Orange County Criminal Attorney Blog

An Orange County Sheriff's Deputy reportedly pleaded guilty to driving under the influence last week. According to prosecutors, Mario Manuel Castro, age 33, left a bar in Costa Mesa at about 2:00 a.m. on September 30, 2011, where he had consumed a number of drinks while off-duty. Police arrested him when he drove on the wrong side of the road directly towards a patrol car from the Orange Police Department. The arresting officer stated that Castro "displayed objective signs of alcohol intoxication," which included a strong smell of alcohol and "unsteady balance." Castro's blood alcohol content was reportedly .24 percent, three times the legal limit of .08.

Prosecutors charged Castro with two misdemeanors and a sentencing enhancement, and he pleaded guilty to all three. The misdemeanor charges were driving under the influence of alcohol with a prior DUI conviction and driving with a blood alcohol level of .08 or greater with a prior conviction. Castro was convicted in 2009 of driving under the influence of alcohol in Los Angeles County. The sentencing enhancement was for driving with a blood alcohol level over .15 percent. The court sentenced him to sixty days in county jail followed by five years of probation, and he must complete an eighteen-month "Multiple Offender Alcohol Program" and a "Victim Impact Panel" presented by Mothers Against Drunk Driving.

The Orange County Sheriff's Department says that Castro left the department on or about February 22. Castro had remained on active duty while an internal investigation was underway. A department spokesperson reportedly would not say whether Castro was terminated or resigned.

All U.S. states have established .08 percent as the legal limit for DUI offenses. In some cases, a lower limit may be imposed, such as for people on probation for a DUI offense or people operating commercial vehicles. Defendants charged with DUI may face additional charges or penalties for blood alcohol levels significantly higher than .08. The federal government has conditioned various appropriations to the states on state legislatures keeping the legal limit at or below .08 percent.

"Repeat offenders," defined in California Vehicle Code Section 23217 as persons convicted of multiple DUI offenses within a ten-year period, may be subject to sentencing enhancements. The statute declares that repeat offenders may be "escaping the intent of the Legislature" to impose harsher punishments for subsequent offenses. The law therefore allows greater penalties for each additional DUI offense within a given period of time.

Continue reading "Orange County Sheriff's Deputy Convicted of DUI, Sentenced to Sixty Days in Jail" »

A Florida appellate court heard arguments last week regarding forced blood DUIs. California addressed this issue, which is known to have major effects on DUI cases, some time ago.

California has the "implied consent" rule which in effect states, in return for a valid California Driver License, a person implicitly consents to a blood or breath test under certain circumstances. The law allows law enforcement to use force in obtaining a blood test as long as it is not obtained by the use of unreasonable force or for an improper purpose.

Upon an arrest for driving under the influence, a police officer will advise the suspect of the requirement for a chemical test of blood or breath. There is a chemical test admonition form used for this purpose [C.V.C. § 23612]. This form, which allows the peace officer to document the advisement, states:

1. You are required by state law to submit to a chemical test to determine the alcohol and/or drug content of your blood.
2a. Because you are under the influence of alcohol, you have a choice of taking a breath or blood test.
b. Because I believe you are under the influence of alcohol or drugs, you have the choice of taking a blood, breath or urine test.
c. (when applicable) Since the blood and breath test is unavailable, you are deemed to have given your consent to chemical testing of your urine.
d. (when applicable) Since you need medical treatment, your choice is limited to...
3. If you refuse to submit to, or fail to, complete a test, your driving privilege will be suspended for one year or revoked for 2 or 3 years. A second offense within 10 years of a separate violation of driving under the influence, including such a charge reduced to reckless driving, or vehicular manslaughter, or a violation of C.V.C. section 23140, or a separate administrative determination that you were driving with a blood alcohol content of .01 percent or more while under the age of 21, or .04 while operating a commercial vehicle, or a blood alcohol content of .08 percent or more at any age, or refusing a test will result in a 2 year revocation. Three or more offenses within 10 years of any combination of the above violations, convictions or separate administrative determinations will result in a 3 year revocation.
4. Refusal or failure to complete a test may be used against you in court. Refusal or failure to complete a test will also result in a fine and/or imprisonment if this arrest results in a conviction for driving under the influence.
5. You do not have the right to talk to an attorney or have an attorney present before stating whether you will submit to a test, before deciding which test you will take or during the test.
6. If you cannot, or state you cannot, complete the test you choose, you must submit to and complete a remaining test.

