Orange County DUI with injury (Vehicle Code 23153) - chemical tests and the law.

January 12, 2010

DUI with injury - will you be charged if you have drugs in your system?

What if you were involved in an accident that involved bodily injury to somebody?  Can they take your blood and test it for alcohol and/or drugs?  What if there are traces of drugs in your system, but from days or weeks before?

Under the “implied consent” law, by having a driver’s license in California, you have consented to submit to a chemical test for alcohol and/or drugs if you are arrested for driving under the influence.

If a person was involved in a collision and the officer determined that alcohol and/or drugs was a contributing factor, and you’re arrested for DUI as a result, they have the right to request a blood sample be drawn for evidence.

You’re right that some drugs can stay in the system longer than alcohol typically does. It will be up to the DA to prove that whatever was in your system affected your ability to drive. The twist is that there are no levels for things like marijuana (THC) or even prescription or recreational drugs like there are for alcohol.

The DA would need expert testimony from a criminalist that whatever was found in your system put you “under the influence” for the purpose of driving.

Marijuana DUI cases are notoriously tough for the DA for the reasons you mentioned in your question - the length of time THC shows up in a test.

The other part of this is that whatever drug is in your system must have influenced your ability to drive. For example, if it was established that you were 100% NOT at fault in an accident, but THC was discovered in your system, how can they say that whatever level was in your system made you under the influence (and therefore unable to safely drive, which is required for a DUI)? That can be different than if the scenario was the same, but your blood test came back 0.10% for alcohol, since it’s a violation to drive with 0.08% or more in your system (and that section - 23152(b) of the Vehicle Code), even without “bad” driving.

The bottom line? Drug DUI cases add a new twist to a DUI case and a thorough analysis of the facts, chemical tests, legality of the arrest and blood sample collection will all be needed by your defense attorney.

info@joedane.com

(714) 532-3600

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Resisting Arrest - Orange County Defense Attorney

November 2, 2009

Resisting Arrest - Penal Code section 148(a)(1)

The crime of “resisting arrest” is covered in Penal Code section 148(a).  It is a misdemeanor to willfully and unlawfully “resist, obstruct or delay” an officer in the performance or attempted performance of their duties.  If convicted, the maximum possible sentence is up to one year in county jail and/or a fine of up to a thousand dollars.

Is not answering questions “resisting or delaying”?

There are different levels of police interaction and each has its own rules.
Consensual Encounters - the police need no justification or evidence to contact anyone, as long as they are in a place they have a lawful right to be.  The key to a consensual encounter is that you truly have to be free to walk away and not cooperate if you don’t choose to.  You don’t have to answer any questions.  When in doubt, ask, “Am I free to go?”  If they say yes and you don’t feel like sticking around, tell them to have a nice day and be on your way.  If they say you’re not free to go and/or they do something that makes it so you’re not free to go, then you are detained.

Detentions - a detention allows the police to temporarily hold you for investigation, but it is limited.  They must have “reasonable suspicion” of criminal activity and some information that connects you.  They can then detain you for a “reasonable” period of time while they confirm or dispel their suspicions.  During a detention, you are obligated to identify yourself (and failing to do so or falsely identifying yourself is a separate crime).  You are still not obligated to incriminate yourself, however.  During a detention, they are not required to read you your Miranda rights.  That doesn’t mean that the Fifth Amendment doesn’t apply to you though.  There’s nothing that says you have to help them gather evidence against you, whether you’ve been read your rights or not.  If you do choose to answer their questions, however, intentionally misleading or delaying answers may rise to the level of a misdemeanor resisting, delaying or obstructing offense.  Better safe than sorry - aside from answering truthfully who you are, if you’re under investigation or detained, ask for an attorney and keep quiet.

Arrests - Finally, if the police develop “probable cause” to arrest you, you can be taken into custody.

For more about interacting with the police, see this article.

Do I have to answer any questions at all?  Or will that be “resisting”?

As I discussed above, you must identify yourself truthfully during a detention.

If you’re arrested, they must advise you of your Miranda rights before any interrogation.  If you hear those magic words starting (”You have the right to remain silent . . .”), that’s your cue to keep quiet and request a lawyer.  There is nothing you can say or do at that point to get them to “un-arrest” you.  Either they have enough (and they think they do - that’s why they arrested you) or they don’t.  If they have enough, your time to explain will come, but you really should speak with an attorney first.  If they don’t have enough and they’re hoping you’ll say something to build their case for them… don’t.  It’s tough to undo a statement to police.  Don’t help them build a case.  Keep quiet.

What conduct is “resisting or delaying”?

