Friday October 25, 2013 - 2 DUI checkpoints are set to go up tonight in the cities of Costa Mesa from 8:00 pm to 2:00 am, and in Lake Forest from 6:00 pm to 2:00 am, at undisclosed locations, according to official statements. One more DUI checkpoint is slated for tomorrow night in Huntington Beach according to sources. Click on the links below to see the announcements from the City of Costa Mesa and the Orange County Sheriff's Department and please be safe out there.
http://www.costamesaca.gov/index.aspx?recordid=1104&page=40
http://ocsd.org/civicax/inc/blobfetch.aspx?BlobID=30775
Friday, October 25, 2013
Tuesday, August 27, 2013
What to do if you are pulled over on suspicion of drunk driving
August 27, 2013: I get asked this question all the time after people realize I am an Orange County DUI Lawyer, "hey Attorney Patel, what do I do if the cops pull me over after I've been drinking?" Well, as a preliminary matter, let's set two things straight. It is not illegal to "drink and drive" in California. It is illegal to drive while "under the influence" of alcohol and/or drugs or drive with a blood alcohol concentration of 0.08% or more. Having said that, the wisest move is to simply not drive while you're impaired by alcohol by designating a driver or finding some other safe alternative (taxi, motel).
Now, just say you have been drinking beers, say for a couple of hours, perhaps a quick shot in there too for good measure, and decide to drive home. You're subsequently pulled over for speeding and the police officer smells alcohol on your breath. What do you do now? Here are my top 5 suggestions if you are pulled over by the police after you've been drinking and she suspects you may be DUI.
Now, just say you have been drinking beers, say for a couple of hours, perhaps a quick shot in there too for good measure, and decide to drive home. You're subsequently pulled over for speeding and the police officer smells alcohol on your breath. What do you do now? Here are my top 5 suggestions if you are pulled over by the police after you've been drinking and she suspects you may be DUI.
- Be cooperative and respectful with the police officer(s)!!! I cannot emphasize this enough. Your level of cooperation, disruptive behavior, etc., will all likely be noted in the "Officer's Narrative", which in turn gets forwarded to the District Attorney's Office if you are to be charged. Depending on a host of factors, the DA might be willing to reduce the charge or even dismiss it.
- Now being cooperative with police does not entail that you should comply with all his "requests". You have no legal obligation whatsoever to take the Field Sobriety Tests or FSTs. These tests are designed to "fail" you and have shaky scientific foundations at best. Remember, you DO NOT need to take the Field Sobriety Tests, but decline so respectfully.
- Now, other than basic facts like your name, politely decline to answer questions about what you had to drink, when you were last drinking. Your answers will come back to haunt you.
- Refuse to take the Preliminary Alcohol Screening Device (PAS) test. This is the hand-held device the police officer will use by the roadside. You DO NOT need to submit to this test. However, keep in mind, when taken to the police station (or hospital in some cases), YOU MUST take either a blood, breath, or urine test pursuant to implied consent laws of California. You refuse the police station chemical tests, you will not only automatically lose your license for one year, you will also still be charged with DUI pursuant to VC 23152(a).
- Last, but most certainly not least, if charged with a DUI, strongly consider hiring an Orange County DUI Lawyer. Not only will an experienced DUI lawyer be in the best position to assess your case, he will be able to perhaps negotiate a reduced charge, reduced sentencing terms (i.e. no jail time) if you plead guilty, or perhaps even secure a dismissal or not guilty plea should your case go to trial. There are a myriad of defense strategies available and only an Orange County DUI Defense Attorney will know what strategy to employ and what defenses might be available given the facts and circumstances of your case.
If you or a loved one has been arrested on suspicion of Driving Under the Influence, don't wait too long to speak to a lawyer, you only have 10 days to request a DMV hearing (which can be used quite advantageously) which is the only way to prevent your license from automatic suspension. If you need to speak to a DUI lawyer, call 949-440-3240 or visit www.patelduilaw.com.
