Orange County DUI Checkpoints 7/29/17

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Orange County DUI Checkpoints 7/29/17

Orange County DUI Checkpoints 7/29/17

Orange County DUI Checkpoints

These are the Orange County DUI Checkpoints 7/29/17, and for the whole weekend.  There were checkpoints announced in the  cities of Westminster, Anaheim, and Laguna Niguel

Westminster DUI Checkpoint

The California Highway Patrol (CHP), Westminster Area, have announced via an Orange County DUI checkpoint press release that they will conduct a driving under the influence (DUI) and driver license checkpoint on July 29, 2017, within an unincorporated area of Orange County.

Our Westminster DUI lawyers know that means that it will not actually be in the City of Westminster, but likely closer to the unincorporated areas near Huntington Beach. Check out our Huntington Beach DUI information and Westminster DUI Information pages for updated information on DUI cases in those cities.

Anaheim DUI Checkpoint

Our Anaheim DUI Attorneys have learned that there is a DUI Checkpoint in Anaheim, as announced by the City of Anaheim and their DUI Enforcement efforts.

The Anaheim Police Department  Traffic Unit will be conducting a DUI/Drivers’ License Checkpoint tomorrow night, July 28, 2017, on Brookhurst St north of Ball Rd between the hours of 8:00 P.M. and 3:00 A.M. 

Laguna Niguel DUI Checkpoint

There is a DUI Checkpoint in Laguna Niguel announced by the Orange County Sheriff’s DUI Enforcement Team.  The OC Sheriff’s Department intends to hold a DUI Checkpoint and Suspended Driver’s License Checkpoint this weekend to stop and arrest alcohol and driving under the influence of drugs (DUID) drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held at 7 p.m. on Friday, July 28, 2017, to 3 a.m. Saturday, July 29, 2017.  Check our Laguna Niguel DUI information page for information on how Laguna Niguel DUI cases are handled.

Why are there DUI checkpoints in Orange County?

Although repeated studies have shown not only that DUI checkpoints do not work, they are substantially less effective at ridding the road of drunk drivers than saturation patrols are. However, since both the Federal government (through NHTSA) and the California Office of Traffic Safety (OTS) give substantial funding to pay officer overtime for DUI checkpoints, and not to saturation patrols, and also because of contributions and pressure from MADD, (and in addition, previously because seizure of cars not involved in DUI meant thousands of dollars for police agencies, as shared with police impound lots), DUI checkpoints will continue, including the Orange County DUI Checkpoints 7/29/17, no matter how ineffective they are statistically proven to be.

Are DUI Checkpoints legal in California?

Yes.  California DUI case law, including the Ingersoll case in California, make them legal, as long as certain guidelines are adhered to. Hopefully, the Orange County DUI Checkpoints 7/29/17 will be in compliance.

Contact us for DUI checkpoint questions.

We can challenge DUI checkpoints in Orange County that do not meet the requirements of California law.  Contact us today for help.

 

Orange County DUI Probation Terms

Orange County DUI Probation Terms

Orange County DUI Probation Terms

In Orange County, if you are convicted of a DUI, or if you agree to plead guilty to a DUI as part of a plea bargain in a DUI case, you are subject to the standard Orange County DUI probation terms.

Those terms are part of the standard minimum DUI sentence.  By law, a judge in a DUI case has to sentence someone to a minimum of three years probation (and in some jurisdictions, they may sentence to five years probation, like they do with San Diego DUI cases.

As a condition of probation, and as a condition of probation, you can face more severe punishment if you violate any of the terms of a DUI sentence or DUI probation.

That’s a problem, because as I have found, in over 23 years of practice as a DUI Attorney in Orange County, most DUI clients cannot remember what terms were in their DUI sentence or Orange County DUI Probation, even though it was in writing and sets forth conditions that they have to live by every day for the next three years or more.

What is probation in an Orange County DUI case?

Probation is a special status for persons that plead guilty in almost all Orange County criminal cases.  The idea of probation is that there is additional punishment (usually jail time) hanging above the head of someone on probation.  The client will get a lowered sentence, and be placed on probation, but bargain with the court that they will not get in trouble again.

If you violate any terms of probation, that is considered a probation violation.  If the violation could be considered an additional crime, then you have two cases – the prior DUI case they are on probation for is resurrected, and they are facing both the new case, and a probation violation on the old DUI case.

What is involved in probation in an Orange County DUI case?

Probation, for purposes of DUI cases in Orange County, means no probation officer, no checking in with any probation office, and no prohibitions on where you live, where you move to, or where you can work.

You are on special status, and only have potential punishment if you violate the law, or violate the specific terms of your DUI sentence, or your DUI probation in Orange County.

What are the Orange County DUI Probation Terms?

In Orange County DUI cases, the court has to sentence between the minimum and the maximum by law for DUI punishment.  The terms of probation in a DUI case depend on whether or not there are DUI enhancements filed that increase the punishment for a DUI.

For example, if there is DUI with an accident in Orange County, there is a requirement that the Orange County judge handling the case order that any damages be paid if they are not already covered by insurance.  This is called restitution.  If the DUI doesn’t involve an accident, this requirement wouldn’t be imposed as a sentence term or a term of probation.

Similarly, there can be additional DUI sentencing and probation terms for any of the following:

Other than the special situations above, in a DUI case in Orange County, the terms of a DUI sentence, and thus the terms of DUI probation in Orange County court is typically as follows:

  • Violate no law.
  • Obey all orders, rules, and regulations, and directives of the Court, Jail, and Probation.
  • Do not drive without a valid driver’s license in your possession.
  • Do not drive without proof of valid auto liability insurance or financial responsibility as required by law.
  • Use true name and date of birth only at all times.
  • Disclose terms and conditions of probation when asked by any law enforcement or probation officer.
  • Do not drive a motor vehicle with any measurable amount of alcohol in your blood*.
  • Submit to a chemical test of your blood on demand of any peace officer, probation officer, or mandatory supervision officer; and
  • Carry valid government issued identification at all times.
Some of the above terms, like having a driver’s license and insurance, are the law anyway, whether you are on probation or not.

*Most people don’t realize that they cannot have any alcohol in their system while on DUI probation.  They often think that, because the legal limit is 0.08%, that they can drive with any amount below that.  For people on DUI probation in Orange County, you cannot drive with any alcohol in your system, at all.

If you are stopped, for any reason, and you are found to be on DUI probation and have alcohol in your system, you have violated your Orange County DUI Probation Terms.

How do I get off Probation in an Orange County DUI case?

Probation expires automatically in DUI cases when three years from the date of the entry of the guilty plea or guilty verdict in a DUI is entered.

The law also allows you to get off probation early, in as little time as the minimum of one year of probation, if you ask for it early.  That requires a written motion, filed with the court, served on the prosecutor, and argued before the court.  That motion is called a “Motion to Terminate Probation“.

