Criminal Defense

Legal Defenses to Refusing a Breath Test During a California Driving Under the Influence Arrest

November 19, 2010 | Ronald N. Hoffman

When you are stopped for the suspicion of driving under the influence of alcohol, you are asked to take either a breath or chemical test at the site of the arrest. Additionally, you are asked to take a test at the station once you have been taken into custody. Whereas it is your right to refuse the preliminary breath test (the one administered at the scene of the arrest), you cannot refuse the test given at the station without additional penalty.

If you have refused to take both tests, there may be some legal defenses that will work in your favor. An experienced Los Angeles DUI attorney can prepare a powerful defense that will help strengthen any possible defenses that you may have.

One possible defense is if you have asthma and are unable to properly breathe into the machine in order to provide an adequate sample. Another valid defense is if for any reason you are physically unable to take the breath test. If there is a valid scenario rendering you incapable of giving a breath sample, you may have a defense against an additional penalty imposed due to refusal.

California Proposition 36 and its Impact on California Drug Charges

November 18, 2010 | Ronald N. Hoffman

California Proposition 36, also known as The Substance Abuse and Crime Prevention Act, is a type of Drug Diversion program that was passed by voters in November 2000. It changed State law to allow first and second, non violent simple drug offenders the opportunity to receive drug treatment education rather than incarceration.

Persons charged must complete a licensed or certified community drug education program as a part of their probation. If they fail to complete the program or violate any of the other terms of their probation, they will have to serve an additional sentence which may include incarceration.

Those that will not qualify as a candidate for Proposition 36 are those that have:

How do I know if I Qualify for California’s PC 1000 Drug Diversion Program?

November 17, 2010 | Ronald N. Hoffman

Under California Penal Code 1000, certain persons charged with drug related cases are able to get their case dismissed through the completion of drug education and awareness programs.

This section applies only to first time offenders if they meet certain requirements.

In order to qualify, the charge being brought against you must be one of the specific California Health and Safety Code sections mentioned in Penal Code §1000, as well as meeting a list of criteria outlined in the same section.

How does California’s Penal Code 1000 (PC 1000) Drug Diversion Program work?

November 14, 2010 | Ronald N. Hoffman

California Penal Code 1000 creates a drug diversion program that allows certain offenders to avoid a criminal charge.

PC 1000 allows for a Deferred Entry of Judgment (DEJ). A DEJ requires that the person charged plead guilty to an offense. The sentencing, or the “judgment”, is then deferred for 18 months. The person charged must enroll and complete required drug education and awareness programs. They must provide proof to the courts that they have enrolled in classes.

They must then return on a later court date and show proof of completion to the court, negative drug test(s) and paid administrative court fees. If all has been completed successfully, and no other offenses have been committed the person is entitled to have their case dismissed. This means that they can legally deny having any convictions on their record. However, law enforcement will be able to view on your record that you have been charged with drug possession but have completed the program and have had your charges dropped. If the program is not completed successfully, the person will be sentenced and convicted.

What is a California Drug Diversion Program?

November 12, 2010 | Ronald N. Hoffman

A diversion program is a program instituted by the District Attorney’s office that allows a defendant who has been convicted of a Drug offense to avoid criminal charges and a criminal sentence. The program is designed to help rehabilitate offenders and to alleviate the overflow in time, cost and expense to courts and probation officers.

If someone who has been convicted of a drug offense qualifies for a drug diversion program, they may have the opportunity to avoid prosecution by completing certain requirements of the program. These requirements include completing certain education courses aimed at preventing future offenses, providing restitution to the victims of the offense, completion of community service hours, and avoiding certain situations that may lead to future offenses. This may involve no contact with certain persons, or visitation to certain places.

If a program is completed successfully it may prevent the charge from appearing on a person’s criminal record. This provides huge benefits for future employment opportunities, education and social achievements.

What is the Relationship Between California DMV laws and Court Orders?

