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· DRUNK DRIVING · D.M.V. HEARINGS ·
Over 30 Years Experience
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Introduction
- You Have
Only 10 Days to Contact the DMV
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Penalties. Costs, Attorney's fees. etc..
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First Offenses at DMV and at Court
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Refusal or Failure to Complete Test
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Zero Tolerance, MIP and Minors
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Prior Convictions, Violations of Probation, Failures to
Appear and Multiple Violations
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Felony Convictions
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Cases Filed with Juvenile Courts
- Private
vs. Public Defender / Accident Cases and Your Insurance Company
1.
Introduction
First, I am required to tell you by the California state Bar Association, my
name is Joe VanDervoort; I am an attorney in good standing. I have practiced
DUI and DMV law in excess of 30 years. My state bar license # is: 54720,
listed as John Joseph VanDervoort.
I am further required by the California state Bar to advise you that the
information I give you pertains only to California state law and cases in
the state of California. Further, the law I am giving you is
generally applicable to all cases, but may not be applicable to the
specific, individual, legal, or factual background of any matter you are involved in.
As to your particular matter, you should definitely consult with an
experienced private specialist in the field of DUI and DMV immediately, and
not rely on any general information given here.
Further, I am required to advise you that this website does not create an
attorney/client relationship or privilege between us, and that this is a
legal advertisement and a solicitation for attorney's fees and services
within the meaning of the law as it pertains to attorneys practicing in
California.
If you have been arrested for DUl, driving with a .08 blood alcohol, zero
tolerance, minor in possession of alcohol, marijuana or some other drugs, or
have a Department of Motor Vehicles suspension or revocation pending against
you for too many points. or accidents, you need the services of an attorney
immediately.
If you have been arrested for DUI, 08, or zero tolerance, you only have ten
calendar days from the day of your arrest within which to take action to
protect your driver's license.
The Department of Motor Vehicles may restrict, suspend or revoke your
license prior to any Court date, and may have already taken it and given you
a temporary license. Such restriction or revocation can be from four months
to life without a hearing. At DMV you have no right to a jury
trial; you have no right to a public defender.
DMV and Court actions can
remain on your driving record for life and can be used as
enhancements or prior convictions, similar to a "strike," for ten
years or more, and have other serious consequences, including loss of insurance,
insurance costs, fines in the thousands of dollars, mandatory jail
sentences, drunk driving school for up to thirty months, and probation of
up to five years. If you are convicted of a Felony DUI, you can be sentenced to state prison and be placed on parole upon your release. If you receive a conviction for driving under the
influence or .08, your record cannot be cleared or expunged in the future,
ever,
and for purposes of job applications, is considered a "crime".
If you were arrested for DUI .08 or zero tolerance, your lawyer has ten
calendar days in which to contact DMV in Sacramento, and not locally. If
your lawyer does not contact DMV within ten days of your arrest, you
automatically forfeit any meaningful chance to save your license. Some lawyers argue that you
have thirty days from the date of your arrest to contact DMV, but if you do
not contact DMV in Sacramento within ten days, you will not get an extension
of the thirty day right to drive pending the hearing which may not be set
for several months; thus leaving you without a license.
If you are a multiple offender, refused to take or failed to complete a chemical test of your
blood, breath or urine, or you are a minor, the consequences of your case
are even more severe. If you decide to contact DMV yourself, do not allow
them to confuse you or stall you. Demand the right to an in-person hearing
immediately. You have many rights and defenses at DMV and Court. Loss of
license, suspensions, convictions, fines, jail sentences, interlock devices,
and even probation, can often be avoided, or mitigated. Many cases result in
acquittals, or reductions of charges and reinstatement of driving
privileges.
It is critical that you speak to an experienced lawyer who is a specialist
in DUI and DMV law immediately. If you have one, call him, if you don't,
contact us.
I have been an attorney for over 30 years, specializing in DUIs and DMV
cases, I don't do probate, divorce, business law and most other kinds of
criminal cases. Although it is often best, for Court, to get a criminal
lawyer near your own jurisdiction, DUI and DMV cases can be handled by this office
in any County in the State of California, and if you don't have a
specialist, please contact us to handle your matter. If we need a lawyer
for Court in another jurisdiction or area, we will associate or refer you to
one who specializes in DUI.
