DUI Vehicular Homicide

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Vehicular Homicide

The California Legislature has passed laws that carry harsh punishments for drivers who are convicted of killing another person while driving under the influence of alcohol or drugs. Public sentiment is often strongly on the side of the legislature on the drunk driving issue. The movement to stop drunk driving has grown considerably over the past decade and the punishments for driving under the influence cases involving death have increased over that time period as well.

Punishments in these cases can be very severe. When a person dies in a drunk driving incident, the prosecutor will commonly charge the driver with second degree murder, manslaughter, or vehicular homicide. A skilled DUI / DWI defense attorney can often reach a suitable plea bargain with the prosecution or they can zealously defend the case at trial.

Vehicular homicide is a wobbler. This means it can be charged as a misdemeanor or a felony. Typically, vehicular homicide will be charged as a felony. The standard in a case for vehicular homicide is that the driver acted with ordinary negligence. A conviction for a felony vehicular homicide will carry severe penalties.

The penalty for a vehicular homicide conviction can mean a prison sentence of one year or more. If the driver has prior convictions for driving under the influence of alcohol or driving while intoxicated, he or she can be sentenced to 15 years to life in prison. A California lawyer skilled in drunk driving defense will attempt to have the charges reduced to a misdemeanor. This will significantly decrease the potential punishment.

Independent experts will investigate the underlying DUI charge. If the driver was not under the influence of alcohol, the prosecutor must drop some of the charges. The experts will investigate the driver’s blood alcohol content (BAC) at the time of the accident. Chemical tests are oftentimes conducted hours after an accident. Due to the delay in conducting the testing, there will be no conclusive evidence as to the driver’s BAC at the time of the accident. In fact, it could have increased between the time of the accident and the time of the blood test or breath test.

Independent investigation by the criminal defense attorney and his or her team of experts is extremely important when presenting a defense to charges of vehicular homicide. An attorney who focuses on drunk driving criminal defense will employ independent investigators to conduct forensic research and reconstruct the accident to uncover evidence that points to the defendant’s innocence. After all, the defense is up against both the police and prosecutors who have the resources to investigate every aspect of the incident to gather evidence against the driver.

Because the consequences are so severe in vehicular homicide cases, and because the effort of the prosecution may be relentless, it’s crucial to hire only the best possible legal representation. A California DUI / DWI attorney and the experts on the defense team can evaluate each case to determine the best possible defense strategy in order to minimize any potential punishments.

California DUI Field Sobriety Tests

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California DUI Field Sobriety Tests

These are not really tests at all; rather, they are physical agility exercises that are subjective in nature, and designed for the accused to fail.

Most people don’t realize that these tests are optional… and the officers who give them sure won’t tell you, but they are. You are perfectly free to politely refuse to take the Field Sobriety Tests in their entirety.

These “tests” may include the following:

Nystagmus: The officer will position an object (such as a pen) 12 inches away from the driver’s face, and move the object from side to side while watching the subject’s eyes. The officer is looking for involuntary jerking or trembling of the eyeball. This jerking or trembling may be a sign that the subject has consumed an intoxicant.

Walk and Turn: The subject takes nine heel-to-toe steps along a line, turns, and takes nine heel-to-toe steps back. The officer is looking to see if the accused can keep their balance, follow instructions, begin early, stop during the test, leave space between heel and toe, step off the line, or lose balance while turning.

Standing on One Leg: The accused is instructed to stand with heels together, arms at the side, then raise one leg six inches off the ground while counting out loud until the officer allows the accused to stop. The officer is looking for raising of the arms, swaying, hopping, putting the foot down, inability to stand still, body tremors, muscle tension, and any statements made by the accused during the test.

Finger to Nose: This test requires the suspect to place his or her feet together while standing straight with eyes closed, and bring the index finger to the nose as ordered by the officer. The officer is looking for body sway, body tremors, eyelid tremors, muscle tension, or any statements made by the accused to support a finding of intoxication.

The Rhomberg Balance Test: The accused assumes a position of attention, closes their eyes, tilts their head back, and estimates 30 seconds. The officer is looking for the inability to stand still or steady, body or eyelid tremors, opening eyes to maintain balance, swaying (either front to back or side to side), muscle tension, or statements made by the accused. The officer is also testing the suspect’s internal clock, which will usually be slow in the case of alcohol or depressants, or fast in the case of stimulants.

Other Field Sobriety Tests include finger tapping, hand clapping, counting backwards, or reciting the alphabet.

