Friday, June 30, 2006

DRIVING UNDER THE INFLUENCE CHARGES FOR ATV DRIVERS

WOODLAND HILLS, Calif. — Fans of sun and sand are gearing up for fun summer weekends full of riding ATVs and drinking with friends.  However, those who enjoy a few beers before driving an all-terrain vehicle may be in for an unfortunate surprise:  DUI charges can be brought against them, and those charges can be devastating.

In recent years the dangers and illegality of boating under the influence have been emphasized, and many people now know that they can be arrested for drinking and boating. However, many people do not realize that driving an all-terrain vehicle while impaired is just as dangerous and just as illegal.

“The punishments for driving an ATV while intoxicated are identical to those for driving a car under the influence of alcohol,” said California criminal defense attorney Wendy Wittenberg.  “I’ve dealt with many defendants who were arrested and charged with DUI while driving ATVs.  They were all shocked.  They had no idea that it was illegal, or that they could lose their driving privileges and serve jail time.”

According to California law, a person driving any vehicle on a public highway can be arrested for driving under the influence if his or her blood alcohol content measures .08 percent or more.  If convicted, this person may have to serve jail time, participate in a DUI school and pay fines.  The Department of Motor Vehicles can suspend the defendant’s Class C driver license even without a conviction.

“Of course, when people are arrested for DUI while driving an ATV, many times they argue that they weren’t on a public roadway.  Unfortunately for these defendants, sand dunes are considered public roadways for the purpose of California driving under the influence laws,” said Wittenberg.  “This means that anyone driving in a sand dune while intoxicated can be arrested for DUI.”

Wittenberg has handled many ATV DUI arrests, and she is beginning to see a trend.  “More and more clients are calling me to help defend DUI charges while driving ATVs.  It probably is not due to more people drinking and driving, but more intense surveillance.”

These arrests can happen in a number of ways.  Many times, ATV drivers are turned in by rangers at the dunes.  These rangers will investigate the situation, and then contact the California Highway Patrol or local police department to report a suspicious driver.  In other instances, citizens can call the arresting officers with information about a suspected drunken driver.  The officers will then drive to the scene to investigate the situation and to possibly arrest the offender.

In addition to being illegal, driving an ATV while intoxicated is dangerous.  In the last 20 years, there have been more than 300 ATV-related deaths in California.  It is assumed that at least some of these accidents were due to intoxication of the driver.

“It’s important to use common sense about safety while driving in the dunes,” said Wittenberg.  “Drinking and driving is never a good idea, no matter what vehicle is driven.”

Wendy Wittenberg is an attorney at California-based criminal defense firm The Kavinoky Law Firm.  The attorneys of The Kavinoky Law Firm focus on customer service, and they take pride in their one-on-one approach with clients. They work tirelessly to have the best reputation of all criminal defense firms in the state.  www.NoCuffs.com

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For more information, contact Angie Rupert at (818) 346-4646 or [email protected].
Prepared by Angie Rupert.

New California Laws for 2010

The U.S. Supreme Court has ruled that criminal suspects’ statements can be used against them if they fail to invoke their rights.
The court ruled 5-4 that criminal suspects have a duty to invoke the rights outlined in the historic Miranda vs. Arizona decision, including the right to remain silent and to have an attorney present during questioning. In the past, the court held that the government had the burden of demonstrating that a suspect had knowingly and intelligently waived his rights.

Tuesday’s ruling addressed a Michigan case where a man was convicted of murder based largely on his one-word response to a question after nearly three hours of interrogation.  His conviction was overturned by an appeals court that ruled that using his answer to convict him violated his right against self-incrimination. The Supreme Court’s ruling overturned that decision.
Our constitutional rights have eroded considerably in recent years, so it’s more important than ever to have a skilled defense lawyer on your side if you’re under investigation for a criminal charge.  The top California defense attorneys of The Kavinoky Law Firm are well-known for standing up for the rights of their clients, and will do everything possible to protect you during a criminal investigation. Contact a skilled California defense lawyer today at 1-800-NO-CUFFS for a free consultation.

A new year brings new laws in California, and 2010 is no exception.  There are a number of new laws on the books that impact convicted DUI drivers and certain individuals charged with theft or other property crimes. Another new law increases the amount of time credit earned by certain inmates in California county jails and prisons.  Yet another new law prevents authorities from sending low-level, non-violent offenders back to prison for parole violations. As in every year, the list of new California laws is lengthy, so we’ve summarized the most noteworthy ones here. If you have any questions about any of these new laws and how they will affect your case, you can always contact The Kavinoky Law Firm at 1-800-NO-CUFFS.