2. You Have Only 10 Days to Contact the DMV
Upon arrest for DUI, .08, or zero tolerance, if you hold a valid, unexpired
California driver's license, the arresting officer will take it and send it
to the Department of Motor Vehicles in Sacramento. You will receive a
temporary license from the officer which expires thirty days from the date
of arrest. You must have an attorney contact DMV in Sacramento, and not
elsewhere, within ten calendar days if you wish to meaningfully contest this
matter and you probably should have a private attorney who specializes do
so; even if the officer fails to take your license you still have 10 days.
You, of course, can contact DMV yourself, but if you do you will get a
lengthy set of tape recordings, and then a paid employee at the Department
of Motor Vehicles will come on the line and ask you a bunch of technical
questions and probably convince you to give up your right to an in-person
hearing or any hearing at all, or perhaps set a telephone hearing which
may, or may not be ok, but should be decided upon by an attorney who knows
the strategic differences and whether or not an in-person or telephonic
hearing should be set, and whether the hearing should be set in the
jurisdiction nearest where you resided at the time of the arrest, or in the
jurisdiction nearest the place at which you were arrested, which may make a
big difference in the outcome of your DMV hearing. If you do not have an
attorney contact, or you don't contact the Department of Motor Vehicles in
Sacramento (not some other DMV headquarters), within ten calendar
days, you will automatically lose your license at the end of thirty days from the date of
your arrest. The hearing probably will not be set for several months, and
you will not be given an extension of your driving privilege unless you
contact them within ten calendar days. This information is on the temporary
license the police officer gave you, but is quite confusing and hard to find
for most non-attorneys when reading the form. Occasionally DMV will grant a hearing after 10 days, so always call and try to get a hearing. Our office is often successful in doing so.
Contacting the Court or some local DMV office, or the arresting agency, will
have no effect on your loss of license. The only way to save your license is
to contact the Department of Motor Vehicles in Sacramento, and the only number you can
call, without an attorney, is the one that is on the upper right hand
corner, at present, on the temporary license the police officers are
supposed to give you. Sometimes the police officers, for one reason or
another, particularly in case of an accident, don't give you a temporary
license with the information on it, or they give you one that is misplaced
because of the fact there was an accident, you're in the hospital, it is
lost during the booking procedure, or misplaced by the person arrested.
There are certain unlisted phone numbers that are given to attorneys who
specialize in DUIs to contact the Department of Motor Vehicles immediately
and directly to set up hearings, but I am precluded, by law, unfortunately,
from divulging those phone numbers, and if you attempt to contact DMV
yourself, without an attorney, you will have to go through the procedure by
using the phone number on the temporary license or call Sacramento
Department of Motor Vehicles and ask for the Administrative Per Se DUI
telephone number.
If you call, or have your attorney call, within ten days of your arrest, the
thirty-day temporary driver's license privilege will be extended until at
least the date of your DMV hearing. This should be done in every case
because it gives you time to get investigation reports, arrest records, what
attorneys call "discovery" from the prosecutor and from the Department of
Motor Vehicles to properly prepare your case.
If you don't call within the first ten days, but call within the first
thirty days, you might be given a hearing, but in many cases, you can get
your license back by the time you get to the hearing procedure, and will
have already been suspended several months, which, of course, is no help to
your immediate driving privilege.
If you don't call within the first thirty days after your arrest, you will
ordinarily not be given a hearing date at all and will automatically lose
your license for a period of four months, or more. An experienced lawyer can
sometimes get you a hearing even if the time period has passed, so it is even
more essential to contact an attorney immediately.
3. Penalties. Costs, Attorney's fees. etc..
An adult first offender will be losing his license if proper procedures are
not followed for four months, but under specified conditions that can be
explained by this office, or any other DUI specialist, you can get your
license back after a thirty day suspension. A person found to have refused
or failed to complete a chemical test (blood, breath or urine) without a
valid legal defense, will lose their license for one year, without any
possibility of a restricted or part-time license. A person under the age of
21, whether arrested for zero tolerance, .08., or .05, depending on which
law is applicable, will lose their license upon a first offense for one year.
Under some limited circumstances you can get a license in a zero
tolerance matter if there is a critical need. This can be explained to you
by this attorney or any attorney specializing in DUI and DMV law.