After this is read, the responses are recorded by the peace officer.

One of the problems with this admonition is not allowing an attorney present. Although this makes sense because time is of the essence, as alcohol is continuously being burned off, people are naturally taken aback when they are told this by a police officer.

The ultimate problem with forced blood is the effect it can have on a California Driver License. If a person refuses a chemical test and an officer does not force blood, an important piece of evidence for the prosecution is missing. However, if a person refuses the test and blood is forced, then he/she is punished for the refusal, by both DMV and the Court, and the chemical test is available to be used against him/her in court.

Arizona is one of the toughest states in the country when it comes to punishing DUI offenders. One of the penalties is a one year ignition interlock device [IID]. This device will not allow a vehicle's engine to start unless an alcohol-free breath sample is received. The device is very expensive. Unlike Arizona, California does not require first offenders to install IIDs.

There is now a move underway in Arizona to decrease, or even eliminate, the requirement of an ignition interlock device for first offenders. SB1000 would decrease it from one year to 6 months, while HB2371 would eliminate it altogether. SB1000 is an effort by Senator Linda Gray to defeat HB2371, which is much less punitive.

The issue present in Arizona is consistently litigated across the United States. The issue is not the IID but the search for just punishment. Many people believe in harsh penalties for people convicted of driving under the influence. This is true even if there was no injury or aggravating factors. The problem with this type of logic, however, is that it is often counterproductive. It is important to remember a first offense DUI is a malum prohibitum misdemeanor; which means it is wrong because a law makes it so. It is not a robbery or theft. Further, DUI is a general intent crime, thus, no specific intent is necessary.

When a person is arrested in California for a DUI, he/she faces the suspension of his/her driving privileges, a very substantial fine, alcohol school, termination of his/her auto insurance as well as the cost of retaining counsel. These penalties do not include loss of time from work, assuming he/she still has a job after the arrest.

When an IID is added to the above list of penalties, the punitive nature of the present law is obvious. Not only is the person punished, but so are his/her spouse and/or children. In a time of such economic turmoil, it is the height of folly to disrupt a citizen's livelihood simply to carry out some type of social experiment. The requirement of an ignition interlock device for first time DUI offenders should be deleted.

Many people charged with driving under the influence cases in California have their license suspended by the Department of Motor Vehicles, prior to ever going to court. There is, however, some hope for people as a result of a recent court opinion.

Many people do not know, upon arrest for a DUI, a person's California Driver License is confiscated by the police officer and the person is given an Admin Per Se (APS) temporary license. A hearing must be requested within 10 days of arrest or the temporary license will expire in 30 days and the person's license suspended.

At the DMV hearing, evidence is presented by the Department. One important piece of evidence is a person's blood alcohol level. Whether this is blood or breath, it is reported to the second decimal (i.e., .08).

A recent California case has given a boost to attorneys defending individuals at these hearings. Derek Brenner was charged for DUI in 2008 and, even though his blood alcohol level registered as .08 percent, his license suspension was set aside. The reason for this was evidence presented by his attorney regarding the breath test machine's tendency to give a result .002 higher.

What makes this result interesting is that California law allows a breath testing machine to have a variance of ±.01, which is much higher than the evidence presented at the DMV hearing.

