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Should I Plead Guilty To First-Offense DUI?

There Is No Penalty For Pleading “Not Guilty”

I have been providing free consultations as a DUI attorney in Orange County for nearly 20 years. One of the most common misconceptions held by those accused of DUI is that the judge will “hold it against them” if they plead “not guilty” to a DUI charge. The fear is that the judge will be harsher on a person who initially denies guilt  instead of owning up to their mistake right away–a concept ingrained in most of us by our parents and our community.  But when it comes to the criminal justice system, nothing could be further from the truth. In fact, the judge is strictly prohibited from punishing a defendant for exercising their Constitutional right to make the State prove guilt beyond any reasonable doubt. A plea of “not guilty” by you or your DUI lawyer merely means that you are not surrendering your rights at this time. In fact, an ill-considered guilty plea is the number one cause of suffering punishment that could have been avoided.

Benefits Of A “Not Guilty” Plea

Typically, almost all DUI cases look rock solid to the untrained eye. But your DUI defense attorney needs time to look beneath the surface to find any flaws in your case. Pleading “not guilty” at the arraignment affords your DUI lawyer the time to issue subpoenas and gather  important evidence. This “discovery” phase of a DUI case is where your DUI lawyer gets a complete look at the evidence the DA intends to use against you and determine the legal sufficiency and admissibility of that evidence.

For example, consider the panicked defendant who pleads guilty right away and says “but my blood-alcohol was way over the legal limit”. If only they, or their DUI defense lawyer, had subpoenaed the calibration records for the breath testing device they may have learned that the machine in their case had not been properly calibrated. Moreover, the breath test must be performed in a specific manner in order to rule out contamination by “mouth alcohol”. An improperly performed breath test, or the use of a machine not properly calibrated, are grounds for your attorney to have that evidence suppressed and possibly have the case dismisses. In this way, seemingly iron clad cases are sometimes dismantled by a skilled DUI defense lawyer.

Another example is in my recent case of People v. Dan E. (case results) Dan had been at a party. One of the men at the party called 911 and reported that Dan was starting fights at the party. They gave a description of Dan and his license plate number. The police responded and, as they entered the housing area, they saw Dan at the red light, leaving the area. The officer pulled behind Dan’s car and aimed his spotlight through Dan’s rear window. The officer then walked to Dan’s window. While speaking with Dan, the officer smelled alcohol. After field sobriety tests Dan was arrested for DUI and his blood-alcohol was above 0.20%.

Dan was pretty sure he was just going to plead guilty to first-offense DUI but I suggested he try to have the evidence suppressed because the stop was not supported by reasonable suspicion. The judge granted my suppression motion and the case was dismissed.

Free Telephonic Consultation With An Orange County DUI Lawyer

If you have been charged with DUI it is essential that, at the very least, you consult with one or more DUI lawyers in Orange County. At The Law Office of EJ Stopyro we offer a free and confidential telephonic consultation and case review. Call us at (949) 559-5500 today. Our main office is at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We also have meeting offices in Newport Beach and Orange.

Mandatory Consequences Of A Domestic Violence Conviction In California

What Is Domestic Violence?

Domestic Violence is broadly defined as abuse perpetrated against another person who is, or was, in a close relationship with you. This includes: a spouse or former spouse; a cohabitant or former cohabitant; a person who you are dating or have dated; a parent of your child; your child; and any person related to you within the second degree. (Family Code Section 6211) Typical domestic violence crimes include domestic battery, corporal injury, child endangerment, and criminal threats.

Because these domestic violence charges carry hefty jail or prison terms, most people charged with domestic violence are grateful if their Orange County domestic violence lawyer can negotiate a no-jail deal. This means in exchange for you pleading guilty to domestic violence you can avoid jail but are subject to the terms of probation. However, the way the law is written, pleading guilty to domestic violence means the judge must impose some pretty tough conditions of your probation. The judge has no discretion when it comes to these compulsory terms of domestic violence probation.