Once you are off probation, your DUI criminal conviction can be expunged. An expungement clears your record to the maximum allowed by the expungement laws, by removing the conviction and retroactively replacing it with a dismissal, making it look like the DUI was dismissed.

Contact us for Concerns about your  Orange County DUI Probation Terms

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Contact us today if you need an Orange County Probation Violation Attorney.  We can help you avoid maximum punishment if you’ve violated your Orange County DUI Probation Terms.

Were marijuana laws racially discriminatory?

Were marijuana laws racially discriminatory?

DUI Under the Influence of Marijuana

As NORML marijuana lawyers in California, we had notification of one of our colleagues making an argument today (July 18th, 2017), in court in Connecticut that was interesting.

Aaron Romano says many state laws criminalizing marijuana were based on the federal “Marihuana Tax Act of 1937“, which essentially criminalized marijuana by imposing harsh financial penalties. That is one of the reasons why, under federal law, the legal nature of banking for marijuana dispensaries and other businesses is such a difficult area to deal with for most cannabis businesses.

Mr. Romano argued that the federal law was rooted in racism and bigotry against blacks and Mexicans and therefore was unconstitutional, as are the state bans based on the law including Connecticut’s, where he practices as a marijuana lawyer.

“It was racially motivated and states just adopted it wholesale,” said Romano, a Bloomfield attorney who also is legal counsel for the state chapter of the National Organization for Reform of Marijuana Laws (NORML). “With the growing awareness of cannabis’ health benefits … at this point there is no reason to maintain its illegal status.”

The prosecutor in the case declined to comment, while at least one drug law expert doesn’t believe such an argument would be successful.

Romano made the unusual argument Tuesday in a motion to dismiss marijuana possession and probation violation charges against his client, William Bradley, who was caught with nearly a pound of marijuana in January while on probation for a previous marijuana conviction. He is detained while awaiting trial because he can’t post $150,000 bail.

The article about the case from US News and World Report is an interesting read, and the financial laws regarding banking and marijuana remains in dispute.

If you have questions about the ever changing field of marijuana laws in California, or need an attorney for your marijuana business licenses or cannabis license, contact us today. 

Retrograde Extrapolation in DUI cases

Retrograde Extrapolation in DUI cases

Retrograde Extrapolation in a DUI case

What is retrograde extrapolation?

Retrograde Extrapolation in DUI cases is a very inexact method in science.  It is the method of using existing known details to retroactively in time estimate what a blood alcohol level was at a specific time in the past.

As stated above by one of the eminent experts in alcohol issues, Dr. Dubowski has stated that retrograde extrapolation can only be accurate when done “by a person who is properly qualified by education, experience, expertise, and competence, if sufficient relevant and material information concerning the subject and the events in issue exists and is available.  Whether these conditions are satisfied in a given instance is a question of fact, which cannot be generalized.”

How is retrograde extrapolation in DUI cases used?

Retrograde extrapolation is used mainly by the prosecution in a DUI case to guess, using whatever data points exist after the fact, what the blood alcohol level for a particular person was at the time of driving.  Because the time of driving is the only relevant time where the alcohol level matters, a prosecutor has to show that a person was either impaired, or above a certain alcohol level, at that time.  It’s not illegal to be drunk, or even a high blood alcohol level, in a private space (like a police station), only when driving a motor vehicle.

Even more speculatively, the prosecution sometimes uses retrograde extrapolation to estimate the amount of drinks that the driver or defendant had before getting in the car.

What are the problems with retrograde extrapolation in DUI cases?

Blood Alcohol DUI Defenses

As you might expect, estimating blood alcohol levels depend on a number of variables, and each of those variables have their own measurement problems, and margins of error.

In the human body, blood alcohol levels do not rise and fall in a steady fashion, but instead demonstrate (through scientific testing studies), spikes or steeping of the curve towards and away from peak alcohol levels.

In the downward part of the curve, returning back to sobriety, blood alcohol elimination is often assumed to be an average of 0.015 percent per hour.  However, scientific studies show great variance in the general population from 0.008 to 0.030 percent per hour, and may vary even more than that in certain individuals.

Retrograde Extrapolation in DUI cases – Factors affecting results

Experts estimating retrograde extrapolation may not have all the information they need to make an accurate calculation.  A proper estimation, at least, would have to have all the factors below:

  1. The person at issue must be in the post peak (dissipation) of alcohol. That requires that the timing of each drink is known.
  2. The calculation must know the person’s gender.
  3. We have to know the person’s weight at the time of driving.
  4. The calculation has to know the person’s lean body mass (to obtain the volume of distribution information).
  5. You must know the person’s age.
  6. The calculation should factor for the person’s true height.
  7. The calculations performed must account for the person’s mental state.
  8. The expert must know the type of alcohol that was introduced into the body.
  9. The calculation must account for the amount of food that is in the person’s stomach, and the timing of eating, before or after drinking.
  10. We have to know the type of food in the person’s stomach.
  11. The expert should know the starting time of the drinking episode.
  12. The calculation should account for the ending time of the drinking episode.
  13. The math must account for pace of the drinking episode.
  14. The retrograde extrapolation should know whether the drinks consumed were carbonated or not;
  15. The calculations done should account for the timing between last drink and time of breath test.
  16. The expert should know the number of samples taken, and the timing of each.
  17. The model used in calculation must know the latest time of any driving.
  18. The calculation should, but in almost every case doesn’t know, the particular absorptive rate for this person.
  19. The calculation should, but in almost every case doesn’t know, the particular elimination rate for this person.
  20. The expert should know of the existence of any sort of gastro-intestinal or other diseases or conditions (lap band, GERD, acid reflux, diverticulitis or interactions with any drugs used by the person).

As you can see, the calculation is complicated.  Using retrograde extrapolation to estimate a defendant’s BAC at the time of driving has been criticized by many experts in the field. This method requires the toxicologist to make a number of assumptions; namely that the alcohol was completely absorbed at the time of testing, that the elimination of alcohol in the DUI suspect occurred at the “average” rate and that the driver’s blood-alcohol curve can be charted with accuracy.

When does the defense contradict retrograde extrapolation in DUI cases?

During the pretrial stage of a case, before trial, the defense can present any reports from forensic alcohol expert witnesses experienced with DUI cases as part of the negotiations towards a plea bargain with the prosecutor.  That may end up in a dismissal of DUI charges, reduction of charges below a DUI, or plea bargain in the DUI case.

At trial, any retrograde extrapolation done by the defense expert witness in a DUI case can also be presented to the jury.  Because the prosecutor cannot interview the DUI defendant and get all the factors above, the defense retrograde extrapolation has to be more accurate than the defense’s calculations.

Contact us

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Contact us today for questions about retrograde extrapolation in DUI cases.  We can help.