Tuesday, August 13, 2013
The Importance of a DMV Hearing after a DUI Arrest
When you are arrested for an Orange County DUI, it is critically important that you (or hopefully your Orange County DUI Lawyer) request an Administrative Per Se or APS hearing within 10 days of your arrest. At an APS hearing, the DMV will decide whether or not to suspend your driving privileges based on evidence received from the arresting agency. After the 10 days have passed, in almost all instances, you forgo your right to a DMV hearing. It is also important to note that a DMV hearing is independent of a court trial or proceeding, thus a Public Defender (assuming you qualify) will be of little help if you value your driving privileges since they will not appear on your behalf at the DMV hearing.
So what happens at an APS hearing and what's so important about it. At an APS hearing, a DMV employee will decide whether the department has enough evidence to suspend or revoke a persons driving privileges. Specifically, the DMV will determine the following:
1) Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 (DUI under 21 years age with BAC > 0.05%), 23152 (regular DUI), or 23153 (DUI with injury)?
2) Were you placed under lawful arrest?
3) Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?
So what happens at an APS hearing and what's so important about it. At an APS hearing, a DMV employee will decide whether the department has enough evidence to suspend or revoke a persons driving privileges. Specifically, the DMV will determine the following:
1) Did the peace officer have reasonable cause to believe you were driving a motor vehicle in violation of Vehicle Code Section 23140 (DUI under 21 years age with BAC > 0.05%), 23152 (regular DUI), or 23153 (DUI with injury)?
2) Were you placed under lawful arrest?
3) Were you driving a motor vehicle when you had 0.08% or more by weight of alcohol in your blood?
If the evidence proves all of the elements above, then the DMV will suspend the persons license for 4 months, assuming the individual has no prior DUI violations within a 10 year period. After serving a "hard suspension" of 30 days, an individual is eligible to receive a "restricted" license, enabling the person to drive to/from home and work and an approved alcohol program.
There are several important reasons to schedule an APS hearing. First, the driver or his attorney can access to "discovery" (evidence against you), much earlier than when the district attorney will provide it (in most instances). This allows an DUI attorney to fully examine the evidence prior to your arraignment at the criminal phase of the proceedings (which has several advantages in addition to early access). Second, your DUI Lawyer will be able to subpoena the arresting officer to the hearing. For a fee generally hovering around $250, the police officer will be required to attend the APS hearing and will go on the record concerning the events surrounding your arrest. This is important chiefly because if you decide to take your matter to trial, then your attorney will be able to "impeach" or discredit the officer's testimony at trial by comparing his statements he made at the APS hearing to those on the witness stand at trial. Third, and most obviously, you want to do all you can to preserve your privilege to operate a motor vehicle. If you do not request an APS hearing, then the DMV will automatically suspend your license after 30 days (when you're arrested on suspicion of DUI, the officer will hand you a "temporary license" good for 30 days). Last, by requesting the APS hearing, the DMV will "stay the suspension" of your driver's license following the results of your APS hearing. Depending on which Driver Safety Branch has jurisdiction over your matter, your APS hearing might not occur for 2-3 months, giving you valuable time to sort out your affairs before a potential license suspension.
If you have been arrested on suspicion of driving under the influence of alcohol and/or drugs, time is critical as has been shown above. Contact an Orange County DUI Lawyer at 949-440-3240 to see how he can help you avoid the serious consequences of a DUI.
Wednesday, July 31, 2013
The "Watson Murder Rule" and California DUI Law
July 31, 2013 - Not many people are aware that in California you can be charged with 2nd Degree Murder (15 years to life in the State prison). Many people have heard of vehicular manslaughter in the context of drunk driving, but where a defendant has a prior conviction or convictions for drunk driving, the State is free to charge them with 2nd degree murder.
In People vs. Watson, 30 Cal. 3d 290 (1981) the defendant ran a red light and barely avoided a collision with another vehicle. He then sped away reaching speeds of 84 mph in a 35 mph zone before striking another vehicle, killing the driver and her 6 year old daughter. His BAC was later determined to be 0.23%, much higher than the legal limit at the time. The DA decided to prosecute the defendant with 2 counts of murder. This set the stage for many years of back and forth legal wrangling before California enacted the "Watson Murder Rule". The Watson Murder Rule essentially states that when there is evidence of implied malice (i.e., pretty much not caring what your actions can do to human life, or a reckless indifference to actions that have a high probability of causing great bodily injury/death), the state can charge you with 2nd degree murder.
