Can You Be Forced to Take a Portable Breath Test?

When you drive in California, you are “deemed” to have consented to the chemical testing of your blood, urine, and breath to determine your blood alcohol content (BAC). Although you cannot be forced to take a breath test, under California’s implied consent law, if you are lawfully arrested, you do no have the right to refuse to take the test. If you do refuse, there is a mandatory one year suspension of your driver’s license. Also, your refusal can be used against you in court if you are charged with a DUI. Further, if you are found guilty of DUI, you can be penalized more harshly than if you had agreed to take the breath test voluntarily.


Penalties For Failing to Take a Breath Test

If you are found guilty of DUI, there are additional penalties that apply if you also refused to take the breath test. The penalties for failing to take a breath test increase with the number of prior DUI conviction you have. If this is your first DUI arrest, you will receive an additional 48 hours in jail and be required to attend DUI school for 9 months. If you have had one prior DUI, additional jail time increases to 96 hours and your driver’s license is suspended for 2 years. With 2 prior DUI convictions your jail time is increased to 10 days, and your license suspension to 3 years. Three or more prior DUIs will get you an additional 18 days in jail and a three-year driver’s license suspension.


Presumption of Innocence

Just because you are charged with refusal to take a breath test doesn’t mean that you are guilty. Your DUI defense attorney can challenge whether or not your DUI arrest was legal. Also, the arresting officer must advise you of the consequences of refusing to take a breath test such as losing your driver’s license.


Being accused of DUI with the additional allegation that you refused a breath test is a serious crime. At The Kavinoky Law Firm, we have helped thousands of California drivers get their DUI with refusal charges reduced or dismissed. When it comes to California DUI defense, experience counts. Make a call to The Kavinoky Law Firm your first phone call after being arrested and charged with DUI.

Challenging Failed BAC Test

Challenging the results of a blood alcohol content (BAC) test can be a large part of a comprehensive defense strategy when you are charged with DUI. Proving that blood alcohol testing has been tainted can render the test results inadmissible in court and can cause the DUI charges against you to be dismissed. The DUI defense attorneys at The Kavinoky Law Firm leave no stone unturned when challenging the police procedures pertaining to your DUI arrest.


The arresting police officer may choose from two testing methods to attempt to determine if you were over the limit while driving. The two most commonly used are breath tests and blood tests and both have a number of potential flaws that may render their results inaccurate or questionable.


Breath Tests

One of the problems with the accuracy of DUI breath tests is that the test seeks to measure the amount of alcohol that has been absorbed into a DUI suspect’s deep lung tissue. In so doing, the amount of alcohol in one’s mouth may also be recorded. Alcohol can be present in the mouth for reasons other than drinking such as one having a pre-existing medical condition, acid reflux disorder or even routine heartburn. Recent dental work can produce loose particles of dental materials used for fillings and other dental procedures that may contain alcohol. Mouthwashes, lozenges, cold medications and other over-the-counter products may contain alcohol as well.


Other aspects of BAC testing results that can be challenged are the maintenance of the testing equipment and the training of the officer who administers the test. BAC testing devices are sensitive medical equipment that must be regularly maintained according to specific legal requirements. A maintenance log should be examined to see if it complies with the requirements. Further, officers must be specifically trained to use and maintain these devices. The fact that an officer lacked the necessary training could render testing results invalid.


Yet another aspect of a BAC test result that can be challenged is that it takes up to three hours for alcohol to be absorbed into the blood stream. Given this large window of time, an individual could, in fact, be sober when pulled over and arrested, yet have an illegal BAC when the tests are given minutes or hours later.


Blood Tests

The accuracy of blood testing is even more suspect than breath tests because of the specialized training that is necessary to procure, handle, and preserve a blood sample. Blood samples can be tainted, improperly sealed and improperly stored once in the possession of the police.


Just because you are charged with DUI in California doesn’t mean that you are guilty. Forensic Alcohol Experts can be employed to challenge every aspect of the equipment, training, and results of the BAC tests that are being used against you. Challenging BAC test results may be an appropriate line of defense for you. Call us today for a free telephone consultation.