If you are a second offender, your license will be suspended for a period of
at least one year, and perhaps more, depending on your driving record. If
you have three or more, your license can be revoked for three years to life. A commercial license can be revoked for life for a second-time DUI.
In Court, a first offender is looking at a wide variety of possible
penalties, depending on prior convictions, driving record, the level of
blood alcohol shown by a chemical test, the age of the offender, whether or
not an accident was involved, and whether any other offenses such as driving
without insurance, or driving with a suspended or previously revoked license
were also involved, and/or whether there were any children in the
automobile. As a general rule, subject to some exceptions, there is a
mandatory jail sentence, extensive fines, probation for as long as five
years, conditions of probation involving (1) no drinking whatsoever; (2) not
entering into any place where the primary item of sale is alcohol; (3) going
to DUI School; (4) going to AA; (5) participating in educational
psychological, or psychiatric testing or programs;
(6) anti-abuse drug
program; (7) community service; (8) abstinence from alcohol; (9) submission
to drug and alcohol detection tests; (10) submission to unlimited searches
and seizures of your home, car, self, or anything under your control, and;
(11) requirements in regard to certain placing of devices in your vehicle. We can usually keep you out of jail.
Convictions and revocations stay on your DMV record for life, or at least
ten years, in spite of what you may have heard. Convictions cannot be
successfully expunged from your driving record, except where there are
constitutional infirmities, and the procedures are best left to an attorney.
Insurance companies will undoubtedly discover your conviction when you ask
for an SR-22 form to get your license renewed, and may cancel you. If you
violate any of the terms and conditions of your probation, you can be
brought back to Court at any time for probation violations, and imprisoned
and fined.
You are not entitled to an attorney at public expense at any DMV proceeding,
although you may get a public defender at Court. Most public defenders have
way too many cases. Some, fifty or more a day. They are often inexperienced,
and in "cow" counties in particular, have a conflict, in that they must rely
on the local Judge or Supervisors to appoint them or issue them contracts,
thus diminishing their capabilities to represent every client to the maximum
potential.
Fees for experienced private lawyers vary a lot depending on whether the
case is in a metropolitan or rural area, and upon the attorney's experience
and the facts of the case. Make sure and hire an attorney on a flat fee
basis and never on an hourly basis. Make sure and get a written fee
agreement in advance and a quotation as to the costs for any out-of-pocket
expenses.
Attempt to hire an attorney who specializes in DUIs and DMV and does not
make his income as a jack-of-all-trades. Since a DUI is one of the most
economically and socially devastating events in your life, suffice to say,
"he who attempts to represent himself has a fool for a client". A DUI case
is far more complicated than any other misdemeanor and many felonies and;
has much more long lasting social and economic consequences and should
result in the hiring of a private, experienced attorney more than in any
other type of case.
4.
First Offenses at DMV and at
Court
The first offense DUI or .08 can result in the loss of your license for four
months, though it can be returned on a restricted basis after thirty days,
if proper procedures are followed by your attorney. Although the minimum and
maximum fines and consequences in Court range from forty-eight hours to six
months in jail, the standard first offense with a Class C driver's license
results in 48 hours in jail, a fine ranging in the neighborhood of Twelve
Hundred Dollars to Two Thousand Dollars, with a first offense DUI School
usually approximating thirty hours of school at a price in the neighborhood
of Two Hundred Dollars to six Hundred Dollars, depending on the
jurisdiction. Most Courts also impose Court probation, without a probation
officer, with conditions that you violate no laws, don't drink and drive
with any measurable amount of alcohol, and submit to a search or seizure by
any police officer or probation officer without a warrant or probable cause.
Many jurisdictions add other conditions. Some jurisdictions allow community
service, work alternatives, or home arrest electronic monitoring in lieu of mandatory jail sentences, and often
an experienced lawyer can get a restricted license or other alternative to
jail time. The standard Class C suspension by DMV, is totally separate
and apart, since Courts usually do not suspend on the first offense, is for
four months. If your attorney can arrange for an SR-22 from your insurance
company, and the payment of a DMV fee, your license can usually be
reinstated, if you have no other restrictions or holds on the license after
a thirty day period of suspension. Often an attorney on a first offense can
get your case reduced to an offense other than driving under the influence,
which has no mandatory jail, and has a greatly decreased sentence or fine,
and oftentimes do away with such requirements as DUI School, going to AA
three times or more a week, and other restrictions that Courts often put on
DUI offenders. Attorneys can often plea bargain the case so that it results
in the inability of the Department of Motor Vehicles to suspend your license
for any period of time by entering into an agreement that collaterally stops
the DMV from suspending. Only an experienced lawyer is familiar with these
procedures. If you go to Court and proceed to a jury trial and are acquitted
before the DMV takes action against your license, the DMV is precluded from
any suspension under normal circumstances.
