Orange County DUI Defenses

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Category Archives: blog

Orange County DUI Defenses

Blood Alcohol DUI Defenses

Orange County DUI Defenses

Being arrested or charged with a DUI in Orange County can be one of the scariest and stressful events you have ever faced. For the vast majority of people charged with a DUI, it is the only time they have ever been faced with a criminal charge in their lives.
As a result, not only the jail experience, but the overall case is an extremely frightening thing to face. Whether it is your first time in the criminal justice system, or you’ve been there before, you will have to make a decision about whether to hire an attorney or which attorney you should hire to represent you. There are many attorneys who claim to “handle DUIs” but only take your retainer fee and just as quickly take the first offer that comes from the prosecutor.
This is usually not in your best interest. Nor is it in your best interest to hire a DUI lawyer that does not have the experience or training to know what to look for in a case to prepare your best defense – – or how to present a defense to a Court or Jury.

SHOULD I HIRE AN ATTORNEY?

The easy answer is YES. Of course, you should. Think about it this way – – If you had a medical condition that required surgery, would you EVER consider operating on yourself. While not usually life-threatening, the permanent consequences of a DUI conviction can be very serious – – they can include jail (or prison) time, suspension of your driver’s license, fines, massive increases in auto insurance costs, towing and impound costs, alcohol evaluations, DUI school and victim impact classes – – the list goes on and on. With such an exposure to your personal financial health, why would you EVER consider going it alone?
A competent and effective DUI defense lawyer knows how to address your case. The same as a trained doctor knows how to prepare you for surgery; an experienced DUI lawyer knows how to prepare your case. With the right training, experience and expertise, a DUI defense lawyer, such as Orange County DUI Attorney Robert Miller, will know how to investigate the facts of your individual case, research the law (both statutory laws and case precedent), attack the police reports and forensic science in your case and ultimately effectively present your defense to the prosecutor, judge and, in some cases, the jury. Good DUI lawyers recognize issues that will help your case and know how to develop those issues into a good defense. A good DUI lawyer won’t just take your money and tell you to take your first plea offer.
What does this mean? It means that unless you are comfortable just rolling over and taking all the punishment, costs and PERMANENT CONSEQUENCES that come with a DUI conviction, you should ALWAYS hire an experienced DUI lawyer to look out for you, your freedom and your financial health. Don’t do it alone.

WHAT ATTORNEY SHOULD I HIRE?

The attorney-client relationship is a very important, and personal, choice. Who should you hire? Here are some questions to ask that will help you make the right decision.
1. What areas of law do you focus on?
Not all lawyers are the same. Not all lawyers have the same level of training and experience. There are literally HUNDREDS of different specialties and sub-specialties in the field of the law. The best contract lawyer in your State might be the worst at litigation. You may know a superstar civil litigator who knows NOTHING about criminal defense and the defense of DUI charges. If you had a toothache, you wouldn’t go to a podiatrist. The same principle applies to DUI cases. To fully understand the complexity of a DUI charge and be able to thoroughly and effectively defend against one, the lawyer you choose simply must have the training, expertise, and focus of practice to be able to best represent you. While any lawyer can tell you “I handle DUI’s” – – make sure the one you hire focuses a large portion of his or her practice to criminal defense, and specifically DUI related cases.
2. What kind of training do you have?
Don’t be afraid to ask your potential attorney what training he or she has undergone in the field of DUI’s. Lawyers are required to attend continuing legal education, or “CLE” courses every single year to maintain their licenses. A top DUI attorney will attend these sessions in the field of DUI law as to stay on top of the trends and developments that will best help them defend against these types of charges. Your lawyer should be able to tell you what types of classes and seminars they have attended and what the topics covered were. A well versed DUI lawyer will have the latest and best training in issues unique to DUI law, including police procedures, forensics, field sobriety tests, breath tests, blood tests and constitutional law issues.
3. What kind of experience do you have?
While training is extremely important, it is also very important to have a lawyer with real, courtroom experience in these types of cases. Ask your lawyer how well he knows the prosecutors, judges and court staff in Court’s your case is being handled in. Ask your lawyer if they have tried cases, specifically criminal and DUI cases. If your lawyer can’t answer “yes” and can’t give you examples of the Court’s they have litigated in, they probably aren’t worth your time.
4. Will I be able to talk to you personally?
Many lawyers make it difficult to talk to them personally once the client is signed up and the retainer is paid. While it is extremely important that your lawyer has competent and personable staff to handle some administrative duties related to your case, you should be able to discuss the legal issues directly with your lawyer. A good DUI lawyer cares about you and your case. Make sure you like the lawyer that will be looking out for you. Make sure he or she is available and willing to answer all your questions, explain the process and help you through this difficult time in your life. It’s unreasonable to expect a lawyer to drop whatever he or she is doing and take your call the minute you ask, but it is just as unreasonable for your lawyer not to call you back within twenty-four (24) hours and take the time to discuss the case with you.
5. What do you charge?
This is an extremely important question to ask your potential lawyer. A quality DUI lawyer, after having heard the facts of your case and knowing the potential charges against you, should be able to quote you a fee – – and tell you what that fee covers. BEWARE – – if your potential DUI lawyer tells you “we charge the lowest prices in town” or “this is half of what you can expect to be charged at the firm down the street” – – RUN! You want a lawyer that has YOUR best interest at heart, not his or her own. If a lawyer charges you huge “discounted” rates, it’s because they are not giving your case the attention it deserves or running a volume mill of DUI cases to make up for the lower fees. Often these lawyers appear on your case one or two times, and take the first offer the prosecutor gives them! When faced with a criminal charge that has permanent consequences like a DUI, you should KNOW that your lawyer is dedicating the time necessary and fighting as hard as possible for you. If your lawyer takes your case for a “sales price,” along with 100 other individuals in the same boat, who is he or she looking out for? It likely isn’t you. Think about it this way, if a butcher put a stack of meat outside his butcher shop on a table with a sign that said “meat – ½ price” – – would you expect a nice filet mignon dinner? Or would you wonder why the meat was so cheap? You can always find a “lawyer” who will charge a lesser fee, but most of the time these types of attorneys simply do not have the education, training or experience to understand the complexity of DUI law and won’t do the work necessary to present a good defense in your case. Your lawyer should be able to quote you a fee, defend it, and tell you exactly what you get for it. Don’t be afraid to ask.
6. Can you guarantee me a certain outcome?
This is perhaps the single most important question to ask a potential DUI lawyer. If the lawyer tells you he or she can guarantee a certain outcome, politely thank them for their time and get up and walk out the door. Nothing is ever guaranteed in a DUI case – – or any criminal case for that matter. To do so is dangerous and a direct violation of the lawyer’s ethical obligations to his or her client. It is impossible for an attorney to tell you based on a conversation what the outcome of your case will be. To properly evaluate a case, an attorney must review all of the evidence, legal issues, and other numerous other variables. This simply can’t be done based on a conversation or two. You want a lawyer who can tell you, based on experience and knowledge, what types of scenarios you can expect in a case – – but you NEVER want a lawyer to guarantee you ANYTHING.