Mandatory  Probation Terms For Domestic Violence Conviction

California Penal Code 1203.097 requires that a judge impose specific terms of probation any time a defendant is convicted of domestic violence. A “conviction” occurs when a defendant pleads guilty or is found guilty by a jury. These mandatory terms include:

  1. Successful completion of a “batterer’s treatment program” which must be at least one-year in length. Moreover, if the program personnel decide that you would benefit from “additional sessions”, the judge can extend your treatment program obligation. Moreover, if the court finds that you are not benefiting from, or orange county criminal defense lawyercooperating with the program, your probation can be revoked and you can be sentenced to jail or prison.
  2. The judge must issue a domestic violence protective order that remains in place during the entire period of probation. The judge does have discretion on whether to allow you to live with the victim or to have any contact with them at all.
  3. The performance of a specific amount of community service is also mandated. The judge does have discretion to decide you much community service you must complete.
  4. Probation for at least three years (up to five years). This can be formal or informal probation.
  5. A fine of at least $500.00 must be imposed, on top of the thousands of dollars in other court fines and fees.

These probation terms are, of course, in addition to the standard probation terms, such as making restitution to the victim, giving a DNA sample, and cooperating with the probation department.

Avoiding Mandatory Terms Of Domestic Violence Probation

Typically, there are two ways for you and your Orange County domestic violence attorney to avoid these burdensome terms of probation. The first is to take the case to trial and win. The other is for your domestic violence lawyer to negotiate a reduction or change in charge. For example, if the DA agrees to change a domestic battery count to a simple assault or disturbing the peace charge, then none of these mandatory terms of probation would apply. Of course,, the success of this negotiation depends on the weaknesses in your case and your domestic violence lawyer’s ability to recognize and exploit them. (case results)

Free Telephonic Consultation With An Orange County Domestic Violence Lawyer

We offer a free telephonic case review and consultation with an experienced Orange County domestic violence lawyer. Call us today at (949) 559-5500. The consultation is completely confidential. EJ will be happy to explain the charges and the court process and help you explore your options. Our main office is at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We have meeting offices in Newport Beach and Orange.

First Time DUI License Suspension

Even a first time DUI will result in a driver’s license suspension in California. Actually, a first offense DUI results in TWO suspensions; an “APS” and a “conviction” suspension. Both of these are imposed by the DMV and not the court. In order to avoid both of these driver’s license suspensions you, and your DUI lawyer, must win the DMV hearing and avoid a DUI conviction in court.

The APS Suspension For First Time DUI

When a police officer arrests someone for DUI, the officer is required by California Vehicle Code Section 13353.2 to give that person a pink paper and take their California driver’s license from them. The fine print on this paper explains that the driver, or their DUI attorney, has ten days to request an APS hearing with the DMV. If no APS hearing is requested within this 10-day window, a driver’s license suspension will automatically begin. The start date for the APS driver’s license suspension is 30 days from the date of arrest.

The APS suspension is a four-month suspension. However, if the driver enrolls in an alcohol program, gets a special form of proof-of-insurance (called an “SR-22”), and pays $125.00 to the DMV, then the driver can shorten the suspension period to one month, followed by a period of “restriction”. A restricted license allows driving to and from work, the alcohol program, and any “work-related” driving. The length of restriction varies from five to ten months, depending on how well your DUI attorney coordinated the beginning date with any conviction suspension in your case.

If you or your Orange County DUI lawyer timely requested a hearing, then the DMV cannot issue an APS license suspension until and unless you lose that hearing. driver's license suspension first offense duiUnfortunately, these hearings are civil in nature and without many of the protections afforded in criminal court. The burden of evidence is not beyond a reasonable doubt but rather by a preponderance. Also, there is no jury. A DMV employee, called a hearing officer, acts as judge and prosecutor. Thus, DMV hearings can be difficult to win.

The Conviction Suspension for First Time DUI

Pursuant to Vehicle Code Section 13352, when a person is convicted in court of first time DUI, the DMV shall suspend their driver’s license for six months. The court immediately notifies the DMV of all first offense DUI convictions. Thus, the only way for you and your Orange County DUI attorney to avoid this driver’s license suspension is to get your charge dismissed, to negotiate a reduction in charge to a wet reckless or other traffic offense, or win at trial. Like the APS suspension, the conviction suspension can be shortened to one-month of actual suspension followed by restriction for five to 10 months.