November 7, 2010 | Ronald N. Hoffman

Contrary to popular belief, the criminal court and the DMV are two separate entities, with very little connection with each other when it comes to the enforcement of sentences and potential penalties.

The Court is a judicial entity and follows its own set of laws and procedures where as the DMV is an administrative entity with its own as well. When you have a scheduled court date, it is different from your DMV hearing. Each will look at their own set of questions and requirements and may arrive at different conclusions regarding your case. The court has no control over your driving privileges; these are solely up to the DMV to be decided at your DMV hearing.

If the court reduces your DUI conviction to that of a reckless driving or exhibition of speed, the DMV still have the right to suspend your license as if you had been convicted of a DUI. The ruling found in court is not binding upon the DMV, they are free to arrive at their own conclusion based on the facts and make their own findings.

Some Commonly asked Questions in Regards to the Ignition Interlock Device Required by law in Los Angeles County

November 5, 2010 | Ronald N. Hoffman

Many of our clients have inquired about the maintenance and use of the Ignition Interlock Device. While this is all new law, being a pilot project, we have been able to answer the following commonly asked questions.

Does the device cause damage to my car and will other people be able to continue to drive my car?

Other people will be able to drive your vehicle but will have to also blow into the machine before starting the vehicle. Those that will potentially drive the car should also be educated on the use of the machine. The installation of the device will not cause damage to the vehicle, and it will be restored to the same condition it was before the installation of the device.

Can you “fool” the Ignition Interlock Device now Required in Los Angeles County by DMV law?

November 4, 2010 | Ronald N. Hoffman

There are a lot of unanswered questions surrounding the new Ignition Interlock Device now required by law in Los Angeles County for those convicted of a DUI. As with any new law, there remains many loopholes and issues that have not been accounted for. Even as a pilot project, it seems to be fairly difficult to “fool” the ignition interlock machine in any of the following ways.

Can someone use a balloon or other air source to mimic human breath, or can someone else take the test for the driver?

The device currently has anti-circumvention techniques which allow the machine to abort any phony breath samples. This allows it to instantly detect when actual human breath is not being blown into the device and will cause the machine to report the failed sample. Furthermore, you may not have someone else legally take the breath test on your behalf before starting the vehicle. According to California Vehicle Code §23247, it is illegal to have another person blow into the device or to start a vehicle equipped with the device for the purpose of allowing someone whose driving privilege has been suspended to operate a vehicle. For those who aid in the circumvention of the machine, they can be fined or served jail time under California law.

Los Angeles Sees First Effects of the Ignition Interlock Device Law

October 31, 2010 | Ronald N. Hoffman

Many of our clients have been asking us regarding the Ignition Interlock Device law that went into effect on July 1, 2010. Nothing much has happened since it went into effect, leaving many people wondering how and when it would be enforced.

This law is a part of DUI law and is separate from Court order. The DMV is the one that will enforce and implement this new law. When you go to the DMV after having completed you license suspension, you will be required to install the ignition interlock device before you can receive a restricted license.

According to the law those that are convicted of a first time DUI offense will have to install the device for 5 months. Those with a second time DUI offense will install the device for 12 months, third time for 24 months and fourth time offenders for 36 months. Those with more enhanced or aggravated DUIs convicted under Vehicle Code 23153 will be required to have the device in their vehicle for a longer period of time.

What is considered to be “Possession” in a Southern California Marijuana Possession charge?

October 29, 2010 | Ronald N. Hoffman

As most terms in the legal field, the word Possession is loosely defined, and as a result many different scenarios may fall under the appropriate meaning for Possession when it comes to a possession charge.

Typically possession will include any drug that is found on your person. This is referred to as physical possession. If it is in your pocket, in your shoe, etc, it will be considered on your possession. This, however, constitutes the simplest definition of possession.

Any type of drugs will also be in your possession if they in an area within your immediate control. This is referred to as constructive possession. If it is in your vehicle, in your trunk or in your purse, it will still qualify under the requirements. It will also be considered constructive possession if someone else is carrying it on your behalf.