DUI Defender

Starting July 1, 2010, individuals arrested and then convicted of a first offense DUI, in Alameda, Los Angeles, Tulare and Sacramento counties, will be required to install an Ignition Interlock Device on their vehicle. First offenders will be required to install these devices for 5 months (12 months if an injury was involved). Despite proponents claims that these devices only cost $75 to install and $50/month to monitor, our check of local service centers found much higher prices. A first time DUI offender should expect to pay at least $500 over the the five months on top of other fines and penalties.

The implementation of the Ignition Interlock requirement in the four “pilot” counties was contingent upon funding to be created to cover the costs of the program. The law offices of Kapsack and Bair continue to investigate the source of the pilot program funding (Freedom of Information Requests have been served on the District Attorney for Alameda County, the Department of Motor Vehicles, California Attorney General and other government agencies), it appears likely that if you were arrested for a DUI after July 1, 2010 you will have to add an Ignition Interlock to the cost of losing your first offense DUI case.

Under legislation currently before the Public Safety Committee, if you are arrested and then convicted of a second offense DUI you will be eligible for a restricted license after 90 days of actual suspension after installing the Ignition Interlock Device. In the four pilot counties second offenders will be required to install the ignition interlock devices for a minimum of twelve months.

While it remains to be seen what will happen to individuals currently serving suspensions for multiple DUI convictions or administrative actions, it seems likely that the shortened suspension periods will only effect those persons violating the DUI statututes after July 1, 2010.  It also remains unclear whether persons who’s licenses are suspended through the administrative process will be eligible for the same treatment.  Meaning, if your license is suspended for a multiple time for through the administrative process, and you are convicted of a multiple offense DUI in court, you may not be eligible for the shorter restriction following installation of the Ignition Interlock Device.

Earlier today a bill passed out committee that would permit Judges to permanently revoke the drivers license of persons convicted of a third offense. AB 1601 sponsored by Assembyman Jerry Hill will allow Judges to revoke the driver’s license upon conviction of a third offense DUI.

While both the California DUI Lawyers Association and the ACLU spoke against passage of the bill it moved from the Public Safety Committee to the Assembly Appropriations Committe on a 5-2 vote.

This bill, seems to serve a noble purpose, removing from the roadways persons who seemingly can’t exercise good judgment when they drink alcohol. However, like most legislation in the DUI arena, it makes for great headlines and publicity for the elected official but it doesn’t serve justice and certainly doesn’t accomplish the goal which is to reduce the number of drivers under the influence.

This bill does not limit the “look back” period as state law does (10 years) and would permit a Judge to permanently revoke a person’s license upon conviction of a third offense even if the two prior convictions were many years in the past and/or separated by many years.

What about juvenile DUI’s, do these lapses in judgment or “youthful indiscretions” count? What if the person was under 21 but was a .1? Does this count? Can’t the law provide for a more compassionate punishment for the mistakes of persons who are convicted of DUI? Maybe a longer period with an ignition interlock device, maybe take into consideration the fact that upon conviction the defendant is sentenced to a minimum of 120 days of jail, often times it is the first time a person convicted of DUI actually does any “real” jail time.

It also ignores that alcohol is the number one “self prescribed” medication, several times a person will turn to alcohol to deal with the death of a parent, divorce or other emotional situation. During the grieving period they may turn to alcohol to help “cope” such behavior can result in multiple DUI’s during a very short period, should these otherwise law abiding citizens lose their licenses for life? Take away their livelihood at the very time when they need support in their delicate emotional state?

Providing impetus for the bill was a headline grabbing story regarding two drivers who racked up more than two dozen DUI convictions between them. Unfortunately, the back story is that only 310,000 drivers in California have 3 DUI convictions a relatively small percentage of the more than 22.5 million licensed drivers (<a href="http://www.statemaster.com/graph/trn_lic_dri_tot_num-transportation-licensed-drivers-total-number"). Further, it assumes the worst in people, nearly every adiction clinic advises it's participants that sobriety is a daily task, that mishaps and backsteps occur, to allow a license to be revoked following such an incident seems a travesty.

As the winter Olympics approach we are contacted be more and more persons who are planning on traveling to British Columbia to see some of the events in Whistler. Many of the persons contacting us have read about Canada’s prohibition of person’s charged and/or convicted of driving under the influence in the United States. Unfortunately, this is indeed the case, if you have been convicted of an alcohol related driving crime in the United States your admission to Canada may depend upon the good will of the person you encounter at the border. As a general rule, if you have been convicted, you can not expect to be admitted. That being said, admission is ultimately determined by the person inspecting the documents and making the decision at the border.

For many people, purchasing expensive tickets to sporting events and hotel rooms, the uncertainty is disconcerting. Recently, an article was published regarding the admission policies of the Canadian government. The article accurately states that there are three ways to ensure admission, apply to be a temporary resident, apply for rehabilitation or be deemed rehabilitated. The availablity of the particular process relies upon how much time has passed between the conviction and the attempted admission. For more information check out the article or review the official Canadian website .