Running Your First Offense DUI Suspensions Together

The periods of actual suspension for the APS and conviction suspensions can be run together, concurrently. However, this is only true where the APS suspension precedes the conviction suspension. You will NOT get credit for APS suspension time that happens before the conviction suspension begins. Thus, minimizing the length of actual suspension is something of an art form practiced  by DUI attorneys.

Free Consultation With An Orange County DUI Attorney

We offer a free and confidential telephonic consultation with an experienced Orange Count DUI attorney. Call The Law Office of EJ Stopyro at (949) 559-5500 today.

DUI Speed Enhancement: Vehicle Code 23582

The DUI Speed Enhancement

Section 23582 of the California Vehicle Code says that anyone who drives 20 miles per hour or more over the speed limit on surface streets, or 30 miles per hour or more on the freeway in a reckless manner while driving under the influence (DUI) must serve a mandatory minimum 60 days in jail, in addition to the punishment for DUI. This section is known by prosecutors, judges, and DUI lawyers as the “DUI speed enhancement.” This enhancement can turn what would normally be a first-offense no-jail DUI into a sixty day stay in the Orange County jail.

In my experience, any time a DUI arrest is made and the driver’s speed meets the requirements, the District Attorney alleges this DUI speed enhancement in the Complaint. However, section 23582 specifically requires “reckless driving” in addition to excessive speed. When I raise this point with the deputy DA they almost always say something along the lines of “well counselor, your client was DUI and driving that fast while drunk IS reckless driving.” But this simply is not true.

Reckless Driving Required

Reckless driving is defined in Vehicle Code Section 23103, which requires that the driver intentionally drove with wanton disregard for the safety of others. Whether DUI or speed can be used to show “recklessness” was addressed long ago in the case of People v. Clenney (1958) 165 Cal.App.2d 241, 248. With respect to Vehicle Code 23582 VC, California’s DUI speeding enhancement’s reference to reckless driving, the court said:

 “We hold that the crimes of driving an automobile while under the influence of intoxicating liquor and of reckless driving are separate, distinct offenses, established by different evidence. To drive an automobile while under the influence of intoxicating liquor (as defined by the California courts) is not, per se, a willful and wanton disregard of the safety of persons or property.”

Thus, the mere fact that a driver is DUI does NOT meet the recklessness requirement of the DUI speed enhancement.

The last time I handled a DUI speed enhancement I gave the deputy DA a copy of this case, rebutting their argument that DUI itself was reckless. The DA then changed his basis of reckless driving. He argued that my client’s hitting of the curb while being pulled over constituted the required recklessness.

Intentional Conduct

While accidentally bumping the curb may seem “reckless” in the way we commonly use the word, it does not meet the legal definition. Reckless conduct is different from negligence; reckless conduct is intentional while negligent acts, such as bumping the curb, are unintentional. Again, this issue is well settled in case law. In People v. Allison (1951) 101 Cal.App.2d Supp. 932, 935, endnote 9, the court said

“It is of course thoroughly settled that negligence, even though it be [criminal or] gross negligence, is not willful misconduct and does not amount to reckless driving. (Meek v. Fowler, 3 Cal.2d 420 [45 P.2d 194]; McCann v. Hoffman, 9 Cal.2d 279 [70 P.2d 909]; Porter v. Hofman, 12 Cal.2d 445 [85 P.2d 447].)”)

Wanton Disregard for Safety

Moreover, even if my client did intend to hit the curb, reckless driving requires a wanton disregard for safety. This means a driver must have a conscious awareness that their conduct is likely to injure another person but they intentionally ignore that risk. This, again, was established by case law a long time ago. In People v. Schumacher (1961) 194 Cal.App.2d 335, 340, the court held that with respect to reckless driving and Vehicle Code 23582 VC, California’s DUI speeding enhancement,

“[t]he term ‘wantonness’ is thus defined: ‘Wantonness includes the elements of consciousness of one’s conduct, intent to do or omit the act in question, realization of the probable injury to another, and reckless disregard of consequences.’ [Citation.] … The word ‘willful’ in this connection means ‘intentional’ [citations]. The intention here referred to relates to the disregard of safety, etc., not merely to the act done in disregard thereof.”