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If you have been arrested for a DUI, or know someone who has, we can help. Contact us today.

Orange County DUI Checkpoints January 26, 2018

Orange County DUI Checkpoints January 26, 2018

Orange County DUI Checkpoints January 26, 2018

The Orange County Sheriff’s Department has DUI saturation patrols that are planned for this weekend as Orange County DUI Checkpoints January 26, 2018.  Remember that you should avoid the long waits and traffic tie-ups from DUI checkpoints, but also can avoid being arrested for DUI in Orange County at a DUI checkpoint by doing any one of the following:
Unfortunately, the statistics show that DUI checkpoints are a bad idea, and do not work to keep drunk drivers off the road, especially when compared to the much much more effective saturation patrols. Even the police admit as much.  Consider the following comment from a police officer from social media:
“Cop here! DUI checkpoints are not about catching drunk drivers.  DUI checkpoints are a dog and pony show… their sole purpose is to be public events, that is why they must be announced ahead of time by law.  It’s long been known in the law enforcement community that the best way to “fight” drunk driving is by saturation patrols, or, cars that do nothing but hunt/respond to drunk drivers.  Feel free to make this as public as possible.”
The following are the DUI Checkpoint Activity – in this case, Saturation Patrols in Orange County announced for this weekend.

Dana Point DUI Saturation Patrols

One of the Orange County DUI activity was announced by the OC Sheriff’s Department, who are holding saturation patrols in the City of Dana Point, scheduled on Friday, January 26, 2018, from  6:00 p.m. to 2:00 a.m.
According to California DUI case law, DUI checkpoints are legal in California, although they have to meet certain strict criteria, including advance publicity, which is how we find out about DUI checkpoints in Orange County.
If you need the help of a DUI attorney Orange County who is experienced in handling DUI checkpoints cases, we can help you, or your loved one.  Consult with us today.

Congratulations to the Fall 2017 Scholarship Winner

Congratulations to the Fall 2017 Scholarship Winner

All of the lawyers and staff members at Miller & Associates are dedicated to helping our local and nationwide communities build strong foundations that can enable us to take part in a brighter future. Our students are our future, and helping them helps all of us.

In the past, we started a scholarship that gives us the ability to help students forge that strong foundation. The submission period for that scholarship, Fall 2017, just came to a close. We were truly humbled by the number of scholarship applications we received– 157 total– as well as the exceptionally high quality of every essay. All of the essays were outstanding, and carefully reading and reviewing to choose just one winner was difficult!

We’re pleased to announce we’ve chosen a winner.

Congratulations to Genoveva Dimitrova of Marietta, Georgia!

Congratulations to the Fall 2017 Scholarship Winner

Genoveva is currently a student with plans to become an actor.

The topic that Ms. Dimitrova chose was one of the several available in  the submission period. It was:

  • What challenge(s) have you faced in order to get to where you are today, and how have these challenges shaped who you are, and how will you apply what you have learned from these challenges towards your career goals?

Genoveva took a difficult topic and navigated it with ease, crafting a very personal essay that encourages readers to look at the issues and dangers facing young people. Here’s her winning essay:

Miller And Associates Educational Essay

There’s always that one event in everyone’s lives that changed them forever. They became different afterwards, whether the change is almost immediate or if the change creeps up years later. For me, it happened when I was five years old. I didn’t know what was happening at the time or the impact that it would have on my future. It took until I was nineteen years old for the change to show its ugly head, well ugly in my case. These changes, whether they were good or bad, have shaped our personality, habits, emotions and connections/interactions with other people. They have shaped how we view the world. They have shaped out lives.

When I was five years old, I was molested by a family member, who was only a few years older then me at the time. I had no idea what the world was like and it was changed before I could even find out. I didn’t know the repercussions that would take place as a result of a seven-year old’s curiosity gone wild. Never the less, it molded me and planted habits in me that I didn’t understand until I was much older. I didn’t really understand the connection between love and sex; I’m not entirely sure I do now but that’s a topic for my therapist. As I grew older, I realized that I was always more comfortable in a sexual situation then I would be if I was on a date and had to make conversation. My first year into college, everything that I repressed when I was only a child came out and I began to have flashback of the incidents. As a result, it was hard to be with anyone for a lot period of time.

That is why I chose to be an actor. I can’t rewrite the past. I can’t change what happened to me. But what I can do is help prevent at least one other person from the experience that I went through. That’s where the arts come in. The arts, whether it’s theatre, music, movies or art, is the best place for bringing issues that are usually hard to talk about to the surface. Theatre allows problems to be shoved in people’s faces where it’s hard to ignore them. It presents a mirror to society so they can see all the beauty as well as all the faults. However, it’s the moments after the play that are the most important. Whether people thought the play was bad or good, they leave the theatre discussing the ideas that were posed in the form of entertainment. These ideas tend to creep back into their head for hours, days and maybe even weeks after. They’re at work getting snacks from the vending machine and something reminds them of the play they recently saw. They might even talk to their co-workers about it or maybe they just ponder the ideas for a few moments. That’s all that is needed, a seed. Once that seed is planted, it will eventually grow on it’s own, slowly but surely.

Something horrible happened to me but I am a strong believer that everything happens for a reason. I found my reason and it was presented to me through my passion. I won’t lie and say that I completely understand the exact circumstances that lead to a seven-year old boy to be compelled to do those things to a five-year old girl. However, I have learned contributing factors that encourage those kinds of actions. For example, our society is very explicit now-a-days. Kids are starting to see men and women more sexualized at a way earlier age. Naturally they have reactions to such explicit material but they are not young enough to fully understand these feelings or the consequences that occur if they decide to pursue them. According to statistics. Sexual abuse or exploration that happens between children is the least talked about; it occurs to about 20% of children and that’s just the ones that report it. I want to use my experience and my career to give a voice to those that lost theirs when they were too young to defend themselves.