If the police have enough information to detain you, they are entitled to use “reasonable force” to keep you there while they investigate.  If they inform you that you’re either being detained or arrested and you run, that can be enough to add on the charge of resisting or delaying.  A brief protest is usually insufficient, so if you face a resisting arrest charge because you questioned the officer’s actions or challenged his authority, you may have a valid defense.

What are the defenses?

The law says that a person may not use force against a police officer - that’s a separate crime of battery on a peace officer [Penal Code section 243(b)], but it is a defense to resisting arrest if the arrest itself was unlawful.

A person is NOT GUILTY of resisting arrest if the underlying detention or arrest was unlawful.  One of the elements to resisting arrest is that the officer must be in the “lawful performance” of their duties.  An illegal detention or arrest without sufficient evidence is unlawful and any resisting arrest is not technically against the law.  If the arrest was lawful, but the officer used excessive force in doing so, then they are not in the “lawful performance” of their duties and you would have a defense to a resisting arrest charge.

And finally - a person must know (or reasonably should know) that the person they’re resisting is a peace officer.  If an officer is undercover, fails to properly notify you that they’re the police and you run away - it’s NOT resisting or delaying an officer.

Every case is unique - to discuss your situation further, please contact me and schedule a case review.

Joe Dane

info@joedane.com

(714) 532-3600

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Driving on a suspended license (Vehicle Code section 14601) - Orange County

October 23, 2009

Vehicle Code 14601 (Driving on a suspended license) cases:

The California Vehicle Code makes it illegal to drive while your license is suspended by the DMV.  The possible penalties (fines, jail time, etc) depend on why your license was suspended, what specific code section you’re charged with, whether or not you can get your license back and whether or not you have prior convictions for driving on a suspended license.  Some of the more common sections include:

14601 (suspended due to a prior reckless driving conviction)

Sentence:  Minimum 5 days in county jail and a fine of $300 (plus penalty assessments); maximum 6 months county jail and a fine of $1,000.

14601.1 (This is the one that most suspensions fall under.  It can be for anything from failing to appear to non-payment of child support)

Sentence:  No mandatory minimum jail sentence, minimum fine $300 plus penalty assessments.  Maximum 6 months county jail and a fine of $1,000.

14601.2 (License suspended for prior DUI conviction)

This section is the most harsh of all the license suspension subsections.  If your license was suspended for a prior DUI and you are caught driving (or if your license was restricted and you were driving outside the restriction), the possible sentence is:

Minimum - 10 days county jail, $300 fine and the requirement that you install an ignition interlock device on any car you own or have access to for up to three years.  That ignition interlock requires physical installation (often with drilling a hole in your dashboard) and you would be responsible for the cost of maintenance and calibration (required periodically).  Maximum sentence for a conviction is 6 months in county jail, a thousand dollar fine and the ignition interlock device.

14601.3 (driving after suspension for being designated a “habitual traffic offender”)

If you get too many points on your license and are declared a habitual traffic offender by the court, your license can be suspended.  “Points” are generally moving violations and are listed under Vehicle Code section 12810.  If caught driving while under that suspension, the minimum sentence is 30 days in jail and a fine of $1,000. A second conviction within 7 years has a minimum of 180 days in jail.

14601.5 (suspended for excessive blood alcohol level)

If you were arrested for a DUI, your license was likely taken away and you were given paperwork to contest it being suspended by the DMV at an administrative hearing.  This is separate from any criminal proceedings in court.  If you lose (or don’t request) the hearing, your license will be suspended by the DMV.  If you are caught driving during that suspension, a conviction carries up to 6 months in county jail (no mandatory minimum) and a fine of up to $1,000 (minimum fine is $300).

Defenses

One critical element of a driving on a suspended license charge is that you must know that your license was suspended.  The DA has to be able to prove that you were put on notice somehow that your license was suspended before you were stopped.  It doesn’t count if you had no idea your license was suspended and the officer then notifies you as they were arresting you.

Notice can be in different ways.  Sometimes, notice is mailed to you by the DMV.  They will send any notice of suspension to the address on file with the DMV.  If it’s not returned or unclaimed, they will assume you got the notice.  What if you moved?  The Vehicle Code requires that you notify the DMV within 10 days of your new change of address.  They will try to claim that they sent it to your old address, so that’s good enough.  Not necessarily and this “notice” can sometimes be defeated.  Other times, the notice is done when you are at the DMV for other reasons and they see that your license has been suspended, but you haven’t gotten notice.  They will have you sign a form indicating you’ve now been put on notice that your license is suspended.  Police officers carry forms with them that they may have you sign if you’re caught driving, but there hasn’t been prior “good” notice served on you.  If you’re stopped after that, it’s tough to claim you didn’t know after being told and signing that form.