 

The Necessity Defense in a DUI case

The Necessity Defense in DUI cases

One defense allows justification of drunk driving, if there was a compelling enough reason to break the law.  A person can be found not guilty of DUI if they had a valid reason for driving drunk. This page discusses the Necessity Defense in DUI cases.

What is the Necessity Defense?

The definition of necessity is that the action, which was illegal, was a necessity, in order to prevent a greater evil.  The harm the defendant wanted to avoid outweighs the danger of the prohibited conduct the person is charged with.

The necessity defense has been part of historical common law, so it’s been a part of the law for a long time.  In the earliest case, it was used to defend a trespass charge, when it was shown that the defendant had trespassed on the property to save a life.  Committing the trespass thus avoided the danger of death to another.

What does the law require to prove the Necessity Defense in a DUI case?

At trial, if a defendant is asserting the necessity defense, to excuse a charge of driving under the influence, the jury deciding the case will be instructed exactly as follows:

The defendant is not guilty of <insert crime[s]> if (he/she) acted because of legal necessity.
In order to establish this defense, the defendant must prove that:
– 1. (He/She) acted in an emergency to prevent a significant bodily harm or evil to (himself/herself/ [or] someone else);
– 2. (He/She) had no adequate legal alternative;
– 3. The defendant’s acts did not create a greater danger than the one avoided;
– 4. When the defendant acted, (he/she) actually believed that the act was necessary to prevent the threatened harm or evil;
– 5. A reasonable person would also have believed that the act was necessary under the circumstances;
AND
– 6. The defendant did not substantially contribute to the emergency.
The court would also instruct the jury as to the different burden of proof as to this one part of the case, and that the burden is on the defense to show this defense. The jury would be instructed as to this aspect of the case as follows:
The defendant has the burden of proving this defense by a preponderance of the evidence. This is a different standard of proof than proof beyond a reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the defendant must prove that it is more likely than not that each of the six listed items is true.
So, not only do you have to show that the act of driving under the influence was triggered by an emergency, but that it prevented harm to yourself or to others, and was reasonable, and did not end up creating a greater harm overall than DUI.
Thats a large burden, and the necessity defense will not apply in every case.

So When does the Necessity Defense apply in a DUI case?

The defense of necessity applies when those elements are present.  Here are a couple of examples from actual cases our Orange County DUI Attorney, Robert Miller,  has handled in the past:
Example One: A man was drinking at a bar in a neighborhood known for gang activity.  Outside the bar, a shooting occurred, and at least one person people inside the bar pulled out a gun.  Our client left out the back entrance, got into his car, and drove to a payphone to call for police help.  When the police arrived, they arrested him for DUI.
We asserted the necessity defense, and the prosecutor said that DUI could be as dangerous as a shooting.  The prosecutor also said that because the bar had a phone, staying in the bar and calling the police was the right thing to do.
The case went to jury trial, and the jury found that the situation was an emergency not caused by the defendant, that the act of driving away to call the police was reasonable, and that there was no reasonable alternative.  The defendant in that DUI case was found not guilty of DUI. 
Example Two:  A woman on a first date ended up at her date’s home.  Feeling that she was drunk, or might have had her drink spiked with something, she mentioned that she felt drunk.  The man said he was going to take advantage of her, then, and she felt scared and drove away.  She was stopped shortly afterwards, and was arrested for DUI.  She did not mention until well afterwards that she feared that she was going to be the victim of a rape.
The prosecutor pointed out in that case that she had driven to the situation, and had chose to drink, and had a cellphone on her.  They did not believe that there was a necessity defense in that case.  However, because of her low blood alcohol level, the existence of that issue caused the case to be reduced to a reckless driving with alcohol (a wet reckless) charge.
In Texas, necessity has even been used successfully by inmates who escape from prison under certain circumstances. In Spakes v. Statethe highest criminal court in Texas allowed the jury to be instructed on the necessity defense before deliberating the verdict for an inmate whose three cellmates had planned an escape and threatened to slit his throat if he did not accompany them. The defendant inmate argued that because of the terribly violent crimes of which his cellmates had been convicted (one had bragged about chopping his girlfriend up with an ax), he accompanied them and escaped. Even though he made no attempt to return himself to custody when he was separated from his cellmates, the court still allowed the defense.
The defense of legal necessity is seen as an unusual situation, requiring not only proof, but that the actual danger is greater than driving under the influence.

How is the Necessity Defense asserted in a case?

Any DUI specialist would be able to assert proof of a necessity defense to the prosecutor as part of the plea bargain process during a pretrial in the case.  That may be enough to have the prosecutor agree to dismiss the case, or offer to reduce the charges.

However, as mentioned above, it is considered a trial defense.  At trial, the jury can be instructed on how necessity excuses a DUI, and that they could find the defendant not guilty of the crime of DUI or related charges, if the necessity defense is proven.

Contact Us Now – Let’s Get Started.

Don’t delay contacting us if you have questions about the necessity defense in a DUI case.  We can start you on a plan of action today that will help your court date later. Contact us today.

 

 

What to do when the DA doesn’t file charges

What to do when the DA doesn’t file charges

In the courtroom

The District Attorney didn’t file charges at my arraignment. What should I do?

Imagine this scenario: You plan ahead and make sure you calendar your court date.  You show up early, and prepared, and… there is no case on the calendar.  The courtroom staff tell you to check with the criminal clerk’s office.  The criminal clerk tells you to check with the prosecutor – the DA’s office.  You might be confused.
In more and more Orange County cases, the DA has not filed charges by the time the date set for arraignment comes up.

Why were my charges not filed before I got to court?

It might surprise you that this is not an unusual situation.  The Orange County’s DA’s office has been subject to certain budget cuts post-recession, and this has been happening with increased regularity as a result.  When forced to prioritize, non-violent, non-felony cases , and cases where the defendant is not still jail, like most DUI cases, get the lowest priority.

There are instructions on the DUI paperwork to police officers, telling officers to send out the police report within five days. The same report goes to to both the DMV, for use in your DUI hearing, and to the prosecutor at the courthouse which has jurisdiction over your case.

But that doesn’t always happen.  And sometimes there are delays. In some cases, the DA’s office has not yet received any paperwork, or is reviewing paperwork, or has sent back the reports, asking for more information before they file​ charges.

How long do they have to file charges?

Under Penal Code section 1382, the prosecutor’s office has one year from the date of commission of the offense to file charges for misdemeanors like a DUI (and three years if it’s a felony charge). ​ If your case is filed at a later date, a letter with your new court appearance date will be sent to your address on the police report or citation.  If you’ve moved, make sure to update your forwarding address with your local post office.

For Orange County DUI cases, you also should periodically check the court’s website, www.occourts.org, and once the case is filed, it will appear there.  Under the law, the District Attorney’s office has up to one year from the date of the incident or arrest to file a misdemeanor charge.

Could this help my DUI get dismissed?