The real issue in this case is, if a person has a reported blood alcohol of .08 percent (right on the legal limit) and evidence by the defense shows a variance of .002 (which would bring the blood alcohol down to .078), the presumption of validity of official documents has been rebutted. This now requires the DMV to present evidence to prove the test was nonetheless reliable, which in the Brenner case did not occur.

Although this case doesn't completely level the playing field in these cases, it is nonetheless well-reasoned and helpful to the defense bar.

Certain changes in California Vehicle Code (CVC) Sections 13352 and 13353.3 give individuals convicted of a second offense DUI an opportunity to get a restricted California Driver License (CDL).

Prior to 2010, if a person was convicted of a 2nd offense driving under the influence, he/she faced a suspension of his/her driving privilege for one year, during which time no restrictions were available to drive to and from work or to and from the court-mandated alcohol school.

The overly punitive nature of this suspension is easily apparent to all reasonable people. Although a CDL is a privilege and not a right, it is nearly impossible to exist in Orange County, or any other suburban or rural area, without the ability to operate a motor vehicle. The economic and emotional distress caused by loss of employment, loss of income, loss of a home as well as loss of self-worth far exceeds any possible good society may gain by taking away a person's driver license.

Another lost CDL often times translates into another lost job and lost jobs are something California can do without.

CVC Section 13353.3(b)(2)(b) says, in part... "The person's privilege to operate a motor vehicle shall be suspended for one year except as provided in paragraph B...

B) The one year suspension pursuant to subparagraph A shall terminate if the person has been convicted of a violation arising out of the same occurrence and all of the following conditions are met:

i. The person is eligible for a restricted license pursuant to section 13352,
ii. The person installs an ignition interlock device as required by section 13352 for that restricted driver's license, and
iii. The person complies with all other applicable conditions in section 13352 for a restricted license."

Coupled with CVC section 13352, this may offer some needed relief to people convicted of a 2nd offense DUI.

Two recent news events featured individuals driving a commercial vehicle while possibly under the influence of an alcoholic beverage. The first incident involved a woman driving a commercial vehicle hauling hazardous waste, while the second involved a woman driving a school bus, without children aboard, allegedly under the influence of alcohol.

Any individual arrested for driving under the influence while operating a commercial vehicle faces certain unique problems. These individuals may apply for a Class C restricted license through the DMV just like those individuals with a regular, non-commercial license; however, there is no work-related driving restriction available. I would think this inability to have a restricted license probably wouldn't matter because the individual will, in all likelihood, be fired from his/her job as a result of the conviction.

Few people would have any sympathy for someone who hauled hazardous materials while under the influence. In fact, driving any large commercial vehicle under the influence of alcohol must be considered far more dangerous than operating a regular vehicle.

It must be understood, however, a person with a commercial license who gets a DUI in their personal vehicle will probably never again get another job driving for a living. Company concerns regarding insurance and financial liability would see to this.

In closing, it can clearly be seen that driving under the influence in a commercial vehicle can be very dangerous indeed. However, the penalty suffered by commercial drivers for DUIs, even those sustained in their personal lives, is extreme. These individuals become unemployed and, as such, must seek a different career.

A grand jury in Massachusetts indicted a man for his 9th DUI arrest. The man also faces a lifetime driver license suspension because he refused a chemical test. Under Massachusetts law, if anyone refuses a chemical test when arrested for his/her third DUI, his/her license is automatically suspended for life. In this case, the man's first DUI arrest was in 1983, however, it appears his last two arrests occurred in 2001.

Individuals charged with multiple DUIs pose a unique problem to society. If a person causes injury or death while having been convicted of a prior DUI, his penalties will be either manslaughter or murder. However, what if someone is convicted of multiple (3 or more) DUIs but has no aggravating factors, such as collisions or very high blood alcohol levels? Society certainly wishes to impress upon this type of offender the need to stop drinking and driving, but when does the punishment become excessive?