Implied malice can also be found when a defendant has prior convictions for DUIs. When a defendant is found or pleads guilty to a DUI in California, they will be "advised" that drinking and driving is dangerous to human life, and if you kill someone other than yourself, then you can be charged with 2nd degree murder. This sets the stage for the DA to charge someone with prior DUIs with a 2nd degree murder charge if death to another results from drinking and driving.
If you have been charged with a DUI that results in injury and/or death to another, it is absolutely imperative you retain qualified counsel that is aware of the defenses to DUI charges and 2nd degree murder. Contact an Orange County DUI Attorney to vigorously defend you against formidable charges.
In People vs. Watson, 30 Cal. 3d 290 (1981) the defendant ran a red light and barely avoided a collision with another vehicle. He then sped away reaching speeds of 84 mph in a 35 mph zone before striking another vehicle, killing the driver and her 6 year old daughter. His BAC was later determined to be 0.23%, much higher than the legal limit at the time. The DA decided to prosecute the defendant with 2 counts of murder. This set the stage for many years of back and forth legal wrangling before California enacted the "Watson Murder Rule". The Watson Murder Rule essentially states that when there is evidence of implied malice (i.e., pretty much not caring what your actions can do to human life, or a reckless indifference to actions that have a high probability of causing great bodily injury/death), the state can charge you with 2nd degree murder.
Implied malice can also be found when a defendant has prior convictions for DUIs. When a defendant is found or pleads guilty to a DUI in California, they will be "advised" that drinking and driving is dangerous to human life, and if you kill someone other than yourself, then you can be charged with 2nd degree murder. This sets the stage for the DA to charge someone with prior DUIs with a 2nd degree murder charge if death to another results from drinking and driving.
If you have been charged with a DUI that results in injury and/or death to another, it is absolutely imperative you retain qualified counsel that is aware of the defenses to DUI charges and 2nd degree murder. Contact an Orange County DUI Attorney to vigorously defend you against formidable charges.
Tuesday, July 23, 2013
LA County DUI Arrests Up More Than 40% over Last Year
July 23, 2013 - Los Angeles County DUI (Driving under the Influence of Alcohol and/or Drugs) arrests surged 43% over 2012 figures, according to preliminary data released by the Los Angeles County Sheriff's Department, during the 4th of July long weekend. From midnight Thursday (July 4, 2013) to midnight Saturday (July 6, 2013), DUI arrests totaled 490, compared to 343 for the same period last year. The total number of DUI arrests countywide topped 685 people (midnight Thursday to midnight Sunday), compared to 503 arrests last year, when other county law enforcement agencies reported their figures.
Expect more aggressive enforcement from the LA County Sheriff's Department in the coming weeks as part of their 18 day summer campaign slated to end on Labor Day, as the agency steps up DUI enforcement and adds more DUI checkpoints at undisclosed locations.
If you have been arrested on suspicion of driving under the influence of alcohol, contact the Law Offices of Kapesh V. Patel for aggressive, results-driven representation at 949-440-3240 or visit www.patelduilaw.com.
Expect more aggressive enforcement from the LA County Sheriff's Department in the coming weeks as part of their 18 day summer campaign slated to end on Labor Day, as the agency steps up DUI enforcement and adds more DUI checkpoints at undisclosed locations.
If you have been arrested on suspicion of driving under the influence of alcohol, contact the Law Offices of Kapesh V. Patel for aggressive, results-driven representation at 949-440-3240 or visit www.patelduilaw.com.
Thursday, July 18, 2013
So what exactly is a "Wet Reckless" anyway?