As a woman, we always have to be on guard. We have to be aware of our surroundings if we are leaving the store late at night. We have to be aware of our surroundings when we are going to work. We have to be aware at all times. Ask any woman and each one will have a story involving a situation where she was forced to do something she didn’t want to or she was made to feel like an object instead of a person. I got out of rehearsal last week at around 9:30pm and I ran out of detergent earlier in the week so I decided to stop by Target on the way home. It takes me about a 15-minute walk to get home and a 7-minute longboard ride. I live in downtown Chicago so it’s pretty well lit and there’s usually people still out at that time of the night. While I was at Target, I noticed a man following me through several different aisle of the store. He was making direct eye contact that still gives me the creeps when I think about it. He had only one item in his cart and didn’t look like he was very interested in getting anything else. He followed me all the way to the check out counters.  After I checked out, I decided to be safe and wait for him to leave first before I left home. However, after he paid for his drink, he came and stood next to me. I ended up getting a Lyft home and a Target employ walked me to my car. I might have over-reacted and maybe it wasn’t what it seemed like but I couldn’t take that chance. I hate that I didn’t feel safe enough to walk home. This is a very small example of a very big problem and this is a best case scenario.

I have become stronger and more resilient as a result of of the challenges that I have had to face. They have made me into the person that I am now and I wouldn’t change it even if I could. These challenges, as rough as they have been, have gave me a purpose and I can use that purpose to make a difference in the world, no matter how small. I can use my stories to prevents others of having to go through what I did. The only way that I know how to do that is through theatre and I intend to use it to my best ability to spread my messages.

———————————–

For more information on the next Miller and Associates scholarship period which will be for Spring 2018, please see our law firm’s scholarship page for updates within the next week. Congratulations again, Genoviva! May all your dreams come true.

Advantages of Breathalyzer and How It Works

Advantages of Breathalyzer and How It Works

Advantages of Breathalyzer and How It Works

“Do not drink and drive” is a common quote that is hardly followed by the people. In spite of some progress in last few years, drunk driving claims nearly 10,000 lives and costs almost $194 billion each year in the USA. Seeing this scenario, it becomes highly required to install an alcohol detection system in the car that can help avoid DUI – Driving under influence.

But if you are unaware of this device, you must read ahead to learn more about alcohol detection systems so that you can enjoy the driving safely:

Alcohol has been a responsible factor of approximately one-third of fatal crash, accidents, and deaths. Drunk driving is dangerous for a driver, the passenger and well as the pedestrians. But, the future is near when the car itself will not let you drive if you are drunk or have consumed alcohol more than the legal limits.

Technology has potential solutions to prevent or take control of certain situations. Alcohol detection system is a part of this advanced technology. You are unable to drive once the system detects intoxicated driver with BAC – Blood Alcohol Concentration at or above 0.08% through the provided breathalyzer. This is the possible best solution, for now, to minimize or eliminate drunk driving and the loss it causes.

According to a trustworthy survey conducted in the beginning of 2017, the ignition interlock systems have prevented over 1.77 million drunk driving attempts across the USA. So when the festive season is nearest, you would want to make sure to not to be pulled over by police enforcement and spend holidays in jail. That is indeed an awful thing because nobody wants their license being canceled or paying a hefty amount of fines.

What possible options can you have to avoid all these situations and drive safely and happily? The answer is to install an ignition interlock device in your vehicle. This little thing can be greatly helpful as any amount of alcohol affects your driving skills and vision. So get it installed in your car, but how?

First of all, you have to find a federal and state certified company that provides services for interlock ignition device in vehicles. The procedure goes as below that can guide you step by step:

Installing

A skilled technician installs the alcohol detection device in your vehicle at first and then the client gets the training for how to use it. The installation time of ignition interlock takes 2 to 3 hours.

– Guidance

Once the installation work is finished, the driver gets instructed by a staff member about how to operate it. That way, you feel comfortable and confident to do it by yourself. Practice can make it more easy to use.

– While driving

The IID – Interlock Ignition Device advice you whenever a breath sample is needed even when you are driving on the road and ignition, has been on for a while. It is called a rolling re-test which is important to ensure no alcohol is consumed after the engine has been running for a while.

You get 3 minutes to provide a breath sample and if you fail 3 times in 3 minutes, the system asks you to pull over the vehicle. It does not shut the engine off; Find a safe place to stop the car, turn off the engine and try again to provide a sample.

– Calibration

The device can be calibrated at the service center every 2 months or say 60 days. A text or call you receive as a reminder before a week of the service day. Also, the device displays the date by which the calibration should get done. It is crucial to have Interlock Ignition device as it is a life savior. So get the breathalyzer installed and drive safe, drive happy!

Why do people stay in abusive relationships?

Why do people stay in abusive relationships? 

The question which frustrates police officers, prosecutors, judges, caseworkers, counselors, ER doctors and nurses, family and friends is the title of this article. Those who work with both victims and perpetrators of domestic violence in any capacity will ask themselves this.

They will spend months with women who have been abused, listening to their stories of beatings, rape, threats, and insults, their beloved pets being killed, their valued possessions smashed, and their children too often witnessing violence or being drawn into it.

In therapy, the roots of the violence, and often the acceptance thereof back to their experience in their developmental years will be processed. The warning signs their abuser showed early in the relationship will be identified, as will any patterns they have of choosing abusive men.

Therapists will examine how they couldn’t fix their alcoholic, addicted, abusive, molesting father, so they have a compulsion to find men just like their father and fix them.  New behaviors will be gradually learned, to develop self-confidence and self-respect.

Options for a safe exit plan or for the successful prosecution of their abuser will be laid out. They get restraining orders, a job, a new place to live and start presenting themselves with a new found confidence as they create distance between themselves and the predator that has victimized them.

Then they go back to them. They still love him. He’s a good man. He’s changed. He stopped drinking. It wasn’t so bad. You have to take the good with the bad in a relationship. Or they go out and find another man who could be his twin brother as far as behavior goes.

The legal definition of domestic violence varies between jurisdictions. Generally speaking, it is a form of violence which takes place between people who are married or living together or are family members (United States Department of Justice, n.d.). It is violence which occurs in the confines of a relationship, and often behind closed doors. Much of it is never reported, and the victims suffer in silence.

Why do people allow themselves to be abused?

  • Financial dependence on the abuser.
  • Drug dependence, with the abuser as the supplier.
  • Children with the abuser, which will keep you linked together.
  • The proverbial low self-esteem: I can’t do any better; I know this because he said so
  • Preference for a chaos, crisis-oriented existence, and inability to be comfortable with being treated well.
  • A rigid belief that you have to make a relationship work once you are in it.
  • Repetition compulsion: The unconscious compulsion to re-live a traumatic experience in a vain effort to gain closure (Bowins, 2010).
  • Adaptation to mistreatment. Over time, anything can become acceptable. Human beings are very adaptable, but sometimes this can work against us.
  • Borderline or Histrionic personality disorders. Individuals with these personality disorders will be very dramatic, and seek out crises (Out of the Fog, 2015, Out of the Fog, 2015a).