Although there is legislation pending, as of June, 2006, if you have a misdemeanor DUI, .08., MIP, or any other type of misdemeanor,
you never have to appear in Court or at a DMV hearing, but may do so through
your attorney. Many Court hearings are merely procedural and it is a waste
of time for you to appear at them unless there is going to be a meaningful
hearing where the attorney needs your assistance listening to witnesses or
participating as a witness yourself. Unfortunately, in most Counties,
although the law provides differently, you will be ordered to appear at each
hearing if you have a public defender, or, of course, if you represent
yourself. At a DMV hearing, you are entitled to an evidentiary hearing and
the issues are if you took a chemical test, or whether the policeman had
reasonable or probable cause to detain you, and whether the arrest was
lawful, including the advisement of certain rights, and whether or not the
blood, breath or urine test showed a legal and accurate .08 or above, if you
are an adult, or zero tolerance or .05, depending on your age and
circumstances, if you are a minor. The procedure is similar to a Court
trial, but is governed by the rules of administrative law, in addition to
the other rules of evidence, etc., involving ordinary cases. Criminal law,
per se, does not apply procedurally and that is why a specialized DUI or DMV
attorney is preferable to one who handles only criminal cases of assorted
nature, and doesn't specialize in DUI or administrative work. You may
subpoena witnesses, although to subpoena police officers actually costs
money. You may also have expert witnesses, such as forensic alcohol
analysts, testify either in person, by telephone, or by affidavit. You may have other
witnesses testify, and they can often do so by telephone or affidavit
without the necessity of being personally present. DMV hearings are usually
on time and take place on the date scheduled and usually do not involve a
lot of continuances and "pleading" prior to hearings. Unfortunately, the
hearing officer is ordinarily an employee of, or has a bias, towards the
Department of Motor Vehicles.
In Court, a DUI lawyer will ordinarily make numerous appearances and file
numerous motions, requests for discovery and other legal maneuvering prior
to any actual hearing or trial. The procedures are usually lengthy and
involved and often result in continuances. You have a right to a jury trial
in which there is a presumption that you are innocent, unlike DMV hearings,
they cannot call you as a witness, and for that reason, although you are not
required at any Court hearing, you may wish to be present. On the other
hand, at DMV your attorney may not wish to have you present, but may wish to
have no testimony or affidavit from you, because at DMV you can be called as
a witness if you are present, or can be demanded as a witness to testify if
you submit an affidavit. In the criminal Court procedure, you have a right
to remain silent. You also have a right in a criminal case, if you are
totally indigent, to the appointment of a public defender.
If you are unfortunate and lost a DMV hearing, or part or all of a criminal
proceeding, you are entitled to review, by either what is called a writ, or
appeal.
You have a right to a re-hearing by the Department of Motor Vehicles in
Sacramento, which is somewhat limited in nature, if you lose a DMV hearing.
You are also entitled to a writ, which is similar to an appeal directly from
a DMV hearing, or from an adverse DMV Departmental Review.
In criminal cases, you are entitled to writs and appeals at several
different levels should you lose a motion or trial.
5. Refusal or Failure to Complete Test
If you did not take or complete a chemical test and you do not have a legal
justification, DMV will suspend you upon a first offense for one year - on a
second offense within seven years you will be revoked for two years, and
three or more offenses within ten years will result in revocation for
three years or more. Unlike the person who takes or completes a chemical test of
blood, breath or urine, if you are found to have refused or failed to
complete without legal justification at DMV, you will not, under any
circumstances, be entitled to a restricted driver's license to go to and
from work in course of employment, or to and from a DUI School. The meaning
of "refusal" is a difficult legal standard and requires the help of an
experienced DUI attorney specialist.