You might have heard a friend talk about it (especially if you're friends with a DUI lawyer) or maybe you've come across the term while researching DUI law. A wet reckless, or VC 23103.5 is a "plea to a lesser charge", the "greater charge" being violations of VC 23152(a)/(b), your common DUI offense. So what exactly is a wet reckless? (and no, it's not an adult movie). A wet reckless is a subdivision of VC 23103, or reckless driving. A wet reckless, unlike a DUI, carries significantly less penalties than does a DUI, and is only offered as a "plea bargain" to a regular DUI charge.
So what are the advantages to a wet reckless? Well, there's no mandatory DMV suspension with a wet reckless. The "alcohol school" MAY be shorter (6 weeks compared to 3 months for 1st time DUI). The fines and penalties will be lessened. Plus you'll be looking at shorter jail times and probationary periods.
But WHAT is the REAL advantage of a wet reckless? The true beauty of a plea to wet reckless involves cases where the accused has prior DUIs. Let me give you an example. Suppose Mr. X goes out and parties one night (very hard I might add), proceeds to drive home, and is arrested. If he's convicted of a DUI, that DUI will "stay on his record" (at least with respect to sentence enhancements) for 10 years. Now Mr. X, being the socialite that he is, violates California drinking and driving laws again in 4 years from his initial DUI conviction. He's subsequently convicted for VC 23152(b) (DUI) and will have to spend at least 96 hours in jail (or an alternative such as "house arrest"), in addition to the other fines and penalties he'll face (e.g. 18 month drink-driver program plus DMV suspensions of two years, restriction-eligible in 1 year).
Here's where it gets interesting. Say Mr. X after another 5 years (so we're within the 10 year "look back" period) gets arrested and charged for yet another DUI. A 3rd DUI, among other things, carries with it a 120 day minimum jail sentence. In addition to 4 months minimum in jail, he could lose his job (how's he going to be able to go to work while he's in jail?). However, depending on his BAC and various other factors, if through the skill and expertise of his DUI lawyer, the DA agrees to let him plead to the lesser charge of a wet reckless (instead of his 3rd DUI), Mr. X would face little to no jail time. Sounds like a good deal don't you think? Plus, for all the other reasons previously mentioned (less fines, less alcohol school, less probation), he'd keep his job too. That's the true advantage of a wet reckless - a few days in jail vs. 120, you can do the math on this one.
Now, we're not done. Mr. X, in a jubilant mood due his not having to go to jail, goes out and parties hard again, drives home, arrested and charged with another DUI. DA shows no mercy, and he gets convicted of what he thinks is his 3rd DUI. Sounds good right, better than a felony right (4th DUI is a felony)? No, wrong. A wet reckless is a "priorable" offense, meaning the wet reckless plea he took in place of a 3rd DUI (saving him the 120 days in jail in our above example) now does a 180 and is considered a "prior DUI offense" for sentencing purposes. So that "3rd DUI" he got is in essence, his 4th DUI for sentencing purposes, because the wet reckless counted as a prior DUI offense. He's looking at a quite a bit more than 120 days in jail for a felony DUI conviction...
So the wet reckless can be great in some situations, but offenders with prior wet reckless convictions must be very careful to avoid future DUIs, since that "wet reckless" will come back to bite them in the derrière.
If you have a DUI related question or need to speak to a DUI attorney, visit www.patelduilaw.com or call 949-440-3240.
So what are the advantages to a wet reckless? Well, there's no mandatory DMV suspension with a wet reckless. The "alcohol school" MAY be shorter (6 weeks compared to 3 months for 1st time DUI). The fines and penalties will be lessened. Plus you'll be looking at shorter jail times and probationary periods.
But WHAT is the REAL advantage of a wet reckless? The true beauty of a plea to wet reckless involves cases where the accused has prior DUIs. Let me give you an example. Suppose Mr. X goes out and parties one night (very hard I might add), proceeds to drive home, and is arrested. If he's convicted of a DUI, that DUI will "stay on his record" (at least with respect to sentence enhancements) for 10 years. Now Mr. X, being the socialite that he is, violates California drinking and driving laws again in 4 years from his initial DUI conviction. He's subsequently convicted for VC 23152(b) (DUI) and will have to spend at least 96 hours in jail (or an alternative such as "house arrest"), in addition to the other fines and penalties he'll face (e.g. 18 month drink-driver program plus DMV suspensions of two years, restriction-eligible in 1 year).