The dynamics of violence can be complex. It is almost always an interactive process to some degree. This is not blaming the victim; the offender is always responsible for their crime. However, the victim is responsible for their safety. There are men who are narcissistic and sociopathic, who believe their word is law and enforce their law with violence. They dominate those who are weaker, though I have observed many will not step up to another man. They are very bold with a woman or child, however. There are also women who are psychotically unstable, and who do violence to the men in their lives, or their own children. Here are some closing thoughts for both men and women who are in an abusive relationship:

Ladies, if you are with a man who hits you, get away from him, it will not get better. It doesn’t matter if he says he’s sorry, or if he cries real tears; you need to get away and never go back.

Gentleman, if you are with a woman who provokes you constantly, get away from her before you hit her. One day, you may lash out in frustration, and if you are a decent man, you will never forgive yourself for hitting her.

Some people should not be together, no matter how badly they want to. Some relationships cannot be fixed. And some people are incapable of being in a relationship.

References:

Bowins, B. (2010). Repetitive maladaptive behavior: beyond repetition compulsion. American Journal of Psychoanalysis. (3):282-98. doi: 10.1057/ajp.2010.14.

Out of the Fog. (2015). Borderline Personality Disorder. Out of the Fog. http://outofthefog.website/personality-disorders-1/2015/12/6/borderline-personality-disorder-bpd

Out of the Fog. (2015). Histrionic Personality Disorder. Out of the Fog. http://outofthefog.website/personality-disorders-1/2015/12/6/histrionic-personality-disorder-hpd

United States Department of Justice. (n.d.). Domestic violence. https://www.justice.gov/ovw/domestic-violence

CNA Classes Free Info. How to Stop Domestic Abuse. http://cnaclassesfreeinfo.com/how-to-end-domestic-abuse

INFOGRAPHIC LINK

stop domestic abuse

 

 

 

Electronic Theft Crime Defenses

Electronic Theft Crime Defenses

Electronic Theft Crime Defenses

Electronic theft is not only on the rise, as monetary systems move to the internet, but also are easier for the police to investigate and for prosecutors to prosecute.  Those factors make electronic theft crimes and convictions increase year over year.  It also makes convictions rise year over year.  This page discusses Electronic Theft Crime Defenses.

This FAQ page discusses how electronic theft crimes are investigated and what is allowed in prosecuting and defending cases.  The most common situation is where a credit card payment system is diverted or siphoned from, to route payments (or sometimes false payments) to an employee or another third party.

Question: In investigating an electronic theft crime, how likely are the police to try to access an online payments system?

Answer: The police wouldn’t be able to access any online payments account unless they seek and are granted a search warrant, are granted access by permission of the account owner, or ask the prosecutor to issue a subpoena duces tecum for access to that account.  How likely that depends on the quality of the specific evidence that points towards criminal activity.  A judge wouldn’t issue a warrant unless there is “specific articulable evidence that a crime occurred, or is occurring.” I don’t have all the evidence in this case to review, but it sounds as though there might be enough for a warrant.  With a subpoena, they only have to show it’s more likely than not (51/49%) that the subpoena will produce relevant evidence.  Given the problems with the account you described, and the lower standard for a subpoena, that might be more successful, but the police will usually, as a matter of procedure, try the warrant first.

Q: How likely are police to succeed in getting records in an electronic theft case?

A: Again, that depends on the specific facts and evidence the police have before using specific tools to access this account.  The police wouldn’t be able to access the online payments account unless they seek and are granted a search warrant, are granted access by permission of the account owner, or ask the prosecutor to issue a subpoena duces tecum for access to that account.  How likely depends on the quality of the specific evidence that points towards criminal activity.  A judge wouldn’t issue a warrant unless there is “specific articulable evidence that a crime occurred, or is occurring.” I don’t have all the evidence in this case to review, but it sounds as though there might be enough for a warrant.  With a subpoena, they only have to show it’s more likely than not (51/49%) that the subpoena will produce relevant evidence.  Given the problems with the account you described, and the lower standard for a subpoena, that might be more successful, but the police will usually, as a matter of procedure, try the warrant first. If the account owner consents to provide information or agrees to give access, no legal warrant or subpoena is needed, as there is consent.


Q: Can anything be done by the defense to stop this?

A:  With a warrant, there is a criminal motion to quash a warrant from being granted, or being used.  That can be served on the police and prosecution and used to stop an illegal warrant.  With the subpoena, there is likely third-party information being revealed.  Third parties would have a privacy interest in protecting private information, such as their credit card information, order history, name, address, and date of birth (if in the system).  Objecting to the subpoena as a third party based upon privacy rights and obtaining an injunction preventing release of the information via court order (from a civil court or an appeals level court) has been very successful in stopping or blocking this type of information from being released until the court system can analyze the data and see what, if anything, can be released protecting the privacy of others, which can take six months to a year. If the delay extends the investigation beyond the statute of limitations for the crime, this tactic alone may cause the case to be dismissed, or never filed in the first place, and would make it impossible to bring charges in the future.


Q: If an electronic order confirmation email was deleted after sending, how easily can these be recovered?

A: This is really a technical question, that depends on the email system used, the backup and storage methods, and the company’s policy regarding deleting, or backing up and saving old information.  From a legal point of view, I have no idea.  There is no legal requirement to save emails in most industries.

Q: How should he respond if being accused of being involved in, or a defendant in, an electronic theft crime?

A: This question is one permutation of the age-old question about what to say if accused of a crime.  Almost 100% of attorneys and most judges will tell you it’s best not to say anything.  You have 5th Amendment rights and 14th amendment rights for a reason, and that is to protect your right to remain silent.

Q: What should a defendant say if questioned?

A: That depends on the exact question asked.  Most attorneys would prefer that the accused not admit to a crime, and state that they have talked to an attorney, and the attorney has advised he or she not to make any statements regarding this at all.

Lying about it and stating they don’t know would not likely be a crime, like obstructing an investigation, or obstructing justice, but would certainly cause job consequences. 

Q: Wouldn’t it be better to attempt to fabricate some kind of explanation — That the sale was legitimate, but that the receipt was lost?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That statement cannot be used against him, as it’s fundamental constitutional right.


Q: That ticket scalping sites are somehow involved if the case involves false ticket sales?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all.


Q: That any charges made electronically were a mistake?

A: No. It is better to state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That statement cannot be used against him, as it’s fundamental constitutional right.


Q: Or, if the police do decide to pursue charges, should the alleged defendant maintain silence, and hope that either the case is dropped by the prosecutor, or that there’s some kind of semi-viable legal defense available?