Two new laws will impact many individuals convicted of DUI. AB 91 creates a pilot program that requires every driver convicted of DUI in Los Angeles, Alameda, Sacramento and Tulare counties – even first offenders – to install and use an ignition interlock device.  The law will remain in effect until 2016, when the pilot program may be extended and expanded to include other counties.

SB 598 is a bill that will allow DUI offenders to obtain restricted driver’s licenses sooner than they would otherwise if they install and use an ignition interlock device.  Convicted DUI drivers will still have a certain period of “hard” suspension when they are not allowed to drive at all, but that hard suspension will be shortened by installing an ignition interlock device.

A new law that takes effect January 25, 2010 increases the dollar amount that determines whether more than 30 theft and property crime offenses can be charged as felonies rather than misdemeanors.  For example, the threshold for a felony charge of writing a check with non-sufficient funds increased from $200 to $400. The limits for some offenses, such as theft of currency or jewelry, remain unchanged.

Certain individuals serving time in California county jails will earn more time credits than before under another new law that takes effect on January 25, 2010. In the past, inmates in county jails earned two days of credit for every four days spent in custody. Under the new law, they will earn two days of credit for every two days served.  Some defendants are excluded from earning the additional credit for time served. They include individuals convicted of violent felonies who are limited to a 15-percent reduction credit under California Penal Code section 2933.1; those required to register as sex offenders; and individuals convicted of serious felonies or with prior convictions for serious felonies. Up to six weeks of additional credit can also be earned by many state prison inmates who complete certain prison programs.

Another new law that takes effect January 25, 2010 prevents certain individuals from being returned to prison for parole violations. The individual cannot be returned to prison for a parole violation if all of the following are true: he or she is not required to register as a sex offender, wasn’t convicted of a serious felony, doesn’t have a prior conviction for a serious felony, wasn’t convicted of a sexually violent offense, wasn’t found guilty of a serious disciplinary offense, isn’t a validated gang member or associate, didn’t refuse to sign a notification of parole conditions, and wasn’t determined in an evaluation to have a high risk of reoffending.

Understanding California’s complex criminal statutes and the many new laws that are passed each year is difficult. Fortunately, the knowledgeable California defense attorneys of The Kavinoky Law Firm ensure that they’re up on the latest developments in the law, so that you don’t have to.  If you have any questions about any aspect of your California criminal case, please don’t hesitate to call us today at 1-800-NO-CUFFS.

New California Driving Laws for 2009

As of January 1, 2009, a host of new driving laws went on the books in California, and being aware of these statutes will help you avoid trouble with the law in the New Year. As always, if you have any questions about any California Vehicle Code, feel free to contact an attorney from The Kavinoky Law Firm at 1.877.466.2833 for more information.

Perhaps the most talked-about new law is California’s ban on texting. As of January 1, it’s against the law to type, send, and read electronic messages while behind the wheel. Like California’s law requiring the use of hands-free cell phones while driving, the new text-messaging ban carries a $20 fine for a first offense and a $50 fine for a second offense, but the state’s “penalty assessment” means the fine will be significantly higher.

Even more importantly, violating either of these laws gives police probable cause to pull you over, which can lead to more serious charges. These types of relatively minor violations can result in an arrest for DUI or another serious offense.

Another new law impacts drivers who are on probation for a California DUI conviction. Under the new zero-tolerance law, drivers on probation for a prior DUI conviction who have any measurable amount of alcohol in their systems will have their driver’s licenses suspended.

California has also lowered the threshold for ignition interlock devices, or IIDs, in DUI cases. In the past, California law required that judges give “heightened consideration” to ordering DUI drivers with a blood alcohol content (BAC) of .20 percent or greater to use an ignition interlock device. The new law lowers the threshold for an IID, which prevents a car from starting if the driver cannot provide an alcohol-free breath sample, to .15 percent.

Beginning in July 2009, drivers who are caught driving after having their licenses suspended for a prior DUI conviction will also be required to use an ignition interlock device. This new law also transfers authority over the use of ignition interlock devices from the courts to the California Department of Motor Vehicles.

New California legislation also requires drivers convicted of DUI or alcohol-related reckless driving – also known as “wet-reckless” – to attend a nine-month alcohol-education program if they’ve been convicted of another DUI or wet-reckless offense within the past decade.