These are supposedly tests that are designed to check “divided attention”, a critical skill in operating a motor vehicle. However, there are many people who, for many innocent reasons, cannot perform these tests to the officer’s satisfaction, and pay the price with a DUI arrest.

Preliminary Alcohol Screening Test (PAS Test): One of the most dangerous Field Sobriety Tests is the Preliminary Alcohol Screening test, also called the PAS test. This is a portable breath test to determine the presence of alcohol. The officer is supposed to advise the suspect that the test is voluntary. These PAS tests do not comply with Title 17 of the California Code of Regulations and the results should therefore not be allowed into court.

The most important thing to know about the Field Sobriety Tests is that a skilled California DUI defense lawyer will know how to handle them in court.

Ignition Interlock Devices

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The ignition interlock device is a breathalyzer that is installed in a drunk driving offender’s car. This device is used to eliminate the problem of repeat offenders. A California DUI attorney will be able to provide more information on the viability of this device as an alternative sentence.

The device is linked to the car’s ignition. In order for a driver to start the vehicle, the driver must blow into the breathalyzer. If the breathalyzer registers acceptable blood alcohol content (BAC) levels, then the engine will start. If there are traces of alcohol, the car will not start. Once the car is running, “rolling re-tests” may be required every 15 minutes to one hour.

If the motorist fails to perform the test when prompted, or if the motorist’s BAC has risen to an unacceptable level, the car will stop. This rolling test is meant to ensure that a sober person does not do the initial test just to get the car started. In California it is crime to attempt to assist anyone in disabling an ignition interlock, or to blow into the device to start the vehicle for another driver.

California has been forging ahead in the use of the ignition interlock devices. Recent DUI legislation that became effective on September 20, 2005, makes it mandatory for a repeat offender to have the ignition interlock device installed in his or her car as part of the court’s sentence.

Judges have the discretion to order the installation of the ignition interlock device in the car of any DUI offender whether they are repeat offenders or first-time offenders. This means that any time a judge deems it appropriate, he or she may order the mandatory installation of the ignition interlock device in any vehicle the offender drives. A California criminal defense attorney will make sure that the interlock ignition device is used only when appropriate.

Most commonly, the ignition interlock device is used when a person has refused to submit to a post-arrest chemical test or when the results of a chemical test registered a BAC of .15 percent or greater. A person who is arrested for driving on a suspended license that was suspended as a result of a drunk driving conviction will be required to install the ignition interlock device.

Of primary importance to people arrested for driving under the influence of alcohol in California is that ignition interlock devices are a great bargaining chip for DUI lawyers. A qualified California DUI criminal defense lawyer will be able to use an ignition interlock device as a tool for negotiating a plea bargain with negotiated consequences when the facts allow for it.

The ignition interlock device can be helpful whenever safety and alcohol-free driving is important. For example, parents may use the device to ensure that their teenage children are not drinking and driving. The device can also be used in cases of divorce or separation when one parent is concerned that the other parent may be driving while intoxicated with children in the car.

When Ignition Interlock Devices are Ordered

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When Ignition Interlock Devices are Ordered

Ignition interlock devices operate similarly to breathalyzers during a DUI / DWI investigation. Generally, the driver will breathe into a tube and the device will measure the breath alcohol content (BAC) of the driver. Some devices are set to tolerate a low BAC that is below the legal limit for driving. However, in most cases, the device will be set to prevent a car from starting when there is any trace of alcohol at all. This is largely due to the fact that in most cases of people using ignition interlock devices they are repeat offenders.

California has been leading the way in the use of the ignition interlock devices. DUI legislation that became effective on September 20, 2005, makes it mandatory for a repeat offender to have the ignition interlock device installed in his or her car as part of the court’s sentence. This is the legislature’s effort to both punish repeat offenders, and also to keep them sober when they are on the road.

Judges have the discretion to order the installation of the ignition interlock device such as that offered by smart start of california in the car of any drunk driving offender whether they are repeat offenders or first-time offenders. This means that any time a judge deems it appropriate, he or she may order the mandatory installation of the ignition interlock device. A California DUI / DWI lawyer will make sure that the ignition interlock device is ordered only when appropriate. The device is often ordered when blood alcohol content (BAC) levels are .15 percent or greater.

Prosecutors also have discretion with respect to recommending the ignition interlock devices. Many times a DUI / DWI attorney representing someone accused of driving under the influence of alcohol or driving while intoxicated will enter into negotiations with the prosecutor. This is known as the plea bargain process. The prosecutor may agree to lesser charges or to a shorter sentence or perhaps to electronic monitoring if the driver also agrees to use the ignition interlock device. The device is meant to provide the state with assurances that there will be no repeat instances of drunk driving by this offender.