In order to prove that you failed to complete or refused a test, the
arresting officer is required to testify he informed you, in detail, and
understandably, that you have a right to a chemical test of your blood,
or breath, although scientifically speaking, a breath test is not a
chemical test. Furthermore, don't be confused that a preliminary screening
test, i.e., some hand-held breath tests out in the field qualifies, because
under the implied consent law, that is the law that the officer must read
you, he is also required to tell you that the hand-held breath tests do not
qualify as a chemical test of your blood or breath, and that a
second test is required. In some counties portable breath tests are admissible.
There is also a great volume of law in regard to how far the officer must go
in advising you, because obviously the person he is arresting is alleged to
be under the influence of alcohol, and therefore has somewhat of a
diminished capacity to understand.
Because of the fact that an officer must also advise you, once you are in
custody, that you have a right to have an attorney and have an attorney
appointed at no cost, and to have one present before any questioning or
statements by you, there is a lot of confusion legally and factually in
regard to what is a refusal or failure to complete, and what is not.
Also, many people charged with refusal did not understand they must also be
factually driving, and that there must be probable cause for arrest, and a
lawful arrest, before the Department can
use the issue of refusal or failure to complete against the driver.
All of these issues require the review and expertise of an experienced
DUI/DMV lawyer. The law is further complicated in regard to refusals in that
it is possible under some circumstances for a driver to decline to take a
blood, breath or urine, and then for the officers to have a legal
justification, under some very limited circumstances, to force a blood test
from the party. The issue of whether it is admissible in Court or DMV
becomes a legal question as well as a factual determination that can only be
made on a case-by-case basis by an experienced attorney.
One of the obvious reasons law enforcement does not like what they refer to
as a refusal is that it is very difficult for law enforcement and the
prosecution to prove that someone is under the influence, or over a .08
blood alcohol, or whatever level applies
in your particular case, without a blood, breath or urine test. Further,
officers and prosecutors, as well as juries, do not like or believe in urine
tests, or breath tests, as much as blood tests, so often officers will
coerce or force a blood test illegally because they know they will have
difficulty proving a urine test, and may not able to get a conviction
without some type of chemical test. The law no longer gives the option of a
urine test.
Further, it is human nature for officers to detest giving the urine test,
which also requires at least a twenty minute waiting period and the taking
of two samples. Also they can get a very clean blood test done by medical
technicians at a hospital, which is much more reliable and persuasive to a
jury later in Court.
If you have failed to take, or refused to take a test, the penalty is
enormous in terms of loss of your license, but also results in enhancements
of further jail and fines in Court, but on the other hand, may result in the
prosecution failing to prosecute or having insufficient evidence to win a
case in a trial beyond a reasonable doubt. If you have a refusal, you need
an attorney even more than that person who took a blood, breath or urine
test, even if it is a first offense.
6. Zero Tolerance, MIP and Minors
If you are a minor, or more precisely under 21 years of age and in
possession of alcohol, even if none is consumed, and even if the possession did not involve the use of a
motor vehicle, you may lose your license for one year. If you were arrested
for zero tolerance, that is .01 or above, you are looking at a one year
suspension. In order to be convicted in a courtroom, as well as receive a
one-year suspension, a minor will have to be charged with driving with a .05
blood alcohol, or above, or driving with a .08 blood alcohol, or driving
under the influence. Under anyone of these sets of circumstances, the minor
is looking at a loss of license for a minimum of one year period and more if
there are prior convictions, refusals, or a bad driving record. Possession, even without a car and with no drinking, is also a one-year suspension.
Depending on which Code section the minor is arrested and charged with, it
is sometimes possible to get back a license on a restricted basis to drive
to and from work, in the course of employment, to and from school, to and
from medical appointments, home, etc. Whether this applies to your
particular factual basis and the law under which you are being prosecuted,
should be reviewed by an attorney who specializes in alcohol related
offenses, DUI and DMV.
These cases differ greatly from those that are filed in Juvenile Court,
for a person under 18. If your case involved a minor in
possession of alcohol or possession of some drugs, including less than an
ounce of marijuana, you may not have your license taken immediately by the
arresting officer, but upon conviction by any Court, including Juvenile
Court, will be notified that your license is suspended or revoked for a
period of one year or more by the Department of Motor Vehicles. This,
unfortunately, may also be in addition to the penalties imposed on your
driving by the Court or Juvenile Court hearing officer.