Thus, even if my client intended to hit the curb, (which of course is absurd), that conduct is not likely to harm another and would NOT constitute the wanton conduct required for reckless driving.

Free Telephonic Consultation With An Orange County DUI Lawyer

We offer a free and confidential telephonic consultation with an experienced Orange County DUI lawyer. Call The Law Office of EJ Stopyro today at (949) 559-5500. Our main office is at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675.

 

Understanding Criminal Protective Orders

Both criminal protective orders (CPO) and emergency protective orders (EPO) are issued by a judge or magistrate of the Orange County court. Typically they are made at the request of law enforcement or the District Attorney. Criminal protective orders and emergency protective orders are authorized by Penal Code section 136.2.

Emergency Protective Order (EPO)

Emergency protective orders are usually obtained telephonically by a police officer. Typically, the officer is at the scene of a domestic violence or assault call and is requesting the EPO on behalf of the victim. The officer must make a proper showing of probable cause to the magistrate before an EPO can be issued. The EPO offers short-term protection to the “protected person”. Emergency protective orders can last no longer than seven days.

Criminal Protective Order (CPO)

The defendant in a domestic violence or assault and battery case will be brought before a judge prior to the seven-day EPO expiration deadline. The DA will ask the judge to issue a long-term criminal protective order to replace the EPO. The defendant’s criminal defense attorney will have the opportunity to argue against a CPO, but the judge is the final arbiter of the issue. In cases of domestic battery, child neglect, or assault the judge will almost always issue a CPO. These orders can last up to three years, or until the defendant is convicted and sentenced. At sentencing, the judge may issue a new CPO that can last up to ten years.

Stay Away/Residence Exclusion

Both emergency protective orders and criminal protective orders can order the defendant to stay a specific distance away from the protected person or persons. For example “stay at least 100 yards from Jane Doe.” Even if the defendant shares a residence with Jane Doe, the defendant MUST stay away on pain of arrest.

No Contact

Both CPOs and EPOs can also prevent the defendant from having any contact with the protected person or persons. Even contact through third persons can be prohibited. In this case, simply sending a text message or asking a third person to deliver an innocuous message to the protected person will violate the order and subject the defendant to jail.

No Firearms

A criminal protective order or emergency protective order will ban the defendant from owning or possession any firearms while the order is in affect. A defendant must sell any firearms they own or possess to a licensed firearms dealer or surrender them to law enforcement.

Punishment for Violating a CPO or EPO

Penal Code 273.6 authorizes punishment of up to one year in the Orange Count jail for violating a criminal protective order or emergency protective order. If the defendant causes injury to the victim while violation the CPO or EPO a judge MUST sentence the defendant to at least thirty days in jail. Moreover, a second violation of an EPO/CPO is a “wobbler”. This means it can be prosecuted as a misdemeanor or as a felony, with up to three years in the state prison.

Modifying a CPO or EPO

The protected person can go before a judge any time and request modification of the protective order. The most common request is removal of the “stay away” order and to allow “peaceful contact”. This means the defendant can be with the protected person but cannot annoy, harass, or even yell at the protected person. Any contact other than peaceful contact will result in immediate arrest.

Free Telephonic Consultation With an Orange County Criminal Defense Attorney

If you would like more information on criminal protective orders call The Law Office of EJ Stopyro at (949) 559-5500. We offer a free and confidential telephonic consultation with an experienced Orange County criminal defense lawyer. We are located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We have meeting offices throughout the county.

The DUI Stakeout: Cops Parked at the Bar

DUI Detection

Most of us are all familiar with the typical DUI detection techniques—checkpoints and saturation patrols. After all, we hear about them on the news all the time. But what about the DUI stakeout? How about when a police officer parks right next to, or in the parking lot of, a bar? Is that actually a DUI detection tactic? And is it even legal? It certainly seems to be inherently unfair somehow. But in fact it is a legitimate, legal tactic for finding drunk drivers. And, as a former police officer, I must admit I used it many times.