A: Yes.  Most attorneys would prefer that he not admit to a crime, and state that he’s talked to an attorney, and the attorney has advised him not to make any statements regarding this at all. That’s his rights under the Fifth Amendment. Talking about it or admitting to charges, or even admitting to side issues that help prove the case is never helpful


Q: Just how likely, roughly, are the police to pursue this?

A:  This question is impossible to answer by anyone but the specific agency investigating this case.  That would depend on their resources, how overloaded they might be by other cases, what their budget is to investigate this case, how much evidence they have (including what you don’t know about yet) and their motivation for the case.  The police have a duty to investigate and report to the prosecutor’s office via reports and other evidence any time they suspect a crime has occurred.  But in the real world, they may not have enough evidence or time to handle every case.

Q: And beyond that, how likely is the prosecutor to take up the case?
A: A prosecutor has a duty to file cases where there is a good faith belief that there is a crime and it can be proven beyond a reasonable doubt (note this is a higher standard than the police investigation standard above).  I do not know the answer to this without knowing the agency involved and the evidence involved. I suspect that there may be some denial here, in that you hope that charges will never be filed.  That usually doesn’t work out well, but it’s understandable psychologically.  Most cases presented are filed with the court.  

Q: How much room is there for a good Electronic Theft Crime Defenses, getting the charges dropped on that basis?

A: That’s difficult to tell from the limited evidence here.  There may be factual defenses – facts that don’t prove a connection to the alleged defendant, or there may be legal defenses, like a lack of intent here.  But there’s not enough to guarantee a particular defense or dismissal among the variety of Electronic Theft Crime Defenses.


Q: As far as actual sentencing is concerned… are cases like these sometimes are eligible for a pre-trial diversion — Pretrial diversion is where full restitution is paid, and the defendant has to take a class, the record is cleared, and that this becomes more difficult the more money is involved.
A: Yes, especially in certain counties, like Los Angeles County, the courts rely on pretrial diversion quite a bit for first-time offenders with no criminal record.  What this is describing is usually not eligible for more serious theft or embezzlement crimes, but probation instead of prison time is a possibility for first-time offenders.  

Q: If Pretrial Diversion (PTD) isn’t possible, what charges are likely, what sentences are likely?

Q: The sentences depend very much on what charges are filed, proven, or pled to. California charges depend on the amount of issue (or the total amount taken).  Anything under $950 is a misdemeanor and has the misdemeanor sentencing range, and anything above $950 is a felony, with the felony sentencing range. What crimes are covered under electronic theft could certainly qualify as California Penal Code 487, Grand Theft, or if below $950, Petty Theft.  It could also definitely qualify as Embezzlement, which is petty theft or grand theft while under the contract or employ of an employer and in a position of trust, which would also be a misdemeanor if under $950, or a felony if above $950. This could also be prosecuted as a misdemeanor or felony fraud.  Prosecutors would usually in normal situations file both, which gives them leverage to run both sentences concurrently, or consecutively, or dismiss one as part of a plea bargain.

If referred to the Federal Attorney General, which electronic crimes often are, that would be the federal crime of electronic wire fraud, or 18 U.S. Code 1343.

As a misdemeanor, the sentencing for California crimes would be from zero jail time to one year in jail, three to five years probation, restitution, and certain additional punishment (education, community service, work programs, booking, DNA, or counseling), depending on the judge and the policies for the courthouse you are in.

As a felony, the judge would only have the choice of sentencing you to one of three state prison options – sixteen months in state prison, two years in state prison, or three years in state prison.  Before sentencing, the judge will allow the defense to bring a motion to show good cause for first-time offenders for mitigation for felony supervised formal probation in certain circumstances.

As a federal crime, section 1343 allows a judge to review sentencing briefs from both sides and proclaim a sentence up to one million dollars in fines, plus actual restitution, and up to 20 years in Federal prison.

Any of the above is a crime of moral turpitude, even if a misdemeanor.  Theft, fraud, or embezzlement crimes are a hard no for many employers, and crimes of moral turpitude make you ineligible for state or federal licenses and cause immigration or travel consequences.

Q: What difference could a good defense attorney make?

A: A defense attorney is the only one working on the defense side to challenge the evidence, block certain evidence from being used, arguing for you, presenting evidence on your side and presenting mitigation evidence on your behalf.  The difference could be a more harsh sentence and a light sentence, or between a dismissal and a conviction. A defense attorney is important enough that you will be given one by the court even if you can’t afford one, but having a plan in place now and being prepared and having a firm dedicated to your case and fighting every aspect of it and minimizing the impact on you can make a dramatic difference in your matter.


Q: Overall — How dangerous is this situation, legally speaking?

Q: Theft crimes are not “dangerous”, per se, and not “dangerous” in terms of personal harm.  But this situation is serious.  I think you’re doing the right thing by taking this seriously and gathering as much information as you can to have a plan or strategy in place and reaching out to professionals to get opinions and potentially having someone handle this situation. As you can see from the punishment above, this is serious enough to be concerned and want to fight this and minimize the impact on you as much as you can. 

Q: Is there any possibility of resolving it internally, before the police get seriously involved?

A: If the police have already been contacted and have begun looking into this (which is what I gather from your explicit statements to that effect), then they would have a legal duty to investigate this if they believe there are facts that support a conclusion that a crime has occurred.  (See above).  If I am incorrect in this, and the police have not been contacted, then an internal settlement could be negotiated (with or without an attorney), which may stop the police from being involved, or a challenge to the warrant or subpoena (see answer above) may prevent evidence from being obtained.  Many police detectives or officers will also allow an attorney to argue the evidence collected towards convincing the police not to file charges and send to the DA’s office if there is a weak case.


Q: How likely are the police to gather sufficient evidence for a viable case?

A:  This is another question that any answer would only be pure speculation. If the police have the manpower, time, budget, and evidence to gather sufficient evidence, then they could.  Not knowing any of that, I can only guess.  People often underestimate how easy it is to get and analyze electronic data, and many larger police departments have specific task forces or sub-departments just for electronic evidence retrieval and analysis. Sufficient evidence depends on whether or not they can prove the elements of the crime.  For embezzlement, for example, the criminal statute and the court instructions require proof of the following elements, each beyond a reasonable doubt: (a) An owner entrusted someone to access to property; (b) The owner trusted the defendant; (c) The defendant fraudulently acted to steal or defraud; and (d) there was an intention to steal or defraud.  If they can’t provide sufficient evidence as to each of those elements, then you would win the case at motion or at trial.


Q: Can anything be done about this?