Failing to Pay Traffic Violations

Failing to pay traffic tickets as required can have a negative impact on your ability to legally operate a motor vehicle. If you fail to pay a traffic ticket, the court can order the DMV to place a hold on your driver’s license or suspend your license outright until you pay your ticket(s). Placing a hold on your driver’s license can prevent you from being able to renew your license. Driving with a suspended license can be charged as a misdemeanor in California under Vehicle Code Section 14601, which is punishable by hefty fines and potentially time in the county jail.


Don’t Ignore Traffic Tickets

A person may be unaware that a hold has been placed on their license until they go for renewal. If a hold has been placed on your driver’s license or your driver’s license has been suspended, and you are pulled over for another traffic violation, you could face additional fines and possible be taken to jail. If you have outstanding traffic ticket violations you need to take immediate action by calling a criminal defense attorney that can advise you of your options. Our firm can help you to remove a hold on your license, help you get your suspended driver’s license reinstated.


Clearing a Failure to Pay From a California Driver’s License

The first step in clearing a failure to pay from your California driver’s license is to identify which court reported the failure to pay violation. This information can be found on your driver’s record which you can obtain from the DMV either online, by phone, or in person. Once you have identified the jurisdiction that issued the citation, you can pay the necessary fees and fines at that jurisdiction’s court. The court will then notify the DMV which can release the holds or reinstate your driver’s license.


Failure to Pay Amnesty Program Expiring March 31, 2017

If you have lost your driver’s license due to unpaid traffic tickets, you can have your license reinstated by participating in the Traffic Tickets/Infractions Amnesty program signed into law by the Governor of California in June of 2015. The program offers one-time partial forgiveness for unpaid traffic and non-traffic infractions. The program ends March 31, 2017.


Failing to pay a traffic ticket or violation can result in a loss of your driving privileges which could negatively impact many areas of your life. Call the experienced attorneys at The Kavinoky Law Firm to clear up the hold or suspension of your California driver’s license and get on with your life with a clean driving record.

Utah Governor Gary Herbert Officially Signs HB155, Lowering Utah’s Legal Limit to .05

Utah Governor Gary Herbert has signed HB155, making Utah the first state to lower its legal BAC to under 0.08. This comes as a shocking move to those in Utah and has been met with heavy opposition by citizens and researchers.Researchers and citizens do not feel that the new legal limit will do much to make the roads safer. According to Fox News, 3,818 phone calls, emails, and letters of opposition have been received asking for the .05 limit to be vetoed, citing the targeting of innocent citizens as a major concern. Researchers from the American Beverage Institute have found that 77% of alcohol-related traffic fatalities in Utah come from high-BAC and repeat offenders. This has prompted the ABI to release a statement urging Governor Herbert to veto the bill and instead implement a 24/7 Sobriety Program that targets repeat offenders and those with high-BAC.

Criminal Defense Attorney Darren Kavinoky believes the new law could take citizens who were “driving legally before this legislation and turn them into a convicted criminal, with all the direct and indirect consequences that come from that.”

Kavinoky is not shocked that restaurants and bars are concerned, citing reaching a .05 after “just a single drink” as a major possibility. Kavinoky believes the new law could “have a huge, chilling effect on business, and in the case of Utah, where tourism is a significant revenue source, could mean disastrous results.”

“There’s little debate over the notion that everyone wants to drive on safe roads. At the same time, I would be surprised if ‘Joe or Jane Citizen’ didn’t rebel against the idea of lowering the legal limit yet again.

There’s always a tension between the rights of the individual versus the interest of the government in enacting laws that preserve the safety of its citizens.  In this case, Utah appears to have tipped the scales against long-held notions of personal liberty and freedom.  This could backfire significantly.

“There is definitely a trend in the lowering of the legal limit,” Kavinoky believes, “in California DUI cases, for example, the legal limit for those people 21 and older used to be
.15, then it became .10, and then it was lowered to .08.  When certain states held out on dropping from .10 to .08, the federal government threatened to withhold funding to get them into line.  Those changes weren’t driven by science or safety, but by politics.”

Governor Herbert claims the newly passed law “does not target drinking” but rather makes for “good public policy”. Only time will tell how effective the new policy will be.



Failing to Appear in Court

The legal ramifications of failing to appear in court (FTA) will not simply go away if you ignore them. When you sign any citation (traffic ticket or misdemeanor) you are essentially agreeing to appear in court. If you fail to do so you could be charged with an additional criminal offense — failure to appear – which is a misdemeanor. If you fail to appear, the court could issue a warrant for your arrest. Also, your driver’s license may be suspended until you follow a set of procedures to get your license reinstated.