Probably not.  But as more times goes on, the odds of you never having to deal with the case increases. Keep track of that one year date from your arrest or citation. If your case is not filed within one year, you can be assured that your case will not be filed, ever.

However, DO NOT agree to go in and talk to the DA about your case! Doing so won’t help you, and may cause them to look for, and file, the case, add additional charges based upon your statement, or add evidence from your statement to the case. You have a Fifth Amendment right not to talk to the DA, police, or their investigators.

I got something in the mail from the Court or District Attorney’s Office. What should I do?

That letter will have your DA case number, and the court name, address, and your court date.  This means you will have a court date coming up, and will need to contact us, or another among the top Orange County DUI Attorneys,  to help you with your case.

Contact us now if you need DUI help.

Don’t delay contacting us.  We can start you on a plan of action today that will help your court date later, and check the filing on a regular basis for you.  And even if you don’t have a court date immediately, the DMV needs action within 10 days of your arrest.  Contact us today.

How to get the police report in your DUI case

How to get the police report in your DUI case

How to get the police report in your DUI case

If you have been arrested for a DUI, you might be interested in getting a police report, or police reports, to see what the police officer in your DUI case wrote about the incident. This page has information from our Orange County criminal defense attorney on how to get the police report in your DUI case.

Why the police report in your DUI case is important

The police report constitutes almost all of the evidence that the DMV uses in deciding whether or not there is proof enough to find the issues at a DMV hearing true, which would suspend your license.  Because the DMV typically decides cases based only on the documents in your case, and in most cases does not hear live testimony, the documents, as written, are used to prove the case at the DMV.

For your court case, the police report is sent directly to the prosecutor’s office, in most cases the Orange County DA’s Office.  The police report gives the DA the basic evidence to show whether or not the case can be proven, and to see if any other crimes have been committed.  They use the police report to support the decision whether or not to file criminal charges of DUI in court. The police report also identifies the parties involved, and the evidence that exists for the case.

The problem in getting the police report in your DUI case

In discussing how to get the police report in your DUI case, the problem is California’s Penal Code section PC 1054.2.  That code section states as follows:

(a)(1) Except as provided in paragraph (2), no attorney may disclose or permit to be disclosed to a defendant, members of the defendant’s family, or anyone else, the address or telephone number of a victim or witness whose name is disclosed to the attorney pursuant to subdivision (a) of Section 1054.1, unless specifically permitted to do so by the court after a hearing and a showing of good cause.

(2) Notwithstanding paragraph (1), an attorney may disclose or permit to be disclosed the address or telephone number of a victim or witness to persons employed by the attorney or to persons appointed by the court to assist in the preparation of a defendant’s case if that disclosure is required for that preparation. Persons provided this information by an attorney shall be informed by the attorney that further dissemination of the information, except as provided by this section, is prohibited.

(3) Willful violation of this subdivision by an attorney, persons employed by the attorney, or persons appointed by the court is a misdemeanor.

The translation from legalese is that a person who is a subject, or defendant, in the case, cannot get a copy of the police report unless all the witnesses, or the alleged victim’s name, address, and contact information, is redacted.  The purpose of this law is to prevent retaliation against victims or witnesses, or defendants dissuading witnesses to testify at trial or at a hearing.

What if you are representing yourself?

It is never wise to represent yourself.  In a DUI case, which involves testing science and legal issues, an Orange County DUI Attorney can help you defend your case. But if you do choose to appear as your own attorney, the law accounts for that special situation, as follows:

(b) If the defendant is acting as his or her own attorney, the court shall endeavor to protect the address and telephone number of a victim or witness by providing for contact only through a private investigator licensed by the Department of Consumer Affairs and appointed by the court or by imposing other reasonable restrictions, absent a showing of good cause as determined by the court.

With Orange County DUI cases, where a person is representing themselves in a DUI, the current procedure is to have a public defender redact (blackout or use white out) all witness information, including the police officers, copy the reports, and provide the copied report to the defendant acting as their own attorney.  That is one of the ways how to get the police report in your DUI case.  But there are others.

How to get the police report in your DUI case – directly from the police agency

As you can see from the above, if you try to get a copy of your police report from the police agency, often they will state they cannot release that to you, citing the above laws.  They may say that, as a pending court case, that you need to get any report through your attorney as part of the court case.

However, police records departments are often used to giving out police reports for insurance or investigative purposes, especially in traffic collision cases.  Licensing agencies and background investigation services also commonly order police reports.  However, access to these records varies greatly from one police agency to another and depends mainly on their procedures and policies for records.

As an Orange County DUI Attorney, I have had my clients tell me that they have had success in going directly to the police records department and obtaining their reports there.  Most police agencies charge per page for copying police reports, so there is a charge.

In Orange County, some of the police agencies that have policies releasing police reports are as follows:

Anaheim DUI Police Reports

Obtaining an Anaheim Police report (note the section instructing defendants with a pending crime).

Costa Mesa DUI Police Reports

Obtaining a Costa Mesa Police Report.  Note that the records department for Costa Mesa is open 24 hours a day.  Their phone number for records and report questions is (714) 754-5373.

Fountain Valley DUI Police Reports

Obtaining a Fountain Valley Police Report (note that you will need to fill out a form).

Tustin DUI Police Reports

Obtaining a Tustin Police Report

Los Angeles Police  DUI Police Reports

Obtaining a Los Angeles Police Department (LAPD) Report

Obtaining your police reports and alcohol test results through the DMV Office of Driver Safety

DMV and a DUIWith DUI cases, the same police report is copied and sent two places – to the prosecutor’s office, for the filing of charges, and to the DMV, for use in your DMV hearing. How to get the police report in your DUI case from the DMV?

If you request a DMV hearing within the 10-day time limit to request a hearing, you, or your DUI defense attorney, will be sent by mail a full, unedited copy of the police report to be used in defending and preparing for your DMV hearing. That is sent to you at no charge, and it one way how to get the police report in your DUI case for free.

Obtaining your police reports from an online service

The legal research and online records service, Lexis/Nexis, has partnerships with many police stations to scan and search police reports, which are available directly through the service.  You can request and pay for access and documents here:

https://policereports.lexisnexis.com/

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If you have any questions for an Orange County criminal defense lawyer about your pending DUI case, or about obtaining your police report, don’t delay contacting us.  We can start you on a plan of action today that will help your court date later. Contact us today.

 

What is valid probable cause in a DUI – Solovij v. Gourley

What is valid probable cause in a DUI – Solovij v. Gourley

The de-published case of Solovij v. Gourley, (105 Cal. Rptr. 2d 278 – 2001), is a good illustration of what constitutes probable cause from the court, and from the DMV’s point of view.

What constitutes probable cause in a DUi case

Ms. Solovij was stopped and arrested for DUI in Santa Barbara.  There was a DMV hearing for the DUI case, and at the DMV hearing, the DMV’s “Officer’s Statement” form, written by the arresting officer, was introduced.