A:  Yes.  As mentioned above, you can be proactive about challenging the evidence, or blocking the efforts to obtain evidence, or create a settlement.  You can settle the case with the employer or convince the investigating officer or detective that there is insufficient evidence.  You can also challenge the filing deputy at the prosecutor’s office that there is not a case to be filed, you can challenge the case and the charges at the arraignment in court, challenge the elements of the crime, provide defenses or defense evidence, challenge the case at trial, or provide mitigation evidence and ask for leniency in the punishment, or a reduction of the charges, or argue for the minimums allowed by law at sentencing.


Q: How likely is this 1) to be investigated, 2) to lead to arrest, and then 3) to prosecution?

A: There are unknowns, but it’s rare for a clear crime to not be investigated.  If there is enough evidence, it will lead to an arrest, and lead to prosecution. The state’s own statistics  show that over 90% of cases presented to the prosecutor are filed.


Q: What kind of sentencing is likely for Electronic Theft Crime Defenses?

A:  See above regarding sentencing ranges.  For felonies, where the court has three choices in sentencing, the guidelines for judges state that the judge must choose the mid-term (2 years), and then decide if the mitigation evidence presented by the defense outweighs the aggravating evidence presented by the prosecution.  As a first time offender, the court usually would go towards the low term or towards probation and lower jail time, rather than towards the maximum sentencing range.


Q: What kind of Electronic Theft Crime Defenses are viable?

A:  Many long books have been written on criminal defenses, which also apply to this case.  Defenses to theft include consent, lack of intent, lack of fraud, stealing, or misappropriation, factual or legal mistake, a challenge to the crimes charged by pointing out legal defenses, or that the elements of the crime cannot be proven, or mental capacity, or legal justification.

Contact our Orange County criminal defense attorney if you have questions.

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Cannabis Business Resources: Health Benefits of Marijuana

Cannabis Business Resources: Health Benefits of Marijuana

Marijuana Hemp Cannabis License Health Benefits

For your California Cannabis License, or your Orange County Marijuana Dispensary, the following list of Cannabis Business Resources: Health Benefits of Marijuana, with studies discussing the benefits of Cannabis are as follows:

United States Marijuana Patent:  Cannabinoids as antioxidants and neuroprotectants http://www.google.com/patents/US6630507

Cannabis and Skin Cancer

http://www.ncbi.nlm.nih.gov/pubmed/12511587
http://www.ncbi.nlm.nih.gov/pubmed/19608284

Cannabis Cures Lung Cancer

http://www.ncbi.nlm.nih.gov/pubmed/22198381?dopt=Abstracthttp://www.ncbi.nlm.nih.gov/pubmed/19608284
http://www.ncbi.nlm.nih.gov/pubmed/21097714?dopt=Abstract

Cannabis kills Tumor cells

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1576089
http://www.ncbi.nlm.nih.gov/pubmed/20090845
http://www.ncbi.nlm.nih.gov/pubmed/616322
http://www.ncbi.nlm.nih.gov/pubmed/14640910
http://www.ncbi.nlm.nih.gov/pubmed/19480992
http://www.ncbi.nlm.nih.gov/pubmed/15275820
http://www.ncbi.nlm.nih.gov/pubmed/15638794
http://www.ncbi.nlm.nih.gov/pubmed/16818650
http://www.ncbi.nlm.nih.gov/pubmed/17952650
http://www.ncbi.nlm.nih.gov/pubmed/20307616
http://www.ncbi.nlm.nih.gov/pubmed/16616335
http://www.ncbi.nlm.nih.gov/pubmed/16624285
http://www.ncbi.nlm.nih.gov/pubmed/10700234
http://www.ncbi.nlm.nih.gov/pubmed/17675107
http://www.ncbi.nlm.nih.gov/pubmed/14617682
http://www.ncbi.nlm.nih.gov/pubmed/17342320
http://www.ncbi.nlm.nih.gov/pubmed/16893424
http://www.ncbi.nlm.nih.gov/pubmed/15026328

Cannabis Cures Colorectal Cancer

http://www.ncbi.nlm.nih.gov/pubmed/22231745
http://www.ncbi.nlm.nih.gov/pubmed/17583570

Cannabis Cures Uterine, Testicular, and Pancreatic Cancers

http://www.cancer.gov/…/cannabis/healthprofessional/page4

Cannabis-derived substances in cancer therapy and anti-tumor properties.

http://www.ncbi.nlm.nih.gov/pubmed/20925645

Cannabis Cures Brain Cancer

http://www.ncbi.nlm.nih.gov/pubmed/11479216

Cannabis Cures Mouth and Throat Cancer

http://www.ncbi.nlm.nih.gov/pubmed/20516734

Cannabis Cures Breast Cancer

http://www.ncbi.nlm.nih.gov/pubmed/20859676
http://www.ncbi.nlm.nih.gov/pubmed/18025276
http://www.ncbi.nlm.nih.gov/pubmed/21915267
http://www.ncbi.nlm.nih.gov/pubmed/22776349
http://www.ncbi.nlm.nih.gov/pubmed/18454173
http://www.ncbi.nlm.nih.gov/pubmed/16728591
http://www.ncbi.nlm.nih.gov/pubmed/9653194

Cannabis Cures Prostate Cancer

http://www.ncbi.nlm.nih.gov/pubmed/12746841?dopt=Abstract
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3339795/
http://www.ncbi.nlm.nih.gov/pubmed/22594963
http://www.ncbi.nlm.nih.gov/pubmed/15753356
http://www.ncbi.nlm.nih.gov/pubmed/10570948
http://www.ncbi.nlm.nih.gov/pubmed/19690545

Cannabis Cures Blood Cancer

http://www.ncbi.nlm.nih.gov/pubmed/12091357
http://www.ncbi.nlm.nih.gov/pubmed/16908594

Cannabis Cures Liver Cancer

http://www.ncbi.nlm.nih.gov/pubmed/21475304

Cannabis Cures Cancer in General

http://www.ncbi.nlm.nih.gov/pubmed/12514108
http://www.ncbi.nlm.nih.gov/pubmed/15313899
http://www.ncbi.nlm.nih.gov/pubmed/20053780
http://www.ncbi.nlm.nih.gov/pubmed/18199524
http://www.ncbi.nlm.nih.gov/pubmed/19589225
http://www.ncbi.nlm.nih.gov/pubmed/12182964
http://www.ncbi.nlm.nih.gov/pubmed/19442435
http://www.ncbi.nlm.nih.gov/pubmed/12723496
http://www.ncbi.nlm.nih.gov/pubmed/16250836
http://www.ncbi.nlm.nih.gov/pubmed/17237277