Driving With a Suspended California Driver’s License

If your license is not valid for any reason, including failure to appear in court, you should take action immediately. If you are caught driving with a license that was suspended because you failed to appear in court, you could face an additional driver’s license suspension, additional fees for reinstatement, and possibly jail time.


License Reinstatement Requirements

Your driver’s license can be suspended for any number of reasons. If your license was suspended because you failed to appear in court, you will need to appear in court to remove the hold on your license that was issued for the failure to appear. Then, you can have your driver’s license reinstated by visiting the CA DMV office in person and completing the applicable documents and paying a reissue fee.


Other Ramification of Failure to Appear

Failing to appear in court can have immediate negative effects on other areas of your life in addition to your driver’s license. When you fail to appear in court you could be charged with a misdemeanor criminal offense that will appear as an outstanding warrant on a background check. Background checks are routinely conducted when you apply for a loan or apply for a job. You will need to appear in court with your attorney in order to clear the warrant.


Take Action

There are valid reasons for failing to appear in court such as being called into military service, being in jail, or being in the hospital. Regardless of the reason, do not ignore your requirement to make a court appearance. If you have failed to appear in court you should contact a criminal defense attorney to represent you in clearing the warrant. Then, you can contest or settle the matter that was the reason you were to appear in court in the first place.

Southern California’s Privatized Jails are Garnering Serious Attention

“Southern California’s Criminal Law pay-to-stay jail programs are now garnering serious attention” says Criminal Defense Lawyer Darren Kavinoky, founder of 1800NoCuffs.

Convicted criminals can reserve their spot in a Southern California private jail for as little as $25/night. This has sparked controversy over what the LA Times calls a “two-tiered justice system” that allows those convicted of serious crimes to “buy their way into safer and more comfortable jails”.

On average, 87% of pay-to-stay tenants are non-violent offenders, largely California DUI arrests. The other 13% includes those convicted of violence, threats of violence, or sex crimes according to data collected by the LA Times and the Marshall Group.

Private jails have their tenants’ full support. Those occupying and running the private jails have claimed that the private jails provide a safe alternative to county jail, a place where the young, old, rich, and famous are susceptible to mental and physical abuse.

Shane Sparks, a hip-hop choreographer convicted for sexual intercourse with a minor under the age of 16, compared his time spent in jail to a “retreat”. Amenities in the cells include flat-screen TVs, new beds, choice of bedding, and freedom to go to work while being incarcerated.

“While this may seem offensive on its face, the truth is that many criminal defenders are ‘soft,’ meaning that putting them into Los Angeles or Orange County Jail would subject them to all manners of physical, psychological, and emotional trauma. The truth is that our criminal recidivism rates are ridiculous, about 70% depending on who’s study you read. Unless someone goes into a jail environment determined to use it as an opportunity to turn their life around, all we are doing is sending people to a graduate school for crime” says `Darren Kavinoky.

Victims have heavily scrutinized the pay-to-stay options claiming a lack of rehabilitation due to the aforementioned trauma factor being eliminated.

Upon finding out his assailant would be attending private jail due to being “afraid of the general population”, Tanner Mester, a stabbing victim, called these fears “part of jail” and “what makes you not want to go back”.

Multiple victims have stepped up to speak out against the pay-to-stay option for violent criminals, mainly siding with Mester, citing a lack of rehabilitation. Kavinoky adds that “County jail is both for people who have been convicted of misdemeanor crimes and for all people who are awaiting trial for all types of crimes from murder to sidewalk spitting. This means we’re taking someone who’s been pulled over for 1st offense DUI and housing them with someone who’s been charged with murder. Expecting someone who has been pulled for 1st offense DUI to come out ‘new and improved’ in this instance is simply wrong. It’s like rearranging the deck chairs on a ship called the ‘Titanic’. You can feng shui those deck chairs all you want but if you don’t deal with your iceberg problem that ship is going down.”


The Gender Gap

Susan Haber, Senior Managing Attorney, The Kavinoky Law Firm

There isn’t a woman who works in the area of criminal law who doesn’t have a story about a time (or 20!) she was the only female attorney in the courtroom.