The Officer’s Statement Form, or DS-367 form (DS for Driver Safety, form 367), which is a DMV form designed for and used for the DMV hearings in any DUI case, is a form designed to contain all the evidence from the police officer in a DMV hearing on one form.  It makes the entire case, containing the date, time, location, observations regarding intoxication, probable cause for the DUI stop and arrest, and all blood test or breath test information obtained in the case.  It also certifies that notice was given to the driver by serving the driver with the temporary license and notice of hearing rights.

DMV DS367 Form

Above is a blank Officer’s Statement form showing the information to be filled in by the officer.

The DS-367 form also, on page 3 of the form, acts as the Temporary Driver’s License and Suspension Order for the license-holder.

Even without a form, California Vehicle Code section 13380 expressly requires any arresting officer in a DUI case to file a sworn report containing “all information relevant to the enforcement action․” But with the information in the DS-367 Officer’s Statement form, if it is properly filled out, the DMV can make the entire case for a suspension without any other evidence – since the Officer’s Statement is sworn under penalty of perjury, it certifies all the relevant facts contained in the form.  The police report, traffic collision results, and even the breath test could be missing, and the DMV would still have have enough information to suspend a driver’s license and driving privileges.

The DMV distributes blank triplicate DS367 forms to all law enforcement agencies in California.  They also train officers through written instructions on what information goes in each part of the form.  That is done through the “Completing the Officers Statement” memo, reproduced below, showing, “by the numbers”, which information goes where:

The “Completing the Officers Statement” instructions from the DMV, to law enforcement officers.

In the Solovij case, there was an Officers Statement submitted to the DMV in the case.  The DMV  DS-367 form stated in part:

“PROBABLE CAUSE.   Describe in detail the facts and circumstances that led to the stop or contract․ Attach page if needed[.]”  

On the lines provided, the arresting officer wrote only the following:

“22350 VC N/B Chapala St. & W/B Carrillo St.”

(22350VC is California’s basic speed law – meaning that the stop here was for speeding). The officer then signed, dated, and served the form, under penalty of perjury as to the facts involved.

The officer’s unsworn arrest report was also submitted as evidence. The arrest report stated in part:

“On 10/02/99 at approximately 0105 hours I was on routine patrol in a marked SBPD DDT unit, number 1892.   I was driving northbound in the 800 block of Chapala Street. I observed a red 1993 Plymouth van, California license 3LMK096, passing vehicles as it was driving northbound and appeared to be driving at a speed in excess of the speed limit.   As I continued to watch the vehicle and follow it until it made a stop at the intersection of Carrillo and Chapala, I noticed that as it was driving in the number one lane it appeared to be using all the lane, going  from side to side.   I sat behind the van as it waited for the red light and followed the van westbound on Carrillo Street where it continued to weave within its lane and I initiated a traffic stop in the 300 west block of Carrillo Street.”

The report introduces weaving as separate probable cause for DUI, although “using all the lane”, or even weaving, so long as it is within the lane, is not a violation of California law.

The attorney representing Ms. Solovij objected at the DMV hearing to the sworn statement as hearsay.  All documents that were written by someone else, not present at the hearing, and introduced to prove something are hearsay, but certain exceptions allow introduction of the documents.

Here, the public records or business records hearsay objection would apply to overcome the item being hearsay, under California Evidence Code section 1280,  as long as the document or other evidence meets three requirements:

  1. It was prepared by a government official operating under their official duties;
  2. The writing was made at or near the time of the act, condition, or event it describes; and
  3. The method and time of preparation of the document were such as to indicate its inherent reliability, or trustworthiness.

Given a properly completed Officers Statement, the hearsay objection likely would be overruled, unless there was a problem with one of the above three issues.

What is valid probable cause in a DUI – The Appeal’s Court Problem with Legal Conclusions

The court looked closely at the evidence and the objection to the probable cause statement in the Solovij case.  They found that the statement, as written, was an improper legal conclusion, stating:

Here the arresting officer’s sworn report states as justification for Solovij’s initial stop only that she violated section 22350.   A statement that Solovij violated section 22350 is not evidence;  it is a legal conclusion.   (See August v. Department of Motor Vehicles (1968) 264 Cal.App.2d 52, 62, fn. 3, 70 Cal.Rptr. 172;  Downer v. Bramet (1984) 152 Cal.App.3d 837, 841, 199 Cal.Rptr. 830.)   The facts necessary to support the initial stop are contained exclusively in the unsworn report of the arresting officer.

Even though the only part of the DMV evidence that is sworn and attested to under the penalty of perjury, the other documents might also be admitted, even if unsworn.  The California Supreme Court has stated that that the unsworn report of an arresting, or non- arresting officer was admissible under the public employee record exception to the hearsay rule.  (Lake v. Reed, 16 Cal.4th at p. 461, 65 Cal.Rptr.2d 860, 940 P.2d 311, citing Evid.Code, § 1280.)   In the Lake case, the hearsay contained in the arresting officer’s unsworn report was admissible to explain or supplement Lake’s admission of driving.

As the court mentioned, Vehicle Code section 13380 expressly requires the arresting officer to file a sworn report containing “all information relevant to the enforcement action․” As the court said in the Solovij case:

We presume that when the Legislature said the arresting officer must include “all information” in a sworn report, it meant what it said.   An unsworn report will not suffice.

The DMV is not limited to just an arresting officer’s sworn statement on the DMV form.  But the DMV cannot evade the law.  There is a legal requirement that the arresting officer must include all information in a sworn report.  By categorizing the arresting officer’s unsworn report as additional evidence, the DMV has a problem in whether or not the probable cause was sufficient enough.

As a result, the court found no probable cause for the DUI arrest in that case, stating:

Because the DMV may not rely on the arresting officer’s unsworn report, there is no evidence that the officer’s initial stop of Solovij was reasonable.   Thus there is insufficient evidence of probable cause for her arrest.

The DMV’s reaction to the Solovij v. Gourley case

The DMV had a problem after the Solovij v. Gourley decision.  Many police officers thought that stating the violation of the law for the stop was sufficient probable cause.

The DMV’s first reaction was to change the DS-367 form.  Where there were only a few lines to list probable cause previously, the new form had a large section to describe what the probable cause was for a DUI arrest.

The Officer’s Statement probable cause section on the new DMV forms also stated in bold above the section for the officer to fill out that they are to “Describe in Detail all Facts and Circumstances for the Arrest”, hoping that the police officers would be encouraged to provide much more detail about the legal basis for a stop, rather than a legal conclusion.

The DMV also sent a memo to ALL law enforcement officers in the State of California, which was no small task.  It mentioned the Solovij v. Gourley case, and gave simple instructions on what was, and what was not, valid probable cause.

That memo, to “All Law Enforcement Agencies”, mentioned that the DMV had a recent adverse court ruling concerning probable cause for DMV hearings.  It mentions the case by name, stating that “the court found that there was no competent evidence in the officer’s sworn report to justify the initial stop and detention.”