Although I am personally against jail time for individuals convicted of a Malum prohibitum crime, such as first, second and third time DUIs, the rationale for incarceration for a fourth time DUI conviction may be stronger. If an individual, within a 10 year period, is convicted of a 4th DUI, it is evident this person needs to confront the issue of drinking and driving. But does he/she need to be sentenced to state prison? The law in California allows a defendant convicted of a 4th offense to be sentenced to prison for up to 3 years.

Many in society believe jail time is a panacea for the problems of society. While incarceration may be the right answer for violent offenders or crimes resulting in a large financial loss, it is important to remember that for each non-violent offender sentenced to jail or prison for an extended period, thousands and thousands of taxpayer dollars are spent. There is no such thing as a free lunch and a substantial cost is paid for extended incarceration by both the defendant and society.

Perhaps there is no greater punishment, other than long-term incarceration, for persons convicted of a DUI than loss of their driving privileges. Although having a driver license is a privilege and not a right, few of us would be able to survive without driving.

When a person is arrested for a DUI, his/her driver license is taken and he/she is issued a temporary APS license. A person must have his/her attorney call DMV to set up a hearing immediately. If a hearing is not set within 10 days, the person's driving privileges will be suspended after 30 days. One problem with this process is that sometimes people don't read their paperwork immediately and let the deadline pass. Another problem is that sometimes arresting officers give erroneous advice regarding the deadlines.

Once a hearing is set, there are two different procedures involved in defending a DUI...one in the court and one at the DMV. The timing of these different procedures can be very important. An example of this is if the court case is handled first and the DMV is handled later. The two suspensions then may not run concurrently. This is because there are now two possible suspensions which can affect a person's privilege to drive.

In addition to the above, suspension periods/penalties may vary between juveniles and adults, first offenders and multiple offenders, excessive blood alcohol and refusals as well as commercial and non-commercial licenses. There is also a major difference between suspension and restriction. Suspension means you are prohibited from operating a motor vehicle. Restriction allows driving within certain parameters, such as to and from work and to and from any court mandated alcohol school.

So, you can see that protecting a person's privilege to operate a motor vehicle is not only important, it is also complicated. Both the court and the DMV should be handled as part of a well thought out strategy.

Governor Arnold Schwarzenegger signed a new bill into law allowing judges to suspend the driving privileges of some multiple DUI offenders for 10 years. Schwarzenegger says the new legislation will make roads safer.

As of this date, a person can have his/her license taken for 1, 2 or 3 years depending
on how many priors he/she has and what he/she is charged with. Although a person's privilege to operate a motor vehicle is just that, a privilege, a person that needs to
drive to provide for his/her family is likely going to drive, regardless of license status. Sometimes it is possible to carpool or take public transportation, but sometimes it is not. A person must have the ability to regain his/her driving privilege in order to be a productive member of society.

One way to allow a person to reacquire his/her driving privilege, while still addressing the issue of safer roads, is to require an ignition interlock device be installed on his/her vehicle. This assures an individual does not operate a motor vehicle with alcohol in his/her system.

Police departments throughout Orange County will be upping the number of DUI checkpoints this holiday season, and in 2010, thanks to recent state grants totaling over $400,000.

This increase in sobriety checkpoints is part of a statewide effort to target drunk drivers as well as people with outstanding warrants and suspended licenses. According to reports, in order to obtain the money, cities must agree to execute at least one checkpoint per month and otherwise increase efforts to combat drinking in driving during the Christmas-New Year holiday and Labor Day weekend. Costa Mesa, Fullerton, Irvine, Orange and Westminster are among several Orange County cities on board to participate.

While over 200,000 DUI arrests were made last year, Orange County ranked high in the number of alcohol-related accidents involving death or injury. In fact, Santa Ana ranked 5th highest in this category among California's largest cities.

The real issue regarding checkpoints is cost-effectiveness. If all of the officers tending a checkpoint were released to patrol, would this increase police presence as well as DUI arrests? Statistics on this would be revealing.