In a press release (following a press conference) the California Highway Patrol announced that up to 80% of the entire force will be working the holiday weekend from December 28, 2007 through midnight January 1, 2008. The funding for this incredible display of law enforcement is a grant from the National Highway Traffic Safety Administration, additional funds will permit the CHP to conduct at least 100 checkpoints and 65 DUI task force operations throughout 2008. Of course, Mother’s Against Drunk Driver’s was present to further its prohibition campaign.

Amazingly, someone realized that not every person pulled over for DUI is an alcoholic. It seems crazy to me that anyone would believe that a DUI driver is an alcoholic, in fact, some are not guilty of driving under the influence, not mention that many more may be guilty of making a bad decision based on State approved DUI charts (weight = number of drinks/hour) or some other lapse of judgment that put them behind the wheel at or around the legal limit.

The study cited in this article states that approximately 50% of all drivers pulled over are binge drinkers (which the author uses as a criteria to determine that a person is an alcoholic). The author further qualifies the non-alcoholic group as being persons who consumed more than a certain number of drinks the night they were arrested. This may be true, a better study might include the mean BAC for DUI arrests as well as a % breakdown, I sincerely believe that this number will be significantly lower than MADD would have the general public believe…

Yes, sad but true, if you are convicted of a DUI you may not be able to enter into Canada. This site has a step by step analysis of the crimes that will prevent admission into Canada. It further describes the steps necessary to file a certificate of rehabilitation or become a temporary resident. This process is theoretically the only way that a convict can be deemed admissible to Canada. Although, the simple fact is that admission to Canada will be based upon the discretion of the border guard.

The process of rehabilitation may be initiated when 5 years has passed since the conviction. If a person needs to be admitted to Canada prior to initiating or completing the rehabilitation process you may apply for a temporary resident permit.

This article recently appeared in an Arizona newspaper. It relates the story of a woman who appeared to be under the influence by a citizen informant. He watched the woman drink glass after glass of white wine then load up her car with her 4 year old son and head out onto the highway. The citizen informant called the police when she ran a stop sign. The woman drove over to a local mall and the informant followed her, even pointing her out when the police arrived.

The police conducted a dui investigation which the overweight woman had trouble completing, finally she provided a breath sample which measured .04. Still, she was arrested, her child taken away from her as she was taken to jail. At the jail she provided a chemical test that was below the .04 she provided in the field. That didn’t stop the District Attorney from filing charges for DUI instead of apologizing for the conduct of law enforcement.

The truth of the matter was that she was driving home from dental surgery, she stopped for lunch and ordered a mimosa which she didn’t finish as it irritated her mouth, she then switched to water… which was served in a wine glass, repeatedly.

This article is a statement of the sad reality of how one person, who wasn’t doing anything wrong, ended up in a legal pickle.

If you are ever curious about the what other lawyer’s think about a particular judge you may choose to go to this site to investigate your judge. Unfortunately, many (most) judges aren’t rated but perhaps over time this could become a valuable resource for defendant’s and lawyers alike.

Three Northern California prosecutors are facing trial in the State Bar court for allegedly abusing their authority or violating the law. The prosecutors are from Santa Clara County, Santa Cruz County and Sacramento County. Earlier this year a fourth Deputy District Attorney from Sonoma County was suspended for four years for intentionally withholding documents that could have helped a physician defend himself against murder charges. A judge dismissed the case based on the attorney’s misconduct.

The DA in Santa Clara has been accused of concealing evidence, misleading a judge and ignoring a judicial order. His conduct included suppressing evidence that could have cleared two accused rapists. The two rapists were convicted and sentenced to prison terms ranging from nearly 19 years to more than 37 years. The convictions were overturned six years later. It is also alleged that he concealed evidence that would have repudiated an eyewitnesses testimony relating to a murder.

The DA in Santa Cruz’ charges stem from a drunk driving incident in 1995 where he claimed that another person was driving the car involved in an accident, State Bar lawyers believe that he was the driver and the “other driver” was a lie. In 2002 it is alleged he contacted a judge who was sitting on a hit and run insurance fraud case in which his girlfriend was the defendant. The State Bar lawyers are seeking disbarment in this case.

The DA in Sacramento is alleged to have withheld exculpatory evidence in a murder trial.

These prosecutions are part of a growing area of law for the State Bar as prosecutor conduct has come under more scrutiny in light of the misconduct and subsequent disbarment of former Durham County District Attorney Mike Nifong.

Recently I was surfing the Mother’s Against Drunk Drivers website and found the page that delineates the legislative goals for each state. Simply click on the state and it will send you to the state MADD chapter and a description of the current strategy.

As part of this individual state strategy, MADD also has a national goal to force persons convicted for DUI to install an Ignition Interlock Device on their car(s). This goal is funded by the manufacturer’s of these devices although there is very little evidence to support that the installation of this equipment actually reduces DUI. Quite simply, if a person wants to drink and drive, they will, unfortunately the real cost of this program will be born by automobile manufacturer’s who will lose lease revenue as the installtion of the equipment permanently damages the car.