The memo goes on to state, in clear terms, that “probable cause must be articulated in as much detail as possible”.  It mentions that the relevant facts necessary to support the initial stop must be contained in the DS-367 form.  the memo states that the “DMV cannot evade the statutory requirement by using the arresting officer’s unsworn report as additional evidence to supplement an arresting sworn report with missing ‘relevant information'”. 

The memo, from the Chief of the Driver Safety Branch at the DMV, indicates the five situations where facts for the arrest are required as part of probable cause. It repeats that the officer must have, and state in writing, the “articulable facts” of their law enforcement actions, because “probable cause to stop and investigate is an essential component to the legality of the arrest.  Conclusory statements by officers are not sufficient.

The DMV’s new chart – what is, and what isn’t valid probable cause.

The DMV illustrated for police officers what details for probable cause would need to be stated in various situations, and what was not acceptable.  The table below was for police officers to read to be advised how to fill out the probable cause section correctly.

Examples of Probable Cause above — the DMV chart for police officers.

What is sufficient probable cause in a DUI case – the Dibble v. Gourley case

A case decided a year after the Solovij case, Dibble v. Gourley, revisited the issue again.  Reviewing a case using the old probable cause forms, the court seemed to be unaware that the DMV had taken steps to change the probable cause section of their forms, stating:

As we held in Solovij, any information the arresting officer has that is relevant to the enforcement proceedings must be included in his or her sworn statement.  (Solovij v. Gourley, supra, 87 Cal.App.4th at p. 1234, 105 Cal.Rptr.2d 278.)

The form created by the DMV for that purpose contains two preprinted, narrowly spaced lines within which to place the information, coupled with an invitation to “Attach page if needed.”

Those who craft such forms-like those who prepare instructions for the assembly of children’s toys or mail-order furniture-should themselves be required to use the form before imposing it on the intended user. This becomes especially evident when reviewing Officer Smith’s lengthy, detailed and typed unsworn statement discussing the facts and circumstances of this case.   This statement is sufficient to prove any matter or fact in issue in this case but, because it is unsworn and was not expressly incorporated by reference into the sworn statement, it would have been inadmissible had appellant timely objected to it.

In the Dibble case, the officer had, as required by the new DMV memo, such detail that it didn’t fit under the old DMV forms still at used by his Police station.  But because it was not part of the sworn report, it had a problem if the DUI defense attorney in the case had objected to it.

What is valid probable cause in a DUI? As stated by the Dibble decision:

Probable cause to arrest exists when the facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that the person arrested is guilty of a crime.  

But the evidence regarding probable cause has to be admissible.  The court again lashed out at the DMV, stating:

An unsworn report will not suffice.  [¶] It is true that at the hearing, the DMV is not limited to a consideration of the arresting officer’s sworn report.   But the DMV cannot evade the statutory requirement that the arresting officer must include all information in a sworn report simply by categorizing the arresting officer’s unsworn report as additional evidence.”  (Solovij, at p. 1234, 105 Cal.Rptr.2d 278.)

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If you have questions about probable cause in a DUI case, or the evidence to be used in DMV hearings, contact our firm.  We can help.

California DUI Attorney

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Our California DUI Attorney Robert Miller, of the DUI defense firm of Miller & Associates, can help you and your case.  We have handled thousands of DUI cases for people just like you. By providing information to you, a strategy, and our professional expertise, our law firm can guide you to a successful conclusion of your DUI case.
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I Was Arrested For DUI. What Am I Looking At?

When you are charged with a DUI in California, you actually have two cases pending against you. One case is criminal, and the other is civil (administrative). Your criminal case is prosecuted by the Prosecutor’s Office. The civil case is a DMV Administrative Per Se License Hearing (or APS hearing). This hearing pertains to your driver’s license and is handled by the California Department of Motor Vehicles Office of Driver Safety, in the City of Orange.

You only have 10 days after your arrest to request an APS Hearing or it is waived. Be sure to request this hearing or retain a California DUI Attorney to do it for you within the 10 day time period or you automatically forfeit your right to contest your pending driver’s license suspension.

As you know, prosecutors, the courts, and even the law, all want to show how tough they are against people with a DUI case.  The punishment includes potential jail time, loss of your license, loss of a job, and thousands of dollars in fines if not handled correctly.  Don’t let the system excessively punish you without looking at all sides. Although you probably are still dealing with the impact from your arrest, this may be more serious than you realize.

DUI Punishment California

Potential DUI Punishment for California DUI cases:

The law has a maximum (six months in jail, and a fine and fees that total $5000) and a minimum (three years probation, an alcohol school, and base fines of $390).  DUI cases are sometimes reduced to another charge, which would reduce the sentencing range below the minimum.  The prosecutor can, and will, add punishment if there were any of the following:

  • a blood alcohol level of at or above a .16%;
  • children in the car;
  • an accident (with or without injury);
  • an allegation that you were speeding while DUI;
  • or any priors.

We can help avoid the more severe punishment for any of the above. The good news is that there is a way to avoid losing your driving privileges, and you probably will not face any jail time for a first time DUI.  But that takes action on your part, and we can help. Professionally handling DUI cases in California, using our expertise, knowledge, and experience in this field, is all we do.

Why choose your law firm?  What can you do for my DUI case?

Our approach to DUI defense is to carefully review all the evidence in the case, to look closely at all facts and all legal defenses that help our clients.  We look closely at the reason you were pulled over for DUI, to see if a probable cause issue might lead to a motion to suppress evidence, and thus dismiss the DUI, and look carefully at all aspects of the field sobriety testing and scrutinize the breath test or blood testing to hold the testing machine, or agencies, up to the strict requirements of the law.  For example, machines can malfunction or not be properly calibrated, blood levels can fail to take into consideration the rising blood alcohol pattern, and the blood sample can ferment and produce alcohol, causing an increase in the blood alcohol level.

What our past DUI clients have stated about us

Many clients helped by our firm in the past can attest to our great results.  We have many top ratings and reviews, including the Avvo Lawyer Rating Client’s Choice Award in the DUI field, and the “clients love us” award on Yelp, based upon our representation.
“Robert is professional, incredibly intelligent and not only a great attorney, but a great person to work with.” – Rebecca N., from Yelp.
“I found Robert Miller to be both professional and approachable. He returned my calls quickly and answered my questions with confidence.  I felt that he explored every option available to me and fought hard on my behalf.  I would gladly recommend Robert Miller to anyone who needs top-notch legal counsel and specifically a great DUI defense attorney.” – Elizabeth O., from Yelp
“Strongly recommend Attorney Robert Miller for legal services. Robert is passionate about law and representing his clients.  He is approachable, extremely knowledgable and has a track record that is hard to beat”. — Brett W., from Yelp
“Robert is the true definition of an expert and professional. I came into this situation knowing that I needed the best and I was recommended to Robert Miller & Associates. I can GLADLY say not only would I HIGHLY recommend him, he is the ONLY attorney I would ever think about hiring. My entire case was dismissed.”  – from a client’s Avvo review

As one client stated about their experience:

“During two meetings with Robert and several telephone conversations we were able to craft a defense strategy.  In several court appearances Robert was able to convince the district attorney of our defense.  Ultimately the case was dismissed.  Robert gets a five star rating from me.   He is professional and easy to reach either  by phone or email or even text message.  His fees are fair and very competitive.”  (Maurice N., from a Yelp review).