Ignition interlock devices are now commonly used in California DUI / DWI cases. A California criminal defense attorney can determine whether an ignition interlock device is a good idea for the offender according to the facts of an individual case. There are some cases where the ignition interlock option may not be made available. Other times it is a worthwhile option that can take a bit of the sting out of a driving under the influence conviction.

Settlement Negotiations

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In California, driving under the influence of alcohol is considered a serious crime. While harsh penalties such as jail time, fines, and license suspensions are common sentences for cases involving intoxicated and impaired drivers, the law does provide for alternatives.

These alternatives have been created by the legislature to try to help decrease recidivism and to keep the streets free of drunk drivers. With the assistance of a knowledgeable DUI / DWI lawyer, a driver may get the benefit of alternative punishments that may be more suitable to the driver’s particular case.

Sentencing alternatives are not intended to be a mere slap on the wrist. There are punitive elements involved in each of the sentences, but the sentencing alternatives are created to help people keep their jobs and get treatment for alcohol problems where appropriate, as well as allowing people to do some good for society through community service. Allowing a person to contribute to society with community service is more beneficial to the greater good than keeping the offender looked up in jail or on strict home-imprisonment.

California has been forging ahead in the use of the ignition interlock devices. Recent DUI legislation that became effective on September 20, 2005, makes it mandatory for a repeat offender to have the ignition interlock device installed in his or her car as part of the court’s sentence. Experienced California criminal defense attorneys are informed about ongoing developments in drunk driving law.

The ignition interlock device is linked to the car’s ignition. In order for a driver to start the vehicle, the driver must blow into the breathalyzer. If the breathalyzer registers acceptable breath alcohol content (BAC) levels, then the engine will start. If there are traces of alcohol, the car will not start.

This device is used to eliminate the problem of repeat offenders. A California attorney experienced at defending driving while intoxicated cases will be able to provide more information on the viability of this device as an alternative sentence.

Of primary importance to people arrested for driving under the influence of alcohol in California is that ignition interlock devices are a great bargaining chip for DUI / DWI lawyers. A qualified California DUI criminal defense lawyer will be able to use an ignition interlock device as a tool for negotiating a plea bargain with negotiated consequences when the facts allow for it.

The ignition interlock device is often a great way to allow repeat offenders to keep their jobs and to attend alcohol education classes. A DUI / DWI lawyer will negotiate with the prosecutor to allow the offender person to use the device in order to maintain a somewhat normal lifestyle, while avoiding the possibility of repeat offenses.

Judges have the discretion to order the installation of the ignition interlock device in the car of any drunk driving offender whether they are repeat offenders or first-time offenders. This means that any time a judge deems it appropriate, they may order the mandatory installation of the ignition interlock device. A California criminal defense attorney will make sure that the ignition interlock device is ordered when appropriate.

How Ignition Interlock Devices Work

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Most people who are convicted of a DUI / DWI in California will face jail time, fines, driver’s license suspensions, among other punitive orders. Of the more novel orders is the ignition interlock device. In some cases the ignition interlock device will be mandatory, and at other times, it may be a choice for the driver. A DUI / DWI lawyer will be in a position to assess the viability of the ignition interlock device for their client.

The ignition interlock device attaches to the ignition of a car. A driver will blow into a small alcohol sensor unit that will measure for alcohol on the breath. If there is a certain amount of alcohol on the driver’s breath the car will not start. The BAC of a driver can be adjusted on the device. The device can be set to accept any BAC below .04 percent, but to shut the car down if there is any more than .04 percent alcohol in the driver’s system. The appropriate BAC setting will be determined between a California criminal defense attorney, the judge and the prosecutor.

The ignition interlock device is a sophisticated mechanism that is built to withstand tampering. Furthermore, the device keeps an internal record every time it is removed from its power source in the car. If the device is mandatory, a driver will be penalized for removing it without just cause.

The device is also designed to test the driver’s breath while driving is in progress. Without this feature, a drunk driver may be able to have a sober person blow into the device to get a car started. Therefore, drivers may be required to engage in “rolling re-tests” as they drive. If the BAC spikes above allowed levels during driving, the car will shut down.