Other changes to the law include new criminal penalties for forging Clean Air stickers, harsher penalties for those who make frivolous 911 calls, and changes to the law that governs where GPS units can be mounted. In the past, mounting the unit on the windshield was against the law. Now drivers can mount the devices in a 7-inch square on the lower passenger side of the windshield or a 5-inch square on the lower corner of the driver’s side.

By keeping yourself informed about California’s ever-evolving vehicle and criminal codes, you can better prepare yourself to stay out of trouble in 2009. And should you ever need us, the experienced California defense lawyers of The Kavinoky Law Firm are here to help. You can contact us at 1.877.466.2833 for answers to all of your questions about California vehicle and criminal codes.

 

Boating, flying and bicycling under the influence are separate offenses under California law. Each offense carries significant consequences, but can be successfully challenged by a California defense attorney who is well-versed in defending DUI / DWI charges involving motorcycles, vessels, aircraft and bicycles. Challenging DUI cases involving motorcycles, vessels, aircraft and bicycles can be done in much the same way as cases for driving cars under the influence of alcohol or while intoxicated can be challenged.

The California Vehicle Code defines a vehicle as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power or used exclusively upon stationary rails or tracks.” This definition encompasses automobiles, trucks, motorcycles, mopeds, scooters, and bulldozers.

Motorcycling under the influence, for most purposes, is the same thing as a DUI / DWI case for drunk driving in a car. The case will be prosecuted pursuant to the same statutes. There will be a criminal case, and an administrative hearing at the DMV. A California defense attorney for DUI / DWI’s can handle both situations. If the motorcyclist fails to request a DMV hearing within 10 days (including weekends and holidays), the Department of Motor Vehicles will begin the process of suspending the license.

The standard of proof at the DMV hearing is the preponderance of the evidence. To find the defendant guilty, a judge must find that the arrest was lawful and that the motorcyclist had a BAC of .08 percent or higher.

Court punishments for the motorcyclist convicted of driving under the influence are the same as the punishments for those who are convicted of driving cars under the influence of alcohol. Those punishments include jail time, fines, alcohol education classes, the ignition interlock device, and probation.

Boating under the influence, or BUI / BWI, is governed by California’s Harbors and Navigation Code. Under the code, a person is considered too impaired to operate a recreational vessel with a BAC of .08 percent or greater. The standard is .04 percent for operating a commercial vessel. Individuals using aquaplanes and water skis and similar crafts are not allowed to have ingested any alcohol at all. A zero-tolerance policy is in effect for all such crafts.

A person convicted for boating under the influence can face penalties including jail time and fines. A California defense lawyer can effectively limit the consequences of a BUI / BWI conviction.

Flying an aircraft under the influence of alcohol or drugs (FUI / FWI) is a serious crime. This applies to both commercial and private airplanes. Flying under the influence of alcohol or drugs can be charged as a federal and/or state crime. Pilots who fly under the influence can be charged under federal and/or state law.

Crew members of civil aircraft are governed by the Federal Aviation Administration (FAA). The FAA rules stipulate that no-one may serve as a crew member if he or she has consumed alcohol within eight hours of a flight. Furthermore, anyone with a BAC of .04% or greater, or is under the influence of drugs or alcohol may not serve as a crew member. These over-inclusive rules indicate the seriousness with which the FAA looks upon flying under the influence. A person found violating these strict rules faces imprisonment, fines, and revocation of his or her pilot’s license.

Pilots of civil aircraft are subject to the implied Consent Law. This means that any pilot who has been arrested on suspicion of flying under the influence of alcohol or drugs must submit to a chemical test or face large fines and license suspension or revocation.

Pilots also face possible licensing issues for DUI / DWI convictions. All convictions for drunk driving must be reported on a pilot’s first-class medical application as well as to the Civil Action Security Division that is located in Oklahoma City. The relevant agencies will look harshly upon such DUI / DWI convictions.

A conviction for cycling under the influence (CUI) can result in a fine of $250. There is no jail time or license suspension. Technically, a bicycle is not a vehicle, and the dangers of cycling drunk are considerably less than driving a vehicle while intoxicated. Therefore, the Vehicle Code does not cover cycling under the influence of alcohol or drugs. However, the Vehicle Code does state that it is unlawful to ride a bicycle on the highway while under the influence. One common challenge to a CUI is that the bicycle-rider was on a private road or driveway instead of a “highway.”

