Category: Drugs/Alcohol

Posted on

DUI

DUI

Driving Under the Influence: Alcohol/Drugs (VC 23152)

Per California DUI laws, it is illegal to drive a vehicle with blood alcohol content (BAC) percentages:

0.08% or higher―21 years old or older operating a regular passenger vehicle.

0.04% or higher―operating a commercial vehicle.

0.01% or higher―younger than 21 years old.

It is also illegal to drive a vehicle if under the influence of illegal drugs and/or medications, whether it be prescription medications or over-the-counter drugs.

When arrested for a DUI, most people believe that it will be impossible to successfully challenge DUI charges. Usually this is wrong, Our Criminal Defense attorneys have successfully represented many clients against DUI related charges.

Often equipment malfunctions can create inaccurate readings, and all forms of BAC testing are prone to error. Blood samples that were taken during your arrest can be acquired in order for us to have them tested at an independent laboratory. This procedure has often led to different results in your blood tests.

Did you know that during the roadside investigation that led to your DUI arrest the arresting officer is required to follow set of standardized procedures? Many police officers fail to follow these guidelines, making evidence gathered in the field questionable.

As you can see our team of Criminal Defense attorneys will investigate your DUI case from every angle and we will find any errors made by the police and by their testing equipment.

The Arrest

A DUI commonly begins with an officer of the law pulling you over, or at a checkpoint. If the officer suspects you to be under the influence, he will ask you to perform a series of field sobriety tests, you will also be required to blow into a handheld Breathalyzer. If you are thought to be under the influence, the officer will proceed to arrest you and you will be asked to take either a blood test or a breath test at the police station, or at a hospital.

Refusing both the breath and blood test can result in much tougher DUI penalties, often including a one year driver’s license suspension.

Normally if you are arrested for a misdemeanor DUI, you will be released a few hours after your arrest. In case of felony DUIs, you may be required to post bail in order to be released. After you are released you should be given a citation that requires you to appear in court on a certain date and you will also be given a temporary driver’s license. Your regular driver’s license is usually taken by the arresting police officer and mailed to the Department of Motor Vehicles. If you have an out-of-state driver’s license then the police officer will return your driver’s license to you when you are released.

Our DUI lawyers and DUI court

Our expert DUI lawyers will be able to attend most of the DUI court proceedings on your behalf, you will only be required to attend if there is a hearing in which you are required to testify or if the case goes to trial. DUI cases often involve multiple court dates and can run over the course of several months.

During the course of your DUI proceedings, your DUI attorney will spend their time collecting evidence in order to better negotiate with the judge and prosecutor on your behalf. Your attorney will use any evidence gathered to seek dismissal or reductions to any charges you may be facing.

If after all these proceeding, no settlement is reached then the DUI case will be set for a jury trial. Often during a trial, our DUI lawyers will be able to negotiate better deals by using the trial as an opportunity to review minor details that could have been overlooked by the District Attorney.

 

 

Posted on

DUI with Injury

DUI with Injury

DUI with Injury (VC 23153)

If you drove under the influence of alcohol and/or drugs and while driving you injured another person, you may be convicted with VC 23153(b) “driving with a BAC of 0.08% or greater and causing an injury”.

Misdemeanor DUI with Injury:

Informal probation can range between 3 to 5 years with fines imposed up to $5,000, depending on the facts of the case and the injuries involved. You will be required to attend court approved alcohol or drug education programs ranging between 3, 9, 18 or 30 months. Your license may also be suspended for up to three years. You may also be required to pay restitution to any/all injured parties.

 Felony DUI with Injury:

If convicted of a felony DUI with injury, the court will require State prison time between 2 to 4 years. If the victim suffers great bodily injury and/or there are multiple victims injured, additional prison time can be imposed for each additional victim. In addition, a “strike” may be placed on your record if anyone other than yourself suffers great bodily injury. Subsequent DUI with Injury offenses will permanently mark you as a Habitual Traffic Offender (HTO).

What happens if someone is killed or injured in a DUI?

If someone is killed or injured as the result of driving under the influence of alcohol, or while blood alcohol is 0.08% or more, the driver can be found guilty of a felony and could go to state ­prison for over a year, and possibly for up to four years, depending on whether it’s the driver’s first, second, or third offense. Prior convictions for misdemeanor under-the-influence or over-0.08% driving count as prior offenses for the purpose of increasing the prison sentence. So do prior convictions of alcohol-related reckless driving. The jury (and sometimes the judge) will have the option of reducing the offense to a misdemeanor, but even in such cases, the person convicted could still spend up to a year in the county jail—and probably will, since judges take DUI extremely seriously under these circumstances. Also, a person faced with a fourth drunk-driving charge over a ten-year period may be charged with a felony, even where no one was ­injured as a result of the offense.