The ignition interlock device has been lauded by California DUI / DWI attorneys as well as lawyers from many other states where the popularity of these devices is growing. Studies have shown that where the ignition interlock device has been used, there are fewer repeat offenders. When there are fewer repeat offenders, society benefits. Roads are safer and the court systems are not so clogged with offenders coming in and out on probation violations.

If you believe that the ignition interlock system may be right for you, contact a qualified DUI / DWI lawyer to see if you are eligible to use it. The ignition interlock device can make life easier for a person with a restricted or suspended license if use of the device can eliminate the need for such restrictions or suspensions.

Out-of-State Drivers

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Being arrested for DUI in California can be especially stressful if the driver is from out of state. Accused drunk drivers from states outside California often worry how they will manage court appearances and other aspects of a CA driving under the influence case. However, a skilled defense attorney can handle many aspects of a California drinking and driving arrest and put the accused motorist’s mind at ease. The knowledgeable DUI defense lawyers of The Kavinoky Law Firm are experienced in handling drunk driving cases for motorists licensed outside of California.

The most critical issue for any driver arrested for DUI in California is to request a DMV hearing immediately. Many drivers are unaware that they have only 10 days after a drunk driving arrest to request a hearing with the California Department of Motor Vehicles or have their driving privileges suspended. Although the California DMV can’t seize a driver’s license issued in another state – it is the property of the state that issued it – it can and will suspend the driver’s privileges within California, and may notify the licensing state of the arrest through the Interstate Driver’s License Compact.

The Interstate Driver’s License Compact is an agreement among 45 states to share information about driving-related offenses. Each state that is party to the compact may suspend, restrict, or revoke the state license belonging to the driver. The five states that do not belong to the compact are Georgia, Michigan, Tennessee, Massachusetts, and Wisconsin.

How the driver’s home state reacts to notification of a California DUI arrest will depend on the state. California and other states have administrative systems to address driving under the influence cases through a DMV hearing or similar procedures. Other states may take action only if notified of a drunk driving conviction in criminal court. A few states won’t take any action at all.

For drivers who live in other states, defending a California DUI arrest can be a challenge. However, drivers facing misdemeanor charges likely won’t need to be present for many court appearances – a skilled defense lawyer can represent the driver in court.

In some California DUI cases, out-of-state drivers may want to consider a carefully negotiated plea bargain if available. When a plea agreement provides some consideration for the defendant in the form of a reduced charge and/or sentence, it can be the best possible option for an out-of-state driver, because it brings the drunk driving case to an end and eliminates the need for any future court appearances.

Many out-of-state drivers fear that a California driving under the influence arrest will create a terrible impact on their lives, but it’s possible to reduce or even eliminate the consequences of a DUI arrest. The knowledgeable drunk driving defense lawyers of The Kavinoky Law Firm fight hard to protect the rights of out-of-state drivers charged with drinking and driving offenses. Contact them today for a free consultation.

Benefits of Cleaning Up Criminal Records Through Post-conviction Relief

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Benefits of Cleaning Up Criminal Records Through Post-conviction Relief

If you’ve paid your debt to society after a California criminal conviction with fines, jail time, or the successful completion of probation, clearing your criminal record with post-conviction relief can open doors to employment, professional licenses, education, and perhaps most importantly, achieving peace of mind. The knowledgeable California defense lawyers of The Kavinoky Law Firm will explore every option to clean up your criminal record and help you to make a fresh start.

California passed new legislation that impacts expungement of criminal cases. As of Jan. 1, 2008, you must have a formal hearing to let a judge decide whether expunging your conviction serves the best interests of society and justice. In the past, you could have certain convictions expunged simply by meeting certain requirements, but that’s no longer the case.

However, expunging your California criminal conviction is still entirely possible. Depending on the case and the circumstances, post-conviction relief can result in having your case dismissed even if you were convicted by a jury or pled guilty. If the case is dismissed, then it is treated as though it never occurred. However, post-conviction relief options are not an eraser – the law provides specific circumstances in which the offense must be disclosed, even after the judge grants relief.

Still, disclosing a prior offense that has since been expunged or otherwise forgiven by a judge is extremely beneficial from both a practical and psychological point of view. Practically speaking, if a judge ruled in your favor, it’s going to hold a lot of weight. Psychologically, you have the confidence that your prior offense was dismissed, so you won’t be embarrassed to discuss your past. Effectively, in situations requiring disclosure, post-conviction relief distances one from the negative implications of the prior offense.

If you or someone you know has a California criminal conviction and is applying for a job, educational institution or professional license, it’s important to talk with an experienced criminal defense attorney. Even if the circumstances require disclosure, a skilled criminal defense attorney may be able to help you turn a potentially negative experience into a positive learning experience.