Here's where it gets interesting. Say Mr. X after another 5 years (so we're within the 10 year "look back" period) gets arrested and charged for yet another DUI. A 3rd DUI, among other things, carries with it a 120 day minimum jail sentence. In addition to 4 months minimum in jail, he could lose his job (how's he going to be able to go to work while he's in jail?). However, depending on his BAC and various other factors, if through the skill and expertise of his DUI lawyer, the DA agrees to let him plead to the lesser charge of a wet reckless (instead of his 3rd DUI), Mr. X would face little to no jail time. Sounds like a good deal don't you think? Plus, for all the other reasons previously mentioned (less fines, less alcohol school, less probation), he'd keep his job too. That's the true advantage of a wet reckless - a few days in jail vs. 120, you can do the math on this one.
Now, we're not done. Mr. X, in a jubilant mood due his not having to go to jail, goes out and parties hard again, drives home, arrested and charged with another DUI. DA shows no mercy, and he gets convicted of what he thinks is his 3rd DUI. Sounds good right, better than a felony right (4th DUI is a felony)? No, wrong. A wet reckless is a "priorable" offense, meaning the wet reckless plea he took in place of a 3rd DUI (saving him the 120 days in jail in our above example) now does a 180 and is considered a "prior DUI offense" for sentencing purposes. So that "3rd DUI" he got is in essence, his 4th DUI for sentencing purposes, because the wet reckless counted as a prior DUI offense. He's looking at a quite a bit more than 120 days in jail for a felony DUI conviction...
So the wet reckless can be great in some situations, but offenders with prior wet reckless convictions must be very careful to avoid future DUIs, since that "wet reckless" will come back to bite them in the derrière.
If you have a DUI related question or need to speak to a DUI attorney, visit www.patelduilaw.com or call 949-440-3240.
Saturday, July 6, 2013
DUI Arrests Up From Last Year
July 6, 2013: The California Highway Patrol (CHP) announced that 564 people were arrested statewide for driving under the influence of alcohol and/or drugs (DUI), compared to 479 people the previous year, from 6:01 pm Wednesday to 6:00 am Friday. The CHP is operating under its "Maximum Enforcement Period" (MEP) whereby the agency utilizes all available resources to target suspected drunk drivers. Last years MEP only lasted 30 hours because the Independence Day holiday fell mid-week. This year's MEP will run longer because it includes the weekend.
Needless to say, if you drink to the point of being impaired, don't drive. And if any reason you are arrested on DUI charges, you need to act fast to save your driving privileges. Speak to a reputable DUI defense attorney at 949-440-3240 or visit www.patelduilaw.com for more information on DUIs.
Needless to say, if you drink to the point of being impaired, don't drive. And if any reason you are arrested on DUI charges, you need to act fast to save your driving privileges. Speak to a reputable DUI defense attorney at 949-440-3240 or visit www.patelduilaw.com for more information on DUIs.
Wednesday, June 26, 2013
July 4, Independence Day - A day of hot dogs, fireworks, and DUIs?
Every 4th of July, the California Highway Patrol (CHP) designates the Independence Day holiday as a "Maximum Enforcement Period", in which the CHP will use all available officers to crackdown on drunk drivers. This year will be no different. Last year, the CHP arrested almost 500 people for driving under the influence, a significant reduction compared to 2011, in which the agency arrested around 1600 people.
Keep in mind, it's not only the CHP on the lookout for those drinking and driving. Expect numerous DUI checkpoints statewide, stepped-up enforcement from local county sheriffs and police departments, as well as Caltrans "reminders" to "Report Drunk Drivers. Call 911".
The best solution is not to drink and drive - call a cab, designate a sober driver, or spend the night at a friends house (assuming you are there drinking). If you are pulled over on suspicion of drinking and driving, and you've been drinking, remember these 3 rules
Keep in mind, it's not only the CHP on the lookout for those drinking and driving. Expect numerous DUI checkpoints statewide, stepped-up enforcement from local county sheriffs and police departments, as well as Caltrans "reminders" to "Report Drunk Drivers. Call 911".