Posted on

DUI Refusal

DUI-Refusal

California DUI Refusal (VC 13353):

Refusal to take Blood, Breath, or Urine Sample

Chemical test/DUI refusal charges can be very serious. Refusing to take a blood, breath, or urine sample will result in additional jail time served with longer license revocation periods. In addition, you will not be able to acquire a restricted license due to your refusal of chemical testing.

 

I’ve just been arrested for DUI. What happens now?

The officer is required by law to immediately forward a copy of the completed notice of suspension or revocation form and any driver license taken into possession, with a sworn report to the DMV. The DMV automatically conducts an administrative review that includes an examination of the officer’s report, the suspension or revocation order, and any test results. If the suspension or revocation is upheld during the administrative review, you may request a hearing to contest the suspension or revocation.

You have the right to request a hearing from the DMV within 10 days of receipt of the suspension or revocation order. If the review shows there is no basis for the suspension or revocation, the action will be set aside. You will be notified by the DMV in writing only if the suspension or revocation is set aside following the administrative review.

At the time of my arrest, the officer confiscated my driver license. How do I get it back?

Your driver license will be returned to you at the end of the suspension or revocation, provided you pay a $125 reissue fee to the DMV and you file proof of financial responsibility. The reissue fee remains at $100 if you were under age 21 and were suspended under the Zero Tolerance Law pursuant to Vehicle Code §§23136, 13353.1, 13388, 13392. If it is determined that there is not a basis for the suspension or revocation, your driver license will be issued or returned to you.

The Notice of Suspension that the officer gave me at the time of my arrest states I have ten days to request an administrative hearing. What is the purpose of this hearing and what can it do for me?

A hearing is your opportunity to show that the suspension or revocation is not justified.

The officer stated I refused to take a chemical test. What does this mean?

You are required by law to submit to a chemical test to determine the alcohol and/or drug content of your blood. You did not submit to or complete a blood or breath test after being requested to do so by a peace officer. As of January 1999, a urine test is no longer available unless:

  • The officer suspects you were driving under the influence of drugs or a combination of drugs and alcohol, or
  • Both the blood or breath tests are not available, or
  • You are a hemophiliac, or
  • You are taking anticoagulant medication in conjunction with a heart condition.

How long will my driving privilege be suspended for not taking the chemical test?

If you were 21 years or older at the time of arrest and you refused or failed to complete a blood or breath test, or (if applicable) a urine test:

  • A first offense will result in a 1-year suspension.
  • A second offense within 10 years will result in a 2-year revocation.
  • A third or subsequent offense within 10 years will result in a 3-year revocation.

If you were under 21 years of age at the time of being detained or arrested and you refused or failed to complete a PAS test or other chemical test:

  • A first offense will result in a 1-year suspension.
  • A second offense within 10 years will result in a 2-year revocation.
  • A third or subsequent offense within 10 years will result in a 3-year revocation.

How is the DMV suspension or revocation for the DUI arrest different from the suspension or revocation following my conviction in criminal court?

The DMV suspension or revocation is an immediate administrative action taken against your driving privilege only. This is called Administrative Per Se (APS). Any sanctions imposed by DMV under APS are independent of any court-imposed jail sentence, fine, or other criminal penalty imposed when a person is convicted for driving under the influence (DUI).

The suspension or revocation following a conviction in court is a mandatory action for which jail, fine, or other criminal penalty can be imposed.

Posted on

Multiple DUI (2nd, 3rd, 4th)

Multiple DUI

Multiple DUI Penalties (VC 23152)

 1st DUI Offense:

You can be jailed up to 6 months for your first DUI offense. Your license may be suspended for up to 6 months with probation lasting up to 5 years. You may also be required by the court to attend a court approved alcohol/drug treatment program. A DUI conviction stays on your driving record for 10 years.

2nd DUI Offense:

If you receive a 2nd DUI Violation within 10 years, the penalties imposed require jail time of up to a year, with a license suspension period of up to two years. Probation can be imposed up to 5 years with subsequent DUI alcohol/drug treatment programs required by the offender. The offender will also be required to pay subsequent fines of up to $1,000.00, with possible penalty assessments.