In some ways, criminal records are like a credit report – certain marks such as some drug offenses will automatically be purged after a period of time. Others require approval by a judge.

The benefits of cleaning up your criminal record can alleviate many negative consequences associated with the offense. Post-conviction relief can limit the impact prior convictions have on current and future employment. For example, there are specific instances where an individual may lawfully state that they were not convicted of a prior offense if the offense was later expunged.

Similarly, post-conviction relief can also provide important access to California professional licenses and/or certifications. Professional licensure programs are regulated by the state and require disclosure of any prior conviction. But many state professional licensing boards will grant professional licensures for expunged offenses. The same is true of certain educational or advanced career training programs. Some programs will refuse admittance until prior offenses are dismissed or vacated.

If you or someone you care about is interested in cleaning up a criminal history, please contact an experienced California criminal defense attorney from The Kavinoky Law Firm. We are skilled in post-conviction relief and can provide detailed information on this process.

California Penal Code Section 1203.3

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California Penal Code Section 1203.3

1203.3. (a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby, and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.

(b) The exercise of the court’s authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following: (1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter. (A) If the sentence or term or condition of probation is modified pursuant to this section, the judge shall state the reasons for that modification on the record. (B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor. (2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order. (3) In all cases, if the court has not seen fit to revoke the order of probation and impose sentence or pronounce judgment, the defendant shall at the end of the term of probation or any extension thereof, be by the court discharged subject to the provisions of these sections. (4) The court may modify the time and manner of the term of probation for purposes of measuring the timely payment of restitution obligations or the good conduct and reform of the defendant while on probation. The court shall not modify the dollar amount of the restitution obligations due to the good conduct and reform of the defendant, absent compelling and extraordinary reasons, nor shall the court limit the ability of payees to enforce the obligations in the manner of judgments in civil actions. (5) Nothing in this section shall be construed to prohibit the court from modifying the dollar amount of a restitution order pursuant to subdivision (f) of Section 1202.4 at any time during the term of the probation.

(c) If a probationer is ordered to serve time in jail, and the probationer escapes while serving that time, the probation is revoked as a matter of law on the day of the escape.

(d) If probation is revoked pursuant to subdivision (c), upon taking the probationer into custody, the probationer shall be accorded a hearing or hearings consistent with the holding in the case of People v. Vickers (1972) 8 Cal.3d 451. The purpose of that hearing or hearings is not to revoke probation, as the revocation has occurred as a matter of law in accordance with subdivision (c), but rather to afford the defendant an opportunity to require the prosecution to establish that the alleged violation did in fact occur and to justify the revocation.

(e) This section does not apply to cases covered by Section 1203.2.

Certificates of Rehabilitation and Pardon

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Certificates of Rehabilitation and Pardon

Many people convicted of felonies in California fear that their criminal records will follow them all of their lives, creating hurdles to employment, housing, education, and other opportunities. However, there are several post-conviction relief options that may be available, including a certificate of rehabilitation and pardon. The experienced post-conviction relief lawyers of The Kavinoky Law Firm will evaluate each case to determine whether a California certificate of rehabilitation and pardon may be obtainable.

Certificates of rehabilitation are first sought from the trial court and are the first step in the pardon process. If a certificate is issued, the trial court will recommend that the governor grant a pardon. The governor has the discretion to grant or deny a pardon, unless the individual has multiple felony convictions. In that case, the pardon will require additional approval from the state Supreme Court.

Certificates of rehabilitation are what they sound like— a formal finding that a person is rehabilitated and should be relieved of the burdens of a prior felony conviction. The process of obtaining a certificate of rehabilitation and/or pardon is lengthy and must be done with the assistance of an experienced criminal defense attorney.

Prior convictions can have impact many aspects of life. Most post-conviction relief is limited and provides only partial relief to cleansing a criminal record. Expungement for example, has several key limitations and will neither restore gun possession rights nor alleviate registration as a sex offender under Penal Code 290. Only a pardon can address these consequences.

A governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following a conviction. California Penal Code section 4852.05 states, "During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land."

In general, pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least 10 years and has not engaged in further criminal activity. While the receipt of a certificate of rehabilitation is persuasive in evaluating a pardon application, it is but one of many factors in the governor’s decision to grant the pardon. The 10-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

A certificate of rehabilitation and pardon can truly transform the life of an individual convicted of a felony in California. To learn more about California certificates of rehabilitation and pardons and other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.