At the age of 25 I was a first-year prosecutor with the Los Angeles District Attorney’s Office.  Bright-eyed and enthusiastic about the start of my career; I was determined to be a zealous legal advocate for the State of California and the protection of our society.

I vividly recall the day I was prosecuting a 5-defendant felony embezzlement case.  As the judge called the case to be heard, I realized that I sat alone on one side of the attorney table while five middle-aged male defense attorneys sat with their 5 male clients on the opposing side. I felt like Snow White.

The gender gap I have experienced, both as a former prosecutor and now as a criminal defense attorney, is not unique unto myself.  After conducting a bit of research on the subject of female criminal defense attorneys as well as speaking with numerous colleagues over 18 years of practicing criminal law, I am saddened by the stories I have heard and the statistics.

In one article I reviewed, among all attorneys appearing in criminal cases, 67% are men. Looking at attorneys appearing as lead counsel (first-chair), 67% are men (making 33% women). When looking at attorneys appearing as trial attorney, 79% are men and only 21% are women.

Additionally, the study found that there is a great distinction between criminal prosecution work and defense work among women and men. For example, 34% of attorneys who appeared as the lead attorney in criminal cases were for the government (the prosecution) were men as opposed to 66% of the attorneys who appeared on behalf of defendants were men.

In looking at women who appeared as the lead attorney in criminal cases, the ratio is reversed: women were 69% of the attorneys who presented the government and 31% of the attorneys who represented defendants were women.  What is even more interesting from this study is that the percentage of women drop from handling 33% of criminal cases as the lead attorney in a criminal case to 21% as the trial attorneys.

What do all these statistics mean?  I provide you with my impressions; not those who conducted the study.  Women are far less represented as a group in criminal defense as they are in on the prosecutorial side.  I don’t feel that has ANYTHING to do with the morals or values of prosecuting criminals or defending them. I believe this has to do with the lack of equal opportunities available for women attorneys to work in the area of criminal defense private practice.

I am a wife and mother of two school-aged children who wants nothing more than having our society protected from harm.  I want my children to feel safe walking down the street without fear. I also firmly believe that every person on this earth should have the right to competent legal counsel if they are accused of a crime. If you were charged with a criminal offense, wouldn’t you want the very BEST attorney, male or female, to help you?  I would!

Despite the gender gap and all that goes with it, I would never want to practice any other kind of law.  I LOVE the courtroom, the cases, and the people I meet. I hope I am a positive role model for my daughter and son who embodies independence, strength and perseverance, along with poise, femininity and vulnerability (we are all vulnerable to something and should not be afraid to show it!) as I zealously advocate for my family and clients.

Supreme Court rules in favor of Duane Buck

The Supreme Court ruled 6-2 in favor of Duane Buck, a convicted murderer, citing Chief Justice John Roberts’ majority opinion that Buck demonstrated “ineffective assistance of counsel”.

Mr. Buck was originally sentenced to death in 1997 for shooting his ex-girlfriend. Buck attempted to appeal the sentence, but ultimately had his appeal rejected by the United States Court of Appeals for the Fifth Circuit in 2015. Per the new ruling, Buck has now been granted the right to a new hearing in the Texas Appeals Court, in large part due to previous racial discrimination.

I checked in with Criminal Defense Attorney Darren Kavinoky to further explain the significance of the SCOTUS ruling. Kavinoky believes this case “presents an interesting legal issue, at an especially interesting time in our country’s national conversation around race.”

The 6-2 ruling is not a question of guilt, but rather what Kavinoky calls a “question [of] whether legally inadmissible evidence was introduced during [Mr. Buck’s] sentencing hearing”, referencing the use of race in Mr. Buck’s death sentence.

“There’s no question that Buck committed the murder that has now put him on death row,” Kavinoky says.

“For context,” Kavinoky says, “in capital murder cases, crimes that are eligible for the death penalty, the trial is broken into two phases.” These phases are what Kavinoky describes as “the guilt phase, where the prosecution has the burden of proving guilt beyond a reasonable doubt; and the penalty phase, where the jury deliberates between life in prison and the death penalty.”

“When you get to the penalty phase, those are the only two choices,” Kavinoky says, referencing the jury’s choice of punishment for the defendant, life in prison, and the death penalty. “We are well beyond the point of determining whether someone should be set free”, Kavinoky adds.