 3rd DUI Offense:

If you receive a 3rd DUI Violation within 10 years, the penalties imposed require a minimum Jail sentence of 120 days up to a year. As with the 2nd DUI Offense, probation can last up to five years and be required to attend alcohol/drug treatment programs, with the license suspension period increasing up to 3 years. The offender will also be required to pay subsequent fines of up to $1,000.00, with possible penalty assessments.

4th DUI Offense:

If you receive a 4th DUI Violation within 10 years, possible state prison time can be imposed. The penalties imposed require a minimum Jail sentence of 180 days to 16 months. Probation and license suspension periods are subsequently increased. However, the 4th DUI offense is no longer a misdemeanor; it will be treated as a felony offense.

Posted on

Drunk in Public/Public Intoxication

drunk

Drunk in Public/Public Intoxication (PC 647 (f)):

In order to violate California’s “drunk in public” law, you need to be so intoxicated that you are either unable to exercise care for your safety or those around you, or, you have interfered, obstructed, or prevented others from using streets, roads, sidewalks, and so forth. Behaving in such a way that invades the peace of others could land you a drunk in public charge.

Penalties (PC 647 (f)):

If convicted of PC 647 (f), a misdemeanor charge will be placed on your record. It will be visible to prospective employers and licensing agencies. If convicted you may face up to 6 months in county jail and/or pay up to $1,000 in fines.

Legal Defenses (PC 647 (f)):

Our skilled criminal defense team of lawyers can use a variety of legal defenses in order to reduce or dismiss your PC 647(f) charge. Some of these defenses include: arguing you were not in a public place, there is insufficient evidence to prove your high level of intoxication, or your civil rights were violated by the police who investigated the charge.

California: California Penal Code 647(f) considers public intoxication a misdemeanor. The code describes public intoxication as someone who displays intoxication to liquor, drugs, controlled substances or toluene and demonstrates an inability to care for themselves or others, or interferes or obstructs the free use of streets, sidewalks or other public way. California Penal Code 647(g) affords law enforcement the option to take an individual fitting the arrest criteria for 647(f), and no other crime, into civil protective custody if a “sobering facility” is available. Essentially, the detainee agrees to remain at the location until the facility’s staff consents to their departure; usually after four hours and upon the belief that the detainee is safe to look after themselves. Not every municipality in California has such a facility. Also, if a person is being combative and/or is under the influence of drugs, they will be taken to jail. Unlike a person who is taken to jail, a civil detainee under 647(g) is not later prosecuted in a court of law. –Wikipedia

Posted on

Transportation for Sale

transportation

Transportation for Sale (HS 11352):

In order to be convicted under statute HS 11352, the prosecutor must prove beyond a reasonable doubt that you either: engaged in transporting, importing, selling, administering or giving away drugs in California, that you knew the drug was in your presence and that it is an illegal substance, and that there was enough of the controlled substance present in order to be used as a drug. If the prosecutor cannot prove these factors beyond a reasonable doubt, then you will not be convicted of selling or transporting a controlled substance.

 Penalties (HS 11352):

It is a felony to sell or transport a controlled substance under Health and Safety code 11352. If convicted of selling or transporting a controlled substance, you may face up to 5 to 6 years in state prison, with fines up to $20,000. If you are an immigrant, deportation is very likely. Depending on the circumstances of each case, sentencing will be heightened depending on the amount of controlled substances in possession for sale or transportation.

11352. (a) Except as otherwise provided in this division, every
person who transports, imports into this state, sells, furnishes,
administers, or gives away, or offers to transport, import into this
state, sell, furnish, administer, or give away, or attempts to import
into this state or transport (1) any controlled substance specified
in subdivision (b), (c), or (e), or paragraph (1) of subdivision (f)
of Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or
(c) of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code for
three, four, or five years.
(b) Notwithstanding the penalty provisions of subdivision (a), any
person who transports any controlled substances specified in
subdivision (a) within this state from one county to another
noncontiguous county shall be punished by imprisonment pursuant to
subdivision (h) of Section 1170 of the Penal Code for three, six, or
nine years.
(c) For purposes of this section, “transports” means to transport
for sale.
(d) This section does not preclude or limit the prosecution of an
individual for aiding and abetting the commission of, or conspiring
to commit, or acting as an accessory to, any act prohibited by this
section.