Although it is obviously easier to show a .01 blood alcohol, or possession
of alcohol, the complicated issues of probable cause for arrest, lawful
arrest, advisement of rights, illegal searches and seizures, Miranda rights
and all of the rest apply with similar force in a minor case and the need
for the use of a specialized attorney should not be minimized. In minor in
possession cases, it is often possible for an attorney to get a prosecutor
or Court to reduce the charges to some type of County or City Code violation
that does not result in the Department taking your license.
On minors in possessions, and zero tolerance cases with the Department of
Motor Vehicles, it is also possible to petition either the Court or the
Department of Motor Vehicles for what is called a hardship license or
restricted license which allows going to and from work, in the course of
employment, to and from school, to DUI Schools and the like. The procedure
to get such restricted licenses is difficult and requires precise procedure
in pleadings and should only be handled by an experienced DUI/DMV lawyer,
except in perhaps, the most liberal of jurisdictions. Further, many
jurisdictions, because of their lack of a real County Public Defender's
office, take the position that they can file these cases as "infractions"
and thus deny minor defendants their rights to a Court-appointed lawyer,
jury trials, and the like. These hardships can be avoided by an experienced
attorney.
7. Prior Convictions, Violations of Probation, Failures to
Appear and Multiple Violations
If your arrest for DUI or .08 blood alcohol involves prior convictions,
violations of probation, multiple charges, or failures to appear, the first
thing you should think about is hiring an experienced DUI and DMV attorney.
If you have been convicted of DUI on previous occasions, the minimum
sentence is raised appreciably; for example: a DUI with two priors has a
minimum mandatory sentence of 120 days in the County Jail. A DUI with three
prior convictions can be filed as a felony and can carry a sentence of State Prison. Sometimes a prior conviction or more
technically stated, a separate violation, can also not only result in a
minimum mandatory jail sentence, which is much increased, but can also be a
case in which you are currently on probation and result in a violation of
probation which can have a lengthy jail sentence in addition to the minimum
mandatory of the current case.
If you have DUIs involving hit-and-run, driving on a suspended license, no
insurance, or failures to appear, the sentences and fines are dramatically
increased, but so is the ability of an experienced attorney to negotiate or
do away with significant penalties. The various multiples and possibilities
are too lengthy to discuss here, but if you have even a single prior
conviction in the last ten years, I would think it mandatory that you hire
an experienced attorney who may save you more money than it costs to employ
him. Violations of probation and failures to appear can often be plea
bargained away or disposed of by various pre-trial motions. Oftentimes where
there are multiple violations and prior convictions, a case can proceed to
jury trial without the jury being allowed to know about other violations or
prior convictions.
Prior convictions, which are better termed enhancements for separate
offenses, stay on your record for life, and can be charged for ten years from the time of the first driving to the time of the second driving
and does not date from dates of conviction to driving. In the current DUI, a
good DUI/DMV lawyer can get the records on any separate or prior conviction,
and it is possible in some circumstances to have those stricken from your
present case, or even stricken or vacated from your driving record al
together as though they never took place. This requires a fairly complex
procedure of getting the records from the prior jurisdiction and reviewed
for various procedural and constitutional defects. Further care should be
taken in doing this, because if you happen to be on probation in the prior
jurisdiction, the attempt to get the prior records will "tip off" the prior
jurisdiction that you have a new DUI, and may result in a violation of
probation on the first case, in addition to the current problems. So, such
action should be taken only by an experienced lawyer who specializes in that
area.
Often prior convictions, if they cannot be vacated or stricken, can be
deleted for purposes of sentencing and fines, as can probation violations,
failures to appear, and other types of violations and the savings in fines
alone may more than pay your attorney's fees.
8. Felony Convictions
There are at least three types of felony DUI cases in California. The first is
a case wherein, in the normal DUI or .08, someone other than the driver
being charged, is seriously injured. The charge requires that a second
violation be involved, such as driving too fast, going over a yellow line,
running a red light, or some other secondary offense, be the proximate or
legal cause of the injuries in addition to driving under the influence, or
with over a .08 blood alcohol. Any time there is a serious injury, you can
expect to be charged with a felony. A felony allegation, whether resulting
in a misdemeanor or felony, may result in the loss of your license through
the Court system for a minimum of one year, and a suspension or revocation
by the Department of Motor Vehicles for a minimum of one year. These,
unfortunately, are not always concurrent, and may result in a suspension for
even longer than one year. The typical case is a case where the running of a
red light or going across a center line causes an injury to a passenger or
driver in another vehicle, but it is not so required, and sometimes involves
a passenger in your own vehicle, even one that may have been drinking and
knew you were drinking, and knowingly got in your car, knowing you had been
drinking together.