These sections are all misdemeanors as well.  Even under the sections that have no minimum jail time, a conviction will result in a misdemeanor on your record and a three year probation period.  The good news is that they can be reduced to infractions and/or handled in other ways to try and avoid the harsh penalties and conviction on your record.  Every case is unique, so to discuss your case further, call to set up a time to meet with me.

Joe Dane

info@joedane.com

(714) 532-3600

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Prostitution, solicitation and other sex offenses - Orange County Defense

October 18, 2009

Accused of any sexual offense?  Know how to best protect yourself.

Even the allegation of a sex offense can have devastating effects in your life.  Your family, friends, reputation, job and freedom are all at stake.  Child molestation [Penal Code section 288], rape [section 261], prostitution or solicitation [647(b)],  lewd conduct [section 647(a)], indecent exposure [section 314] or pornography charges [section 311.11] can carry substantial jail or prison sentences and lifetime sex offender registration.  How can you protect yourself if you are accused, arrested or charged with a sex offense?

First - Know your rights

Most importantly, the Fifth Amendment of the Constitution says you have the right to remain silent.  Yes, the police must warn you of your rights if you’re arrested and being questioned, but they’re not required to if you are not in custody.  That means that if the police show up at your door and want to chat with you, they may not give you the Miranda warnings.  Knowing you don’t have to answer their questions is your first step in protecting yourself.  They may say things like, “We just want to get your side of things” or “You don’t want the DA to not have your story when they decide to file charges, do you?”  Don’t buy it for a second.  Either they will develop enough evidence to arrest you and charge you or they won’t.  You don’t have to help them build a case against you.  There will be plenty of time for you to explain yourself and have your side of things heard, but giving a statement to the police during their investigation can only hurt you.

The same is true for a police request to search.  Unless they have a search warrant or other legal justification for a search, you are within your rights to decline a request to search.  Standard lines from the police include, “Well, if you have nothing to hide, you don’t mind if we look around, do you?”  Stand firm.  Politely, but firmly decline any request to search.  Your simple response should be, “Unless you have a search warrant, I do not consent to any search.”  Just like in declining a statement, why would you help them build a case against you?  This is true for any searches - of your house, car, computer or for your DNA.

Next, get help…. Legal help.

The police and District Attorney are working with their team to build a case against you.  You can sit back and wait, but that’s like sticking your head in the sand, hoping it will all just go away.  After discussing the facts in a confidential setting, I can give you advice on how we can best protect you - either to avoid any charges being filed against you in the first place or to best protect you when we go to court to fight.  I can help you arrange a bail bondsman so you may never have to go to jail at all while we fight your case.

You are also the best source of information to help yourself.  There are often witnesses, evidence or information the police overlook or don’t know about.  By working on your case from the earliest possible moment, you put yourself in the best position to defend yourself.

Most importantly - Keep quiet.

It’s not just a statement to the police that can be used against you - it’s anything you say to anyone.  Don’t discuss the allegations with anyone except your attorney in confidence.  Even if you are 100% innocent of these charges, keep quiet.  You don’t want your words to get misinterpreted, misheard or plain manipulated in a way so they sound bad.  The best approach is to say absolutely nothing.

This means no text messages, no facebook posts, e-mails, phone calls…. NOTHING.  You never know who you’re really talking to, who will read your words and how they may be used against you.  If the police and DA are involved, assume everything you say is going right to them.  Follow my golden rule:  Don’t help them get evidence to convict you.

Joe Dane

info@joedane.com

(714) 532-3600

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Rape and Child Molest allegations - Orange County Defense Attorney

October 15, 2009

Even just being accused of any sex offense - child molestation, rape, indecent exposure or lewd acts - can be devastating.  Just the mere allegation alone, even if completely unfounded, can have a tremendous impact on you.  Police investigation, search warrants, and a possible arrest are all real threats.

If convicted of most sex-related crimes, you will have to register as a sex offender for the rest of your life.  Most felony sex crimes are also “strikes” under California’s “Three Strikes” law and can not only impact you now, but forever if you ever face charges again.

If you have been accused of, are being investigated for or are currently facing any sex-related criminal charges in Southern California, you need to take action to protect your rights.  The police and District Attorney are gathering evidence to be used in a case against you.  I have years of legal experience specifically dealing with sex crimes.  There are ways you can protect yourself, even before your case reaches court.  I can be reached 24 hours a day for consultation or representation.  The stakes are high - don’t face the system alone.  Contact my office so we can discuss your situation.

info@joedane.com

(714) 532-3600

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