Charges of riding a motorcycle, boating, flying or riding a bicycle under the influence of alcohol or drugs can carry harsh consequences. However, a skilled California defense attorney with experience defending BUI, motorcycling under the influence, FUI / FWI, and CUI cases can successfully challenge these offenses in court and can achieve results that limit the penalties and consequences associated with the charges.

California Vehicle Code VC 13353.1 – Refusal to Take Preliminary Alcohol Screening Test

13353.1. (a) If a person refuses an officer’s request to submit to, or fails to complete, a preliminary alcohol screening test pursuant to Section 13388, upon the receipt of the officer’s sworn statement, submitted pursuant to Section 13380, that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23136, and that the person had refused to submit to, or did not complete, the test after being requested by the officer, the department shall do one of the following:

1. Suspend the person’s privilege to operate a motor vehicle for a period of one year.
2. Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either of the following:
   1. A separate violation of subdivision (a) of Section 23136, that resulted in a finding of a violation, or a separate violation, that resulted in a conviction, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, of Section 191.5 of the Penal Code, or of paragraph (3) of subdivision (c) of Section 192 of that code.
   2. A suspension or revocation of the person’s privilege to operate a motor vehicle if that action was taken pursuant to this section or Section 13353 or 13353.2 for an offense that occurred on a separate occasion.
3. Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:
   1. Two or more separate violations of subdivision (a) of Section 23136, that resulted in findings of violations, or two or more separate violations, that resulted in convictions, of Section 23103, as specified in Section 23103.5, of Section 23140, 23152, or 23153, of Section 191.5 of the Penal Code, or of paragraph (3) of subdivision (c) of Section 192 of that code, or any combination thereof.
   2. Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle if those actions were taken pursuant to this section, or Section 13353 or 13353.2, for offenses that occurred on separate occasions.
   3. Any combination of two or more of the convictions or administrative suspensions or revocations described in subparagraph (A) or (B).

(b) For the purposes of this section, a conviction of any offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, or 23153, or Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, is a conviction of that particular section of the Vehicle or Penal Code.

(c) The notice of the order of suspension or revocation under this section shall be served on the person by the peace officer pursuant to Section 13388 and shall not become effective until 30 days after the person is served with that notice. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 13388, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For the purposes of this section, the scope of the administrative review shall cover all of the following issues:

1. Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section23136.
2. Whether the person was lawfully detained.
3. Whether the person refused to submit to, or did not complete, the test after being requested to do so by a peace officer.

(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.

Amended Sec. 3.10, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 19, Ch. 473, Stats. 2001. Effective January 1, 2002.
Amended Sec. 7, Ch. 550, Stats. 2004. Effective January 1, 2005.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 13363 – Conviction in Another State

13363. (a) The department may, in its discretion, except as provided in Chapter 6 (commencing with Section 15000) of Division 6, of this code, suspend or revoke the privilege of any resident or nonresident to drive a motor vehicle in this State upon receiving notice of the conviction of the person in a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada of an offense therein which, if committed in this State, would be grounds for the suspension or revocation of the privilege to operate a motor vehicle.

(b) Whenever any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada reports the conviction of a violation in such place by a person licensed in this State, the department shall not give effect to such report pursuant to subdivision (a) of this section or Section 15023 unless the department is satisfied that the law of such other place pertaining to the conviction is substantially the same as the law of this State pertaining to such conviction and that the description of the violation from which the conviction arose, is sufficient and that the interpretation and enforcement of such law are substantially the same in such other place as they are in this State.

Amended Ch. 237, Stats. 1963. Effective September 20, 1963.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 13376 – Denial, Revocation, Add or Suspension of Driver Certificates

13376. (a) ( )1 This section applies to the following certificates:

1. Schoolbus.
2. School pupil activity bus.
3. Youth bus.
4. General public paratransit vehicle.
5. Vehicle used for the transportation of developmentally disabled persons.

(b) (1) The department shall revoke a certificate listed in subdivision (a), ( )2 for three years if the certificate holder refuses to submit to a test for, fails to comply with the testing requirements for, or receives a positive test for a controlled substance, as specified in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations and Section 34520. However, the department shall not revoke a certificate under this paragraph if the certificate holder is in compliance with any rehabilitation or return to duty program that is imposed by the employer that meets the controlled substances and alcohol use and testing requirements set forth in Part 382 (commencing with Section 382.101) of Title 49 of the Code of Federal Regulations. The driver shall be allowed to participate in a rehabilitation or return to duty program only once within a three-year period. The employer or program shall report any subsequent positive test result or drop from the program to the department on a form approved by the department.