Cannabis kills cancer cells

http://www.ncbi.nlm.nih.gov/pubmed/17952650
http://www.ncbi.nlm.nih.gov/pubmed/16835997
http://cancer.gov/…/cam/cannabis/healthprofessional/page4

Cannabis Treatment in Leukemia

http://www.ncbi.nlm.nih.gov/pubmed/15978942
http://www.ncbi.nlm.nih.gov/pubmed/16754784
http://www.ncbi.nlm.nih.gov/pubmed/15454482
http://www.ncbi.nlm.nih.gov/pubmed/16139274
http://www.ncbi.nlm.nih.gov/pwubmed/14692532

Cannabinoids and the immune system

http://www.ncbi.nlm.nih.gov/pubmed/11854771
http://www.ncbi.nlm.nih.gov/pubmed/19509271

Cannabis Induces apoptosis of uterine cervix cancer cells

http://www.ncbi.nlm.nih.gov/pubmed/15047233

Cannabis treatment in lymphoma

http://www.ncbi.nlm.nih.gov/pubmed/18546271
http://www.ncbi.nlm.nih.gov/pubmed/16936228
http://www.ncbi.nlm.nih.gov/pubmed/16337199
http://www.ncbi.nlm.nih.gov/pubmed/19609004

Cannabis treatment of Melanoma

http://www.ncbi.nlm.nih.gov/pubmed/17065222

Cannabis treatment for Thyroid Carcinoma

http://www.ncbi.nlm.nih.gov/pubmed/18197164

Cannabis treatment in Colon Cancer

http://www.ncbi.nlm.nih.gov/pubmed/18938775
http://www.ncbi.nlm.nih.gov/pubmed/19047095

Cannabinoids in intestinal inflammation and cancer

http://www.ncbi.nlm.nih.gov/pubmed/19442536

Cannabinoids in health and disease

http://www.ncbi.nlm.nih.gov/pubmed/18286801

Cannabis a neuroprotective after brain injury

http://www.ncbi.nlm.nih.gov/pubmed/11586361

Cannabis inhibits Cancer Cell Invasion

http://www.ncbi.nlm.nih.gov/pubmed/19914218

Cannabis partially/fully induced cell death in Cancer

http://www.ncbi.nlm.nih.gov/pubmed/12130702
http://www.ncbi.nlm.nih.gov/pubmed/19457575
http://www.ncbi.nlm.nih.gov/pubmed/18615640
http://www.ncbi.nlm.nih.gov/pubmed/17931597
http://www.ncbi.nlm.nih.gov/pubmed/18438336
http://www.ncbi.nlm.nih.gov/pubmed/19916793
http://www.ncbi.nlm.nih.gov/pubmed/18387516
http://www.ncbi.nlm.nih.gov/pubmed/15453094
http://www.ncbi.nlm.nih.gov/pubmed/19229996
http://www.ncbi.nlm.nih.gov/pubmed/9771884
http://www.ncbi.nlm.nih.gov/pubmed/18339876
http://www.ncbi.nlm.nih.gov/pubmed/12133838
http://www.ncbi.nlm.nih.gov/pubmed/16596790
http://www.ncbi.nlm.nih.gov/pubmed/11269508
http://www.ncbi.nlm.nih.gov/pubmed/15958274
http://www.ncbi.nlm.nih.gov/pubmed/19425170
http://www.ncbi.nlm.nih.gov/pubmed/17202146
http://www.ncbi.nlm.nih.gov/pubmed/11903061
http://www.ncbi.nlm.nih.gov/pubmed/15451022
http://www.ncbi.nlm.nih.gov/pubmed/19394652
http://www.ncbi.nlm.nih.gov/pubmed/11106791
http://www.ncbi.nlm.nih.gov/pubmed/19189659
http://www.ncbi.nlm.nih.gov/pubmed/16500647
http://www.ncbi.nlm.nih.gov/pubmed/19539619
http://www.ncbi.nlm.nih.gov/pubmed/19059457
http://www.ncbi.nlm.nih.gov/pubmed/16909207
http://www.ncbi.nlm.nih.gov/pubmed/18088200
http://www.ncbi.nlm.nih.gov/pubmed/10913156
http://www.ncbi.nlm.nih.gov/pubmed/18354058
http://www.ncbi.nlm.nih.gov/pubmed/19189054
http://www.ncbi.nlm.nih.gov/pubmed/17934890
http://www.ncbi.nlm.nih.gov/pubmed/16571653

Contact our law firm today

If you’re interested in starting a business growing, selling, transporting or testing marijuana, then contact us.  We can help you as a cannabis licensing attorney in Orange County.

Orange County DUI Checkpoints, Sept 8-9 2017

Orange County DUI Checkpoints, Sept 8-9 2017

DUI Checkpoints in Orange County
Orange County law enforcement have a number of DUI checkpoints and saturation patrols that are planned for this weekend.  Remember that you should avoid the long waits and traffic tie-ups from DUI checkpoints, but also can avoid being arrested for DUI in Orange County at a DUI checkpoint by doing any one of the following:

Effectiveness of Orange County DUI Checkpoints

Unfortunately, the statistics show that DUI checkpoints are a bad idea, and do not work to keep drunk drivers off the road, especially when compared to the much much more effective saturation patrols.
The following are this weekend’s Orange County DUI Checkpoints, Sept 8-9 2017

DUI Checkpoint in Lake Forest

The OCSD issued a press release notifying us that the Orange County Sheriff’s DUI Enforcement Team will hold a DUI and Driver’s License Checkpoint this weekend to stop and arrest any alcohol and drug-impaired drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held at 7 p.m. on Friday, Sept. 8, to 3 a.m. Saturday, Sept. 9 within the city of Lake Forest.  The location was not disclosed, but past locations were at Muirlands and Ridgecrest, or at El Toro Road and Cornelius Drive. 

DUI Checkpoint in Rancho Santa Margarita

Rancho Santa Margarita DUI Information.  The OCSD issued a press release notifying us that the Orange County Sheriff’s DUI Enforcement Team will hold a DUI and Driver’s License Checkpoint this weekend to stop and arrest any alcohol and drug-impaired drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held at 7 p.m. on Friday, Sept. 8, to 3 a.m. Saturday, Sept. 9 within the city of Rancho Santa Margarita.  The location was not disclosed.

DUI Checkpoint in Placentia

Placentia DUI Information.  The OCSD issued a press release notifying us that the Orange County Sheriff’s DUI Enforcement Team will hold a DUI and Driver’s License Checkpoint this weekend to stop and arrest any alcohol and drug-impaired drivers as part of the department’s ongoing traffic safety campaign.