What other attorneys say about our expertise

Even other attorneys in the field know that our law firm has the expertise and knowledge to handle your DUI matter.  We have top ratings from colleagues within our area of expertise.  As one stated:
“I highly endorse Mr. Miller. Very experienced and caring attorney who produces great results in representing clients! I want all people with legal problems to contact him first.” (Mark Clay, Esq., from one of over 60 attorney endorsements through Avvo.)

Our results in DUI cases

Our preparation has obtained our clients’ great results before the courts and at the DMV, including DUI matters reduced or dismissed completely.

Meet Our Skilled California DUI attorney

Orange County DUI Lawyer Robert Miller
California DUI attorney, Robert Miller, is also known for being a top  Orange County DUI Attorney. He has been:
  • Author of three books on DUI, including two for other DUI attorneys in the profession, both published by Aspatore Press.
  • Two time graduate of the DUI Trial Skills College at Harvard Law School, in Cambridge, Massachusetts.
  • Rated a 10.0 and ranked in the “Superb DUI Attorney” category on Avvo
  • Awarded the Orange County top DUI lawyer “Clients Love Us” award on Yelp;
  • Certified in Field Sobriety Testing;
  • Graduate of additional scientific coursework on scientific testing on breath testing, and blood testing;
  • Member of the National College of DUI Defense;
  • Member, DUI Defense Lawyers Association;
  • Member of the California DUI Lawyers Association, among many other certifications and professional organizations. 

 Legal Expert Press Appearances

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The Washington Post, the BBC, NPR, ABC 7 News, have consulted with and have had Robert Miller appear on television and radio to provide legal commentary on cases in the news.

Attorney Fees and Pricing for Orange County DUI Attorneys

You will find that the price of hiring a professional DUI defense attorney to help you fight your case in court and/or at the DMV’s Administrative Per Se hearing, varies greatly between DUI lawyers in the area.  Some lawyers will charge as little as $500.00 to represent defendants one time, to plead them guilty in one court date.  On the other hand, it is also possible to hire an attorney who values their professional services extremely highly, and you can pay $10,000.00 or more for representation as a flat fee, the flat fee being the normal fee structure in this area of law.

It is not advisable to hire attorneys on the low end of the price range. If you’re interested in pleading guilty at the first court date, you don’t need a lawyer to help with that. Most low fee lawyers are either very inexperienced, or have a high volume law practice, and are not motivated to work hard to get the best possible result for his or her clients.   On the other hand, at the high end of the price range, an expensive attorney might be including costs, such as trial, or experts, that are not needed in your particular case.

Because of our ability to use technology to keep overhead costs low, our California DUI attorney is able to pass the savings to our clients and to offer quality representation at an affordable price.  Our pricing is below the average price of other law firms in this field of law, considering our years of experience and track record.  We pride ourselves on doing the very best we can to help our clients minimize, or avoid the punishment for a conviction for DUI in every way possible.  Not only do we spend substantial time in education and special training to become true experts in California DUI defense, but we also do our best to have competitive pricing.

We have discounts for students, for the present and past military service, and we accept all forms of payment and offer affordable payment plans with nominal down payments.

 Why Hire Us for Your DUI Case?

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With impeccable credentials, hundreds of great results in DUI cases, and over 23 years of courtroom and trial experience, Miller and Associates is the right choice for any case where you need a California DUI attorney.  We are known for no-nonsense, honest legal representation.  If you do not need an attorney for your case, of we cannot help you, we will let you know that up front.

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Under 21 DUI – California’s Zero Tolerance Laws

Under 21 DUI – California’s Zero Tolerance Laws

Criminal Conviction for DUIUnder 21 DUI – California’s Zero Tolerance Laws: Minors who are facing an underage DUI face not only a citation, but the additional punishment that is built into the structure of the law itself.  That includes the harsh penalties contained in California’s Zero Tolerance Laws. This page discusses in detail aspects and related punishments from an Under 21 DUI which apply to all Underage DUI cases, or any DUI or possession of alcohol for a Minor.

The law regarding Under 21 DUI – California’s Zero Tolerance Laws

If someone is caught driving under the influence, and they are under age 21, they can be charged with a number of offenses.  That includes the following:

  1. Driving under the influence of alcohol or drugs under 21 -California Vehicle Code Section 23136(a) VC – driving with a blood alcohol level of .01% or higher when under age 21.
  2. Under 21 DUI with a blood alcohol content of 0.05-007 percent, which is illegal under California Vehicle Code Section 23140 VC;
  3. Driving under the influence of alcohol and/or drugs – California Vehicle Code Section 23152(a) VC, which applies to persons under or over 21;
  4. Driving with a blood alcohol content of 0.08 percent or higher – California Vehicle Code Section 23152(b) VC, which applies to persons under or over 21;

How does the law decide what charges to bring?

The law for each crime is different.  Law enforcement, and the prosecutor’s office, usually decides which charges to bring based upon the age, and alcohol level, involved.  Under California law, you cannot be charged with two crimes from the exact same conduct, for double jeopardy reasons, so you can only be charged or convicted of one of the crimes below, with the exception of VC 23136, which is civil in nature, and can be added to any charge of VC 23140, or VC 23152.

Vehicle Code VC 23140  – Driving Under 21 with a Blood Alcohol Level of .05% or greater

VC 23140 – Under 21 DUI – California’s Zero Tolerance Laws – The VC Statute

Vehicle Code 23140 VC reads: “(a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle. (b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.”

VC 23140  Punishment and Penalties

Vehicle code 23140 VC is an infraction, not a misdemeanor or felony DUI.  As an infraction, it cannot carry jail time, and is more of the nature of a traffic ticket.  However, it does have the following penalties by law, if you are convicted of this charge:

  • A fine of $100 or more;
  • Attendance at an alcohol school or alcohol education classes for three months, if you are over 18; and
  • Through the DMV, suspension of your driving privileges for one year.

An underage .01 DUI will also stay on your record, unless it is specifically later cleared through an Orange County expungement; and you might be required to report it on college or job applications.

Proving a VC 23140 charge

Proof of a  VC23140 DUI charge is usually made through a PAS test, or field breathalyzer.  Those are subject to any breath test defenses in a DUI. All that has to be shown is that the person was driving, was under 21, and was .01% or higher for alcohol levels, as tested on the DUI breath test.