Sentencing on felonies of this type can run from 48 hours to three years
(with 4 years parole) in
State Prison or more, and can include conditions of probation ranging from Court
probation to formal probation to supervised testing, psychological and
psychiatric testing and counseling, restitution, and various other
penalties.
A second type of felony is a DUI without an injury wherein there are three
prior convictions or separate offenses within ten years of each other. The
ten years is measured from the date of the driving, not from the date of
conviction. In either one of these types of cases, but particularly where
there are many priors involved, it is important to have an experienced
DUI/DMV lawyer. Prior convictions can often be set aside, stricken for
purposes of sentencing, or ruled unconstitutional and taken off your record
for various reasons, including, but not limited, to the fact that you may
not have been properly advised or waivers of your rights not properly taken
during the prior DUI cases. In many cases of older convictions, there is not
proper record keeping, an experienced lawyer can get the prior convictions
taken off your record by various legal maneuvering which may reduce your
case to a misdemeanor or have a significant impact in regard to sentencing.
A third type of felony can occur
if you have prior felony DUI's or too many priors within ten years.
Whether you have a felony resulting from an accident or from prior
convictions, it is essential you have experienced representation. If you are
convicted of a felony, you will no longer have your civil rights, you will
not be able to vote or possess a firearm, even a hunting weapon, and your
employment possibilities will be significantly limited. Further, you will
probably be unable to find reasonable, if any, insurance, once you are
re-licensed, and most Court will involve you in eighteen to thirty month DUI Schools,
extensive counseling, Alcohol Anonymous meetings numerous times a week, or
day; there may be frequent Court reviews, and meetings with probation
officers, and urine, blood or breath tests, without probable cause, without
a search warrant, as a condition of your release, even after significant
time in jailor prison. If you get a prison sentence you may be subject to
parole for up to four years.
If you have a felony based on a lot of convictions, a good attorney can keep
that information from a jury in a case that goes to jury trial, and in the
case of an accident, an attorney can easily point out to a jury that there
is a lack of proximate or factual cause between the underlying events of the
case and the injury, or a lack of seriousness of the injuries may convince a
jury it should be reduced to a misdemeanor. Further, motions are sometimes
successful, even in front of a Judge, to reduce a felony case to a
misdemeanor if the facts warrant it. Often, also an attorney working with a
victim of an accident case or with proper letters of recommendation,
counseling and self-imposed disciplinary proceedings outside the Court, such
as AA, Alanon, and the like, may convince a prosecutor and/or Judge to
reduce the case to a misdemeanor, or not impose state prison time. A felony
DUI is probably one of the most devastating, mentally, psychologically, and
economically, of any charge, and certainly requires the expertise of an
experienced attorney.
9. Cases Filed with Juvenile Courts
If you are under 21, you are considered a minor for purposes of alcohol, but
this information has to do with those minors under the age of 18.
Juveniles are usually arrested and given a PAS test, that is, preliminary
alcohol sensor, or preliminary alcohol screening test, which consists of
blowing into a hand-held breath testing machine. These machines' results may
not be admissible in Court for purposes of proving you are over a .05, .08, or
under the influence, but they are allowed in juvenile DMV hearings to show
that you had more than a .01. The law in this area is very complicated and
you should certainly retain an attorney if you are a juvenile or if you have
a son or daughter being prosecuted for these types of offenses. In the
typical juvenile case, the minor is arrested for zero tolerance, .05, or
.08, and has the same options to contact the Department of Motor Vehicles
within 10 days or lose his license for one year.
You have ten days in which to call the Department of Motor Vehicles in
Sacramento (not locally), if you wish to preserve your driving privileges
for the reasons set forth in that tape recording. Do not, under any
circumstances, wait beyond ten days after your arrest.