11352.1. (a) The Legislature hereby declares that the dispensing
and furnishing of prescription drugs, controlled substances, and
dangerous drugs or dangerous devices without a license poses a
significant threat to the health, safety, and welfare of all persons
residing in the state. It is the intent of the Legislature in
enacting this provision to enhance the penalties attached to this
illicit and dangerous conduct.
(b) Notwithstanding Section 4321 of the Business and Professions
Code, and in addition to any other penalties provided by law, any
person who knowingly and unlawfully dispenses or furnishes a
dangerous drug or dangerous device, or any material represented as,
or presented in lieu of, any dangerous drug or dangerous device, as
defined in Section 4022 of the Business and Professions Code, or who
knowingly owns, manages, or operates a business that dispenses or
furnishes a dangerous drug or dangerous device or any material
represented as, or presented in lieu of, any dangerous drug or
dangerous device, as defined in Section 4022 of the Business and
Professions Code without a license to dispense or furnish these
products, shall be guilty of a misdemeanor. Upon the first
conviction, each violation shall be punishable by imprisonment in a
county jail not to exceed one year, or by a fine not to exceed five
thousand dollars ($5,000), or by both that fine and imprisonment.
Upon a second or subsequent conviction, each violation shall be
punishable by imprisonment in a county jail not to exceed one year,
or by a fine not to exceed ten thousand dollars ($10,000), or by both
that fine and imprisonment.

Posted on

Possession of Controlled Substance

possession

Possession of Controlled Substance (HS 11350):

California Health and Safety Code 11350 HS prohibits the possession of specific “controlled substances” without a valid prescription. A “controlled substance” is defined as a drug or chemical whose use, possession, and manufacture are regulated by the government under the United States “Controlled Substances Act”.

Examples of commonly possessed controlled substances include (but are not limited to): Opiates, cocaine, heroin, and peyote. In addition, California’s illegal drug possession law also mandates that it is illegal for a person to possess prescription drugs without a valid prescription (for example, codeine and hydrocodone).

In order to prove that you possessed a controlled substance, the prosecutor must prove that you exercised control over the drug, you knew the drug was in your presence, you knew that the drug was a controlled substance and there was a sufficient quantity of the drug to be used as a controlled substance.

Penalties (HS 11350):

California’s “possession of controlled substances” law is typically treated as a misdemeanor. If convicted, you face up to one year in county jail and/or fines up to $1,000. However, depending on your criminal history, you may face increased jail time and fines.

If you are not a citizen of the United States, a conviction for possession of illegal drugs could lead to possible deportation and denial of re-entry and naturalization.

Posted on

Conspiracy to Sell/Transport Controlled Substance

conspiracy

In California, conspiracy to sell drug crimes extend further than possession (HS 11350) and possession with intent to sell (HS 11351), charges. There are a variety of crimes that fall under these categories. Narcotics that fall under this section are cocaine, crack, heroin, ecstasy, ketamine, GHD, and even some prescription drugs such as Vicodin or Codeine (if the possessor does not have a valid prescription). Transportation of a controlled substance (HS 11352) charges stem from an individual causing the drugs to be moved from one location to another. The prosecutor only needs to prove minimal movement in order to successfully bring this charge. An individual may be charged with both transportation and possession of a controlled substance; they are two different criminal counts.

Selling (furnishing) a controlled substance means that the drugs “changed hands”. Money does not have to exchange hands. An individual may be charged with this crime so long as they received anything of value for the controlled substance.

There are various defenses that a qualified attorney may use in order to defend a client against these charges. Many people who are accused of these crimes are eligible for PC 1000 or Proposition 36. It is also important to know that as of November of 2014, Proposition 47 changed possession of a controlled substance (HS 11350) from a felony to a misdemeanor.

Posted on

Possession of Marijuana

marijuana

Possession of Marijuana:

As of January 1, 2011 possession of marijuana (one ounce -28.5 grams or less) is an infraction, punishable by up to a $100 fine (plus fees), with no criminal record. Possession of more than an ounce of marijuana is punishable by up to one year in jail and a minimum fine of $1,000 for a first time offense. Subsequent convictions may cause the severity of the sentence to increase, accordingly. A second conviction carries with it a 15-day mandatory minimum sentence.

Distribution of a small amount of marijuana may be treated as possession, depending on the circumstances. Manufacturing or distribution of less than 50 plants (or 50 kilograms) of marijuana carries with it a sentence of 5 years in prison. If the plants number from 50-99, the penalty increases to a maximum of 20 years in prison. For 100-999 plants (or 100-999 kilograms) the penalty is 5-40 years in prison. Lastly, for 1000 plants (or 1000 kilograms) or more, the penalty is 10 years – life in prison.