VC 23140  Refusal

Refusing a breath test or DUI testing request by any law enforcement when you are under 21 results in an automatic one year suspension of driving privileges.  That can add to the one year suspension for underage DUI, and make your suspension two years, instead of one.

VC 23140  Defenses

Defenses to a VC 23140 charge include that the person was not driving, was not actually under age 21, and that there may have been error in the breath testing machinery.

Also, involuntary intoxication, mouth alcohol in the breath test, and a lack of probable cause for the police stop and arrest or citation, can be used to defend against this charge.  Because Listerine strips, other breath sprays, and over the counter cough syrups and nighttime cold formulas such as Nyquil, contain alcohol, those might create a false positive for alcohol consumption.

Our Orange County DUI lawyers always investigate and examine the calibration and maintenance records for the PAS device or other means of alcohol testing. Because the threshold for license suspension is so low, a PAS device that is calibrated even slightly off may throw off the reliability of the test results, which can make a big difference when the difference is between a 0.0% and a .01%, as in the case of under 21 DUI cases.

VC 23140  and other charges

Vehicle Code VC 23136  “zero tolerance” underage DUI can also be charged. This is a civil penalty, and not a crime.  As a result, it is possible to be both convicted of VC 23140 and also cited for VC 23136.

Vehicle Code VC 23136  “zero tolerance” underage DUI

This law prohibits anyone under 21 from driving with a BAC of 0.01 or above (i.e., with any detectable alcohol in his/her system) as a result of consuming alcoholic beverages.

VC 23136 is not a crime. It is a civil penalty. It was created by California law to have those under age 21 suffer a (1) one-year suspension of the defendant’s driver’s license.

It is common for minors charged with Vehicle Code 23140 (under-21 DUI with a BAC of 0.05 or above), or minors charged with Vehicle Code VC 23140, to also face the penalty under Vehicle Code 23136.

The law – Vehicle Code VC 23136:

(a) it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.

(b) A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years, and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

A Vehicle Code 23136 accusation is appropriate to anybody below the age of twenty-one who drives with a blood alcohol concentration (BAC) of at least 0.01% . Those drivers are recognized under California’s “zero tolerance” law for underage DUI. Being accused can lead to your driver’s license being suspended for one year by the California DMV under the under 21 DUI – California’s zero tolerance laws.

Related charges for Underage DUI

Additional charges involving underage drivers and alcohol include a minor carrying or possessing alcohol, whether the container is open or not, in your vehicle.  Also, using a fake ID or the real ID of an older person to obtain alcohol, or even to ride as a passenger in the car and possess alcoholic beverages, can all be illegal..  These offenses can be separate offenses or be compounded with your DUI charge and result in harsher consequences.

California Vehicle Code 23224 VC – Possession of Alcohol in a Vehicle Under Age 21

A closely related law to the DUI under age 21 is VC 23224, possession of alcohol in a vehicle by a person under 21. Under this California aw, people under 21 may not carry alcohol inside a vehicle as an open container, unless:

  • the container is full, sealed, and unopened, and
  • they are:
    • accompanied by a parent or other specified adult,
    • getting rid of the alcohol because their parent or such an adult told them to, or
    • carrying it as part of their job working for someone with a legitimate liquor license.

Vehicle Code 23224 VC Penalties

Violation of Vehicle Code 23224 VC is a misdemeanor, and as a result, carries more serious penalties than an Under 21 DUI under VC 23136 or VC 23140. Penalties include all of the following:

  • One-year driver’s license suspension;
  • up to $1000 fine;
  • vehicle impoundment for up to 30 days

Charges of Vehicle Code section 23132 under age 21

In addition to the above, a driver under the age of 21 can still be charged with an under 21 DUI – California’s zero tolerance laws. California Vehicle Code section 23152 VC, allows prosecution just like an adult. The zero tolerance violation will be added to the DUI charge, resulting in the same penalties an adult would face (several thousand dollars in fines, probation, potential jail time or community service, and the mandatory alcohol education program) in addition to the one year license suspension.

How to get your privilege to drive back if you have a suspension- the Critical Need to Drive Application

While the under 21 DUI – California’s zero tolerance laws sets up a harsh punishment for any type of minor DUI, there is the possibility of driving again during the suspension period.

Under Vehicle Code 13353.8 when an order suspending your driving privilege is issued because of any violation of Vehicle Code 23136 (a), the department might lift restrictions on an individual’s driving privilege based on a presentation of a “critical need to drive.”

When you are eligible for the DMV Critical Need to Drive

You are only able to get a critical need to drive license from the DMV, after your license is actually suspended, and only if you do not have any of the following:

  • Priors: Within a decade of the present violation of Vehicle Code 23136, the driver has no other significant record such as have previous APS action or conviction;
  • Refusal: The driver has not been suspended or cancelled for refusing to take a PAS or other chemical test;
  • No actual critical need: The driver has not shown an actual need to drive, or there are other alternatives available to the driver for transportation.

What is considered a critical need to drive?“

The DMV’s  definition of a “Critical need to drive” is looked at in four categories.  You can apply using more than one category.  If approved, you would have a California restricted license, as allowed under Vehicle Code 12513, limited to driving for purposes under one or more of those categories.

The four categories of critical need to drive:

  1. To and from school or work
  2. For family illness
  3. For family enterprise and/or business
  4. For medical purposes (for yourself or for another

An application for Critical Need Restriction, DS 694, must be finished and presented to the Office of Driver Safety Mandatory Actions Unit headquarters, in Sacramento, California. If it is approved, you must pay a reissue fee of one-hundred and twenty five ($125) dollars and submit a California Insurance Proof Certificate, known as a SR 22. Once the application for critical need is approved, the suspension may be lifted and you can get a license to drive under the terms of the critical need application, despite the harsh under 21 DUI – California’s zero tolerance laws.

Critical need application approvals:

You should know that, according to the DMV, most critical need applications are denied.  The DMV considers these licenses to be severely limited, and only granted in extreme need in situations where all other transportation is inadequate. We have had success in detailing our client’s need to drive, and the unavailability of other options, by submitting substantial documentation along with the application, which greatly increases your chances for success.

How an attorney can help with an Underage DUI

We can professionally handle your underage DUI matter, and do everything in our power to minimize the impact of the under 21 DUI – California’s zero tolerance laws on your license and your criminal record.  That may include in many cases fighting the charges to dismissal of the case, or negotiating with the court, or the prosecutor, for a different charge, that avoids the punishment under the charges filed.  We have helped many families facing an under 21 DUI case, and can help you also.

Contact us

Contact us

Contact us today.  We can begin work on a strategy to keep you driving and avoid the long term problems of a mark on your driving record, or a criminal record. The Under 21 DUI – California’s Zero Tolerance Laws do not have to keep you from a record, or from driving, if handled correctly.