San Francisco, for example, you can refuse to take the field sobriety tests. They're optional.

2.  In the  Bay Area, most car rental companies will not rent a car to you if you have a pending DUI.

3.  If you are arrested in California for a DUI, and had a prior DUI in the last ten years, you will be charged with a second offense DUI.

4.  If you are arrested for a DUI in California, you only have ten days to request a hearing before the Department of Motor Vehicles regarding your driver license.  If you don't, then you will automatically lose your license.

5.  In California, if you are arrested for DUI and your license is taken away, you will lose your license for ONE YEAR if you are under 21 years of age.

These fun facts show the importance of finding a DUI lawyer in the Bay Area who knows the laws inside and out. 

More fun facts tomorrow. 



Category: General

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11/17/2008
Anders Johnson
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Here are some more DUI facts that you should know when fighting a DUI in California and the San Francisco/Bay Area.

1.  Which DUI offender program you are ordered to go to by the Court depends on the BAC result, whether it's a first, second, or subsequent DUI, or a wet reckless (driving reckless with alcohol involved).  You can be ordered to a 3 month, 6 month or 18 month program.

2.  When the Court orders you to jail, there are alternate sentencing options available to straight jail time, such as electronic monitoring, a sheriff's work program, or community service.  These options usually involve extra fees that must be paid.

3.  Refusing to take a breath or blood test at the time you are arrested will automatically suspend your driver's license for one year.

4.   In California, there are no scores available for a field sobriety test.  Rather, your success on the tests is the subjective opinion of the arresting officer.

5.  To ensure a "successful" breath test at the police station, an officer must observe you for 15 minutes before administering the test.  This is to make sure you don't burp, vomit, or otherwise do something that will skew the result.

More DUI fun facts next week. 



Category: General

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11/17/2008
Anders Johnson
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The final installment of facts you need to know about DUIs in California and the Bay Area.

1.  Every glass of beer, shot of liquor, or glass of wine can increased your breath alcohol concentration by about 0.02 percent.

2.  Not only are there problems with the breath tests, but your blood tests results can ferment, increasing the reading artificially.

3.  Even if you have a driver's license from another state, you still have to request a Department of Motor Vehicle hearing within ten days, or your license will be suspended by your home state.

4.  For every drink that you have, it takes at least one hour to eliminate that drink and it's alcohol from your system.

5,  Many things can effect the results of a breath test, including a tongue piercing, which holds alcohol in the mouth.

As I noted before, the above facts point out the need to hire a qualified DUI lawyer to help you here in California and San Francisco.  Don't try to go it alone.



Category: General

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11/17/2008
Anders Johnson
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Assuming that you are found guilty of a DUI.  You're going to jail?  Not necessarily so in California, especially in the San Francisco and Bay Area, where space in the jails is limited.  There are sentencing alternatives available to satisfy the jail requirement.  Your DUI lawyer should negotiate an alternative sentencing option that meets your needs.

Work release:  If you have a significant amount of time to do, you can go to work by day, and sleep in jail by night.  This allows you to keep your job during this difficult period of time.

Electronic home monitoring:  This program keeps you at home and work, and living a relatively normal like, except for that ankle bracelet you're wearing.

Rehabilitation programs.  If you have a serious alcohol or drug problem, a rehab program can be credited toward jail time, and at the same time, you obtain benefits from a quality program.

Sheriff work program or community service:  This option gets you outside to help clean up the community or work in a community program.  It can be used not only for jail time, but also as an alternative to some of the fines.  Some of this may be laborious, but in the end, you go home after you're done.

Ask your DUI lawyer whether he can get you into any of these programs before you go in for sentencing.

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11/17/2008
Anders Johnson
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If you are fighting your first DUI charge in California, and lose your Department of Motor Vehicles hearing, you can have your license suspended for four months, or if you refused a test, one year.  This can cause incredible hassles and inconvenience to anyone who relies on their vehicle for employment or family.

The DMV hearing is thus crucial.  However, the "hearing" that you have has some obstacles which you must overcome.  FIrst of all, the prosecutor at the DMV hearing is . . . the hearing judge.  Really.  In addition, the hearing judge is not a lawyer or even a real  judge, but rather an employee of the DMV.  The hearing judge is evaluating your case while at the same time introducing all of the evidence against you.  In addition, evidence presented at the DMV hearing is for the most part reports of the officers, without the officers present.

Do you bother to fight at the hearing?  Of course.  DMV hearings can be won.  A lawyer can subpoena officers to appear at the hearing.  A lawyer can object to all the reports as hearsay, and these objections can be granted, making the DMV judge reverse any suspension.  If all else fails, the hearing gives you ample information for the criminal case to follow, and the weaknesses of the case for both sides.

The moral of the story?  Have the DMV hearing, irregardless of what your feelings are about the success of such an action.  The best thing that can happen is you win.  The worse thing that can happen is you garner information to fight the DUI criminal charge.  In other words, it's a win win.



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11/17/2008
Vaughan de Kirby
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It’s a relatively unknown fact that many states have two different levels of DUI—“standard” and “excessive”—determined the driver’s blood alcohol level. Those convicted of excessive DUI are typically penalized more harshly.

The .08 percent that most people are familiar with is for a standard DUI. In California, an excessive DUI currently requires a BAC of .2 percent, more than double the standard level.

Recently, California State Senator Jenny Oropeza (D-Long Beach) introduced a bill that would lower the threshold for excessive DUIs from .2 to .15 percent.

This change was recommended by the National Highway Safety Administration, and would make California’s DUI laws essentially identical to many other states in this regard. Lowering the threshold is also supported by research indicating that 58 percent of DUI deaths involve drivers with a BAC of .15 or higher. 

California’s current law prompts judges to consider imposing harsher sanctions on those with an excessive BAC, including ignition interlock devices. IIDs are often reserved for those with multiple DUIs, but first time offenders can be required to install them in their vehicles if there BAC was above the level for excessive drunk driving.



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