The best solution is not to drink and drive - call a cab, designate a sober driver, or spend the night at a friends house (assuming you are there drinking). If you are pulled over on suspicion of drinking and driving, and you've been drinking, remember these 3 rules
- Be polite and courteous with the police officer (your demeanor and cooperation are often noted in the police narratives and may help with plea bargaining);
- Politely refuse to take the "Field Sobriety Tests" (FSTs); and
- Politely refuse to take the ROADSIDE "Preliminary Alcohol Screening" device test. (but please remember California's "implied consent" law wherein you are required to take a blood, breath and/or urine test at the police station or at a medical facility, or risk losing your driving license for one year and still face DUI charges).
The police officer should tell you that these tests are voluntary, most often though, they do not. If you are arrested on suspicion of driving under the influence of alcohol and/or drugs, call 949-440-3240 to schedule an appointment to speak to an experienced and successful DUI lawyer or visit www.patelduilaw.com.
Above all, please remember it is dangerous to drink and drive, so please have plenty of fun, but be safe.
Wednesday, June 5, 2013
Federal Agency Proposes Changing BAC Limits to 0.05%
June 5, 2013 - The National Transportation Safety Board (NTSB) recommended in May that states change their "Per Se" Blood Alcohol Concentration (BAC) legal limits to 0.05%, down from the current 0.08% level that is uniform nationwide. While states have the final say on DUI laws, the federal government has used its considerable leverage by conditioning federal highway funds apportioned to states on their adopting the 0.08% limit. Conceivably, they could do the same for the 0.05% NTSB recommendation. But they will have a fight ahead of them. Numerous industries would be affected by a reduction in the BAC per se legal limits, including the beverage, restaurant, bar and nightclub, and sporting event industries. With powerful lobbyists at their disposal, and politicians friendly to their cause (and money, of course), it is unlikely that the NTSB would be able to lower the limits...for now.
As it is, many people don't realize that you can still be arrested and convicted for driving under the influence even if your BAC is under the 0.08% limit (CVC 23152(b)). Under CVC 23152(a), "[i]t is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combines influence of any alcoholic beverage and drug, to drive a vehicle." As you can see, one can still be charged with DUI in spite of their BAC being under 0.08%, if they "were under the influence."
If you or someone who know has been charged with a DUI, you must act fast to: a) retain your driving privileges; and b) fight your pending criminal charges to minimize the potentially severe penalties associated with a DUI conviction. Call 949-440-3240 to speak to a licensed attorney or visit www.patelduilaw.com for more information on DUIs.
As it is, many people don't realize that you can still be arrested and convicted for driving under the influence even if your BAC is under the 0.08% limit (CVC 23152(b)). Under CVC 23152(a), "[i]t is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combines influence of any alcoholic beverage and drug, to drive a vehicle." As you can see, one can still be charged with DUI in spite of their BAC being under 0.08%, if they "were under the influence."
If you or someone who know has been charged with a DUI, you must act fast to: a) retain your driving privileges; and b) fight your pending criminal charges to minimize the potentially severe penalties associated with a DUI conviction. Call 949-440-3240 to speak to a licensed attorney or visit www.patelduilaw.com for more information on DUIs.
Wednesday, May 15, 2013
Welcome to the Law Offices of Kapesh V. Patel's DUI defense blog serving Orange, Riverside, San Bernardino, and Eastern Los Angeles Counties. It is the hope of this blog to provide useful, relevant information about DUI defense, changes to drunk driving laws, DUI crackdowns and sobriety checkpoints, and useful information concerning the ever-changing science behind DUIs. Over the coming weeks and months, this blog will feature more and more useful content, please check back periodically. In the meantime, feel free to visit this office's website at www.patelduilaw.com or call 949-440-3240 if you have a DUI matter that needs attention.
Subscribe to:
Posts (Atom)