“During the penalty phase, the jurors are routinely asked to determine whether factors of aggravation outweigh factors of mitigation or vice versa. This will tip the scales in favor of one of the two punishments”, Kavinoky says.

Kavinoky explains that during the penalty phase, “evidence was introduced that Mr. Buck’s race was an aggravating factor to be considered in determining his criminal punishment.”

While the prosecution is arguing that the defense is, what Mr. Kavinoky calls, “making a mountain out of a molehill by twisting the emphasis on one of many items of evidence, the defense position that this was so facially inappropriate as to render his lawyer incompetent – a very high standard to meet—was enough to make the appellate court sit up and pay attention.”

“Buck now has a date with the appellate court, where he hopes the outcome will be that a new penalty phase sentencing hearing is ordered”, Kavinoky says. “If that happens, he’ll have an opportunity to spare his life. If not,” Kavinoky adds, “Texas has a way of acting very quickly when it comes to carrying out the ultimate criminal punishment”.

Imitation is the Sincerest Form of Flattery

I love the quotes of Oscar Wilde.  One of my favorites both is a nod to my TV show “Deadly Sins,” (now in production for its sixth season for Investigation Discovery):  “Every Saint has a past, every Sinner has a future.” Anyone who has ever seen my keynote speech knows why that’s also so true for me!  But Wilde is also quoted as saying that “Imitation is the sincerest form of flattery that mediocrity can pay to greatness.”

Of course, anyone who has ever heard our long-running radio ads has heard our legally trademarked phrase “1.800.NoCuffs, because no one looks good in handcuffs… unless you’re into that sort of thing.”™

That must be why my phone, texts, and emails all lit up during that big football game last Sunday, when T-Mobile launched its new campaign that “”Wireless pain is fine… if you’re into that sort of thing…”  My friends were wondering whether I intended to sue them for infringing on my mark.  Of course not!

First of all, the fact that their creative team was so inspired by what’s turned out to be the “stickiest” part of our 1.800.NoCuffs radio campaign made my day!  (I was watching the Big Game too!!)

Next, while it’s really close, it’s not a carbon copy, and I don’t think T-Mobile is getting into the criminal defense lawyer business.

Finally, maybe this is an opportunity for T-Mobile to look at the 1.800.NoCuffs business account, and all of the cell phones I pay for each month (we’ve got a big family over here at 1.800.NoCuffs, The Kavinoky Law Firm), and see if they want to make good on their “inspiration”. Okay T-Mobile… I’m waiting…


Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Content Monitoring Devices and Junk Science

Blood Alcohol Monitoring

The latest tech blood alcohol content monitoring device is a wearable that Yahoo reports “from Milo Sensors can let you know when you’ve had one too many.” [1] The high-tech watch works by measuring the alcohol level in your perspiration.
1.800.NoCuffs Founding Attorney Darren Kavinoky says, “There’s already so much ‘junk science’ in the world of DUI enforcement that I’m skeptical of yet one more thing that doesn’t meet the scientific rigor we require in the court system. That said, as someone who is a proponent of anything that empowers people to have greater clarity in all of their personal decision making, anything that serves that end is worth considering, as a directional signal if nothing else.”
The cartridges inside the wrist wearable that allegedly reads your BAC (Blood Alcohol Content) need to be replaced every 12 hours and are disposable. This could be a drawback since remembering to refill or refresh the cartridge for accurate blood alcohol content monitoring could lead to user error.
The wearable device connects to an app on your phone that claims to tell you at what time you will sober up. “This potentially exposes the manufacturing company to liability,” says Kavinoky. “If I am a plaintiff’s attorney, and my client has been injured by or from driving under the influence when they were told by the wearable’s app they were sober, there’s no question I would file a case against the manufacturer. If the app says someone is good to drive after “X” number of hours and following that advice leads to someone being injured, as a plaintiff’s attorney, I would have a strong case against the maker of the app. Regardless of any disclaimers, personal injury attorneys tend to follow the, ‘sue them all and let G*d sort it out’ mentality and go after the deepest pockets.”
One feature that could be helpful on the phone app is the ability to send message notifications to your trusted friends, designated driver, and family members when your BAC rises. One could imagine many different circumstances in which this could be helpful.
1. Retrieved via Yahoo on January 30, 2017 via “Wristband monitors your blood alcohol content while you drink”