The checkpoint will be held from 8 p.m. on Friday, Sept. 8, to 2 a.m. Saturday, Sept. 9 within the city of Placentia, on Yorba Linda Boulevard at Kraemer Boulevard.

According to California DUI caselaw, DUI checkpoints are legal in California, although they have to meet certain strict criteria, including advance publicity, which is how we find out about DUI checkpoints in Orange County.
The law states that: “A driver of a motor vehicle shall stop and submit to a sobriety checkpoint inspection conducted by a law enforcement agency when signs and displays are posted requiring that stop. ” (Vehicle Code 2814.2(a)).

Contact us.

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If you need the help of a DUI attorney Orange County who is experienced in handling DUI checkpoint cases, we can help you, or your loved one.  Consult with us today.

Orange County DUI Checkpoints Labor Day Weekend, 2017

Orange County DUI Checkpoints Labor Day Weekend, 2017

Orange County DUI Checkpoints

La Habra DUI Checkpoint

La Habra announced a La Habra DUI Checkpoint DUI checkpoint in their city on September 1st, 2017, from the hours of 7:00 pm. to 3:00 a.m.

Fullerton DUI Activity

Fullerton Police Department announced not a Fullerton DUI Checkpoint, but roving DUI patrols on 16 different nights looking to stop and arrest drivers who are impaired by alcohol and/or drugs and causing DUI in Fullerton or Fullerton DUI arrests. In addition to the roving patrols, the Fullerton Police Department Traffic Bureau will be conducting a DUI/Drivers License Checkpoint on Thursday, August 31, 2017, at an undisclosed location, between the hours of 8:30 PM and 2:20 AM.

Garden Grove DUI Activity

Garden Grove Police Department announced not a Garden Grove DUI Checkpoint, but roving DUI patrols who might be DUI or may be DUI in Garden Grove. In addition to the roving patrols, the Fullerton Police Department Traffic Bureau will be conducting a DUI/Drivers License Checkpoint on Thursday, August 31, 2017, at an undisclosed location, between the hours of 8:30 PM and 2:20 AM.

Are Orange County DUI Checkpoints legal?

If you’re wondering if DUI checkpoints are legal, they are, under California’s case law and decided cases involving DUI.  However, they are required to meet certain criteria, including advance publicity.

Under the law, some of those criteria are as follows:

  1. The location, time and duration of a checkpoint, and other regulations for operation of the checkpoint should be established (preferably in written form) by supervisors or other administrative personnel rather than the field officers implementing the checkpoint;
  2. Advance warning must be made to the approaching motorist with signs, flares and other indications to warn of the impending stop in a safe manner and to provide notice of its official nature as a police checkpoint;
  3. Detention of the motorist for a minimal length of time; and
  4. Use of systematic non-random criteria for stopping motorists.

Under the Ingersoll case here in California, it’s required that police give advance notice of a checkpoint, which is how we get notified of each one ahead of time.

Press releases from Police Agencies exist to let people know about it.  This leads to another reason why DUI checkpoints are a bad idea – those that plan ahead and are the most dangerous serial drunk drivers, or alcoholics, are the least likely to be caught in a DUI checkpoint for that reason.

Why are there Orange County DUI Checkpoints?

DUI Checkpoints are less effective than other means of removing drunk drivers from the road. Police officers even admit that. Although DUI checkpoints don’t work, police departments hope that they prevent people from driving with alcohol or drugs in the first place.  The truth is that funding from grants from the California Office of Traffic Safety (OTS), MADD, and the Federal Government ensure DUI checkpoints are used first before other measures.  It’s truly all about the money.

Contact us.

Contact us today.  Contact our Orange County DUI Defense Attorneys for questions about any Orange County DUI Checkpoint.

 

Can you sue whoever sold you the alcohol that resulted in your DUI?

Can you sue whoever sold you the alcohol that resulted in your DUI?

You may wonder whether or not a location that served the alcohol consumed by the defendant in a DUI can be sued. Like some handgun lawsuits, where families have sued those that sold the weapon used to cause injury, the theory is that if it were not for the serving of alcohol, the person would not have become intoxicated, and thus would not have become DUI. So can you sue whoever sold you the alcohol that resulted in your DUI? Are they liable? Let’s discuss that issue.

Dram Shop Acts and Liability for DUI.

Can you sue whoever sold you the alcohol that resulted in your DUI?

In states other than California, some jurisdictions have adopted what is called a “Dram Shop Act”. A Dram Shop Act is a law that lets victims and the families of victims sue the bar or establishment that served alcohol to a drunken individual that subsequently injured someone in a drunken driving accident.

In those other states, alcohol infractions are regulated by the Department of Revenue, or the Beverage Control Bureau (here in California, alcohol licenses are granted by the California Alcohol Beverage Commission), who has the authority to revoke bars and bartenders of their licenses if they are found to be repeatedly over-serving. Those states hold servers or sellers of alcohol “strictly liable” for any outcomes from drinking under the law.

Liability for serving alcohol that leads to a DUI and California Law.

California does not have a Dram Shop Act. However, studies show that states that have a Dram Shop Act tend to rarely enforce this particular law.  That may be in many cases due to resources, or due to the public or societal attitudes about the law.  It has also been suggested that focusing on the servers, bureaus and commissions responsible for alcohol are a poor way to make sure that persons do not consume from a variety of sources, as each location can only control the amounts they serve.

In California, a bar, or restaurant, could possibly be sued if they failed to follow the law (for example, serving persons under 21), or were negligent in hiring, training, or avoiding foreseeable harm to others. Only Business & Professions Code §25602 in California, which protects persons under 21, places liability on the establishment that serves an obviously intoxicated underage drinks, who then, in turn, injures another.

Under California law, however, it is extremely difficult to find liability with the bartender or establishment that sold or served the liquor consumed. California case law states that the consumption of alcohol, not the serving of alcohol, is the primary factor in DUIs.  The person’s judgment in deciding to consume alcohol in the first place puts personal responsibility on the driver, and the DMV’s rules regarding DUI, as well as the California State Criminal laws making driving above a .08% alcohol blood content, or while driving under the influence of alcohol or any other substance illegal, places that responsibility firmly on the person driving the vehicle.

So can you sue whoever sold you the alcohol that resulted in your DUI? As a matter of civil law, if you can find negligence in the failure of a restaurant, liquor store, or other establishments, to live up to a duty, there might be liability.  There could also be a potential criminal liability for bartenders or others that spike drinks, as that is a crime in California, and would lead to the DUI defense of involuntary intoxication.

Contact us.

If you find yourself facing a DUI in Orange County, contact our firm.  Our team of Orange County DUI Attorneys are experienced in handling cases in court and at the DMV and can help you plan a strategy for your case.  Contact us today.

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