If you are a juvenile and too young to drive, you may find that if you are
convicted of any of these offenses that when you go to apply for a driver's
license for the first time, you will not be able to get a license until one
year after your application. That is sometimes not explained to you properly
when you go to Juvenile Court. Further, Juvenile Courts often suspend
licenses themselves for a period of one year, and that may be months after
the DMV has already suspended for a year, thus resulting in overlapping and
consecutive losses of license.
If you are already a ward of the Court which means you have already been
adjudicated a juvenile probationer and thus already under the jurisdiction
of the Court for previous alleged offenses, it is even more imperative that
you retain counsel in regard to any new DUI, zero tolerance, MIP, and the
like.
A conviction of one of these offenses is a violation of your wardship and
probation, and can result not only in the usual serious consequences, but
can, in addition to DMV and usual Court penalties, result in sanctions for
violation of your probation and sentencing to Juvenile Hall or in some
circumstances, depending on your age and circumstances, to adult jail, a
boys' or girls' ranch setting, or California Youth Authority, and in extreme
cases thereafter, prison.
Juvenile Court, once it gets jurisdiction over you, that is, the power over
you which it gets after a conviction of any offense, or as they call it in
Juvenile Court, a finding or an admission, keeps that power even after you
become an adult.
A Juvenile Court hearing officer or juvenile Court Judge has almost
unlimited and unbridled discretion in what he may do to you if you have
already been adjudicated a probationer or ward of the Court. An MIP, DUI,
zero tolerance, etc. may be "the straw that breaks the camel's back" in
regard to a serious sentencing, a removal from a family, probation terms, or
the like. Further, the Juvenile Court is not restrained in regard to adding
additional conditions or suspension time to your driving privilege.
Although you will be told at Juvenile Court, after you successfully complete
your probation, you may have your record expunged, the expungement law does
not apply to Vehicle Code violations, and specifically to driving under the
influence, and those records will stay with you, as an adult, for a period
of at least ten years, probably for life, and will result in your inability to get insurance or afford it, and will be viewable
by insurance companies, law enforcement and the like.
10. Private vs. Public Defender / Accident Cases and Your
Insurance Company
When you go to Court, you will have another decision to make, and that is to
represent yourself, ask for a public defender, or hire an experienced
private lawyer.
Since you should get an experienced private lawyer immediately to handle the
DMV matter, and surely within the first ten days, you should not have to
make this decision, but if you have been foolhardy enough to get to the
Court process without having already retained a private lawyer, you will
have to decide whether to retain one, ask for the public defender, or
represent yourself.
You may ask for a Court appointed public defender, depending on the size of
the County in which you live. In metropolitan counties, there is a county
public defender who is elected and hires certain, usually inexperienced
young lawyers to work for him, many of whom have so many cases per day that
they can't adequately and properly represent you. In "cow" counties, or in
counties where they do not have a county public defender, attorneys are
usually hired on a contractual basis on the basis of who the supervisors
and/or judges like, and who needs the business most.
Often these attorneys are inexperienced, and almost always have too many
cases, little funds for experts, and negligible help in the way of
investigation. The big problem is that they always have a conflict in that
in order to get their contract renewed, whether they are appointed as a
group or on an individual basis, they must "get along" and "play ball" with
not only the Judge, but unfortunately, the prosecutor, and cannot represent
their clients to the 100% maximum as a private attorney.
You might as well not have an attorney unless you hire one who specializes
in DUI and DMV law. DUI cases are unique in the criminal field in that they
involve administrative law, as well as criminal law, unlike any other type
of criminal action. Further, they require a working relationship with expert
witnesses in regard to blood, breath and urine tests; accident
reconstruction experts on many occasions, and other expertise’s not held by
those who practice general criminal law, and most certainly not by attorneys
who dabble in all fields or are civil lawyers most of the time. Since the
DUI will affect your record for at least ten years and probably life, and will seriously affect
you economically not only from harsh penal ties, fines and the like, extreme
increase in insurance charges, but also the money lost as a result of not
being able to drive, it would be foolhardy, indeed, to proceed without an
attorney. Further, if you attempt to set up a DMV hearing yourself, it must
be done within ten days. You will have difficulty setting up a hearing and
asking for temporary license pending the hearing that may not be for several
months, on your own.
In summary, suffice to say, if one represents himself, he has a fool for a
client, and the client has a totally inexperienced person for an attorney.
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