It is important to note that distribution of more than 5 grams of marijuana to a minor (under 21), doubles the possible penalties. Also, distribution within 1000 feet of a school, playground, public housing or within 100 feet of a youth center, public pool or video arcade doubles the penalties.

Under Prop. 36, first (and second)-time offenders (only) may demand a treatment program instead of jail. Their conviction is erased upon successful completion of the program. Possession (and personal use cultivation) offenders can also avoid conviction by making use of PC  1000, in which case their charges are dismissed upon successful completion of a diversion program.

Possession with Intent to Sell:

Any amount is a felony under H&S 11359. Items that may lead police to charge a defendant with “intent” are: scales, cash, or multiple packages (baggies). A qualified defense attorney will try to reduce an intent charge to a simple possession charge.

Posted on

Possession for Sale

Drug Possession for Sale

Possession for Sale (HS 11351):

It is a crime to possess narcotics in California. Possession for sale of controlled substance(s) is an even more serious crime. If you are found, by a police officer, with large quantities of a drug, packaging of the drug in separate baggies, scales, lots of cash, and/or the presence of heavy traffic of people going in and out of your home, you can be expected to be arrested and charged under California’s Health and Safety Code 11351.

Penalties (HS 11351):

Possessing a controlled substance with intent to sell is a felony. A conviction can place you in county jail for 2 to 4 years or probation may be granted with only a year in county and/or a maximum of $20,000 fine. If the prosecutor proves that you have engaged in multiple sales, the penalties imposed would be in connection to each intended sale. If you are a legal immigrant or legal alien, a conviction could lead to possible deportation.

HEALTH AND SAFETY CODE
SECTION 11350-11356.5

11350. (a) Except as otherwise provided in this division, every
person who possesses (1) any controlled substance specified in
subdivision (b) or (c), or paragraph (1) of subdivision (f) of
Section 11054, specified in paragraph (14), (15), or (20) of
subdivision (d) of Section 11054, or specified in subdivision (b) or
(c) of Section 11055, or specified in subdivision (h) of Section
11056, or (2) any controlled substance classified in Schedule III,
IV, or V which is a narcotic drug, unless upon the written
prescription of a physician, dentist, podiatrist, or veterinarian
licensed to practice in this state, shall be punished by imprisonment
pursuant to subdivision (h) of Section 1170 of the Penal Code.
(b) Except as otherwise provided in this division, every person
who possesses any controlled substance specified in subdivision (e)
of Section 11054 shall be punished by imprisonment in a county jail
for not more than one year or pursuant to subdivision (h) of Section
1170 of the Penal Code.
(c) Except as otherwise provided in this division, whenever a
person who possesses any of the controlled substances specified in
subdivision (a) or (b), the judge may, in addition to any punishment
provided for pursuant to subdivision (a) or (b), assess against that
person a fine not to exceed seventy dollars ($70) with proceeds of
this fine to be used in accordance with Section 1463.23 of the Penal
Code. The court shall, however, take into consideration the defendant’
s ability to pay, and no defendant shall be denied probation because
of his or her inability to pay the fine permitted under this
subdivision.
(d) Except in unusual cases in which it would not serve the
interest of justice to do so, whenever a court grants probation
pursuant to a felony conviction under this section, in addition to
any other conditions of probation which may be imposed, the following
conditions of probation shall be ordered:
(1) For a first offense under this section, a fine of at least one
thousand dollars ($1,000) or community service.
(2) For a second or subsequent offense under this section, a fine
of at least two thousand dollars ($2,000) or community service.
(3) If a defendant does not have the ability to pay the minimum
fines specified in paragraphs (1) and (2), community service shall be
ordered in lieu of the fine.
(e) It is not unlawful for a person other than the prescription
holder to possess a controlled substance described in subdivision (a)
if both of the following apply:
(1) The possession of the controlled substance is at the direction
or with the express authorization of the prescription holder.
(2) The sole intent of the possessor is to deliver the
prescription to the prescription holder for its prescribed use or to
discard the substance in a lawful manner.
(f) This section does not permit the use of a controlled substance
by a person other than the prescription holder or permit the
distribution or sale of a controlled substance that is otherwise
inconsistent with the prescription.