How the DUI Stakeout Works

When I used the DUI stakeout it went something like this: I would park my car near, and in plain view of, a bar. I hoped that drivers going into the bar would see my fully-marked police car and NOT become impaired. I would also watch, and listen to, the drivers coming out of the club. I looked for any irregularity in balance or coordination and listened for any inappropriately loud or slurring of speech. Any sign of possible impairment was enough for me to follow that driver as they pulled away.

Then, I looked for any plausible legal reason for me to stop them. Perhaps the license plate lamp was out (my personal favorite), or maybe a busted taillight or expired tags. field sobriety tests dui stopOnce I stopped them, I would look for any evidence of alcohol use by the driver. An odor of alcohol from the driver was enough. Bloodshot eyes, slurred speech or fumbling with their wallet would also do. Then, it was on to field sobriety tests and often, a DUI arrest.

Legality of the DUI Stakeout

The DUI stakeout is frequently used by DUI detection officers throughout Orange County. The DUI stakeout is responsible for many DUI arrests and has been very controversial. But the legitimacy of the DUI stakeout was affirmed years ago by the United States Supreme Court. You see, this type of stop is called a “pretext stop”. The legal reason for the stop, (e.g. broken taillight), is just a pretext for what the officer really wants—to find evidence of another crime. In Whren v. United States (1996) 517 U.S. 806, the Supreme Court held that as long as there is a legal basis to support any stop, the officer’s true reason for making it doesn’t matter. Thus, the legality of the DUI stakeout, which relies on a pretext stop, was validated.

Your Rights During a Pretext Stop

Although an officer can stop you for any legal reason, they can only detain you for as long as it takes to address the legal reason. Unless the driver consents to a longer detention. For example, a driver stopped for a burned-out license plate lamp can only be held long enough to get a fix-it ticket. But if that driver agrees to do field sobriety tests or answer questions about what they drank or ate, then they have consented to a longer detention. You see, field sobriety tests and answering questions are completely voluntary. If, however, a driver politely declines to answer any questions or take any tests, the detention must end there. The cop must either let the driver go or make an arrest with very little evidence. This lack of evidence may make all the difference to the driver’s DUI lawyer in court.

Recording Conversations: What Is The Law

As a criminal defense lawyer in Orange County I am frequently asked, in one form or another, what the law says about recording conversations. The short answer is that in California it is illegal to eavesdrop electronically or record a conversation that is intended to be confidential. This prohibition includes in-person as well as telephonic conversations.

California Penal Code Section 632 states;

“A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, . . . shall be punished . . . [by fine or imprisonment in jail or prison]”.

The crime of illegally recording or electronically eavesdropping on a confidential conversation is a “wobbler”, meaning that it can be punished as a misdemeanor or a felony.

Electronic Eavesdropping

It is important to note that this law does not criminalize old-fashioned eavesdropping–that which uses no electronic devices. Only  eavesdropping by use of electronic device is criminal defense lawyeraddressed here. For example, if I were to hide under a bed to listen to a private conversation, I could not be charged under this law. However, if I were to put a tape recorder under the bed, or if I turned on the baby monitor and listened in another room, I could be charged with P.C. 632.

Consent To Recording Or Eavesdropping

Consent can be explicit or implicit. For example, if I call someone and ask if it is OK for me to record our conversation and they say “yes”, that is explicit permission. But if I answer my phone and say, up front, “this call is being recorded”, then if the caller continues the conversation they have consented to having the conversation recorded.

Confidential Communication

Section 632 only prohibits recording or electronically eavesdropping on “confidential” communications. The statute defines “confidential communication” as:

“. . . any communication carried on under circumstances  as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . [or in any proceeding open to the public] . . . or in any circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

So, whether a communication is protected by this statute depends on the substance of the conversation as well as the circumstances.

Free Telephonic Consultation With An Orange County Criminal Defense Attorney

The Law Office of EJ Stopyro offers a free and confidential telephonic case review and consultation. Call (949) 559-5500 to speak wit an experienced Orange County criminal defense attorney today. Our main office is located at 32072 Camino Capistrano, 2nd floor, San Juan Capistrano, CA 92675. We have meeting offices in Newport Beach and Orange.