(2) If an applicant refuses to submit to a test for, fails to comply with the testing requirements for, or receives a positive test ( )3 for a controlled substance, the department shall ( )4 refuse the application for a certificate listed in subdivision (a) for three years from the date of the confirmed positive test result.

(3) The carrier that requested the test shall report the refusal, failure to comply, or positive test result to the department not later than five days after receiving notification of the test result on a form approved by the department.

(4) The department shall maintain a record of any action taken for a refusal, failure to comply, or positive test result ( )5 in the driving record of the applicant or certificate holder for three years from the date of the ( )6 refusal, failure to comply, or positive test result.

(c) (1) The department may temporarily suspend a schoolbus, school pupil activity bus, youth bus, or general public paratransit driver certificate, or temporarily withhold issuance of a certificate to an applicant, if the holder or applicant is arrested for or charged with any sex offense, as defined in Section 44010 of the Education Code.

(2) Upon receipt of a notice of temporary suspension, or of the department’s intent to withhold issuance, of a certificate, the certificate holder or applicant may request a hearing within 10 days of the effective date of the department’s action.

(3) The department shall, upon request of the holder of, or applicant for, a certificate, within 10 working days of the receipt of the request, conduct a hearing on whether the public interest requires suspension or withholding of the certificate pursuant to paragraph (1).

(4) If the charge is dismissed or results in a finding of not guilty, the department shall immediately terminate the suspension or resume the application process, and shall expunge the suspension action taken pursuant to this subdivision from the record of the applicant or certificate holder.

(d) An applicant or holder of a certificate may reapply for a certificate whenever a felony or misdemeanor conviction is reversed or dismissed. A termination of probation and dismissal of charges pursuant to Section 1203.4 of the Penal Code or a dismissal of charges pursuant to Section 1203.4a of the Penal Code is not a dismissal for purposes of this section.

(e) The determination of the facts pursuant to this section is a civil matter which is independent of the determination of the person’s guilt or innocence, has no collateral estoppel effect on a subsequent criminal prosecution, and does not preclude the litigation of the same or similar facts in a criminal proceeding.

Amended Sec. 2, Ch. 738, Stats. 1997. Effective January 1, 1998.
Amended Sec. 7, Ch. 66, Stats. 2005. Effective January 1, 2006.
The 2005 amendment added the italicized material, and at the point(s) indicated, deleted the following:

1. "The department shall revoke a schoolbus, school pupil activity bus, youth bus, or general public paratransit driver certificate, and shall deny an application for that certificate, for any of the following causes:
   1. The applicant or certificate holder has been convicted of any sex offense as defined in Section 44010 of the Education Code.
   2. The applicant has, within the three years preceding the application date, either been convicted of a violation of Section 20001, 23103, 23104, 23152, or 23153, or has his or her driving privilege suspended, revoked, or placed on probation by the department for a cause involving the safe operation of a motor vehicle.
   3. The applicant has, within the two years preceding the application date, been convicted of any offense specified in Section 11361.5 of the Health and Safety Code.
   4. The applicant has failed to meet the prescribed testing requirements for issuance of the certificate."
2. "following an opportunity to challenge the validity of the testing described in this paragraph, for three years if the certificate holder has received a positive test result"
3. "result and has been provided an opportunity to challenge the validity of the test"
4. "deny"
5. "reported under paragraph (3)"
6. "department receives the report"

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 23596 – Vehicle Declared Nuisance: Sale of Vehicle

23596. (a) (1) Upon its own motion or upon motion of the prosecutor in a criminal action for a violation of any of the following offenses, the court with jurisdiction over the offense, notwithstanding Section 86 of the Code of Civil Procedure and any other provision of law otherwise prescribing the jurisdiction of the court based upon the value of the property involved, may declare the motor vehicle driven by the defendant to be a nuisance if the defendant is the registered owner of the vehicle:

1. A violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code.
2. A violation of Section 23152 which occurred within seven years of two or more separate offenses of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, or Section 23152 or 23153, or any combination thereof, which resulted in convictions.
3. A violation of Section 23153 which occurred within seven years of one or more separate offenses of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, or Section 23152 or 23153, which resulted in convictions.

(2) The court or the prosecutor shall give notice of the motion to the defendant, and the court shall hold a hearing before a motor vehicle may be declared a nuisance under this section.

(b) Except as provided in subdivision (g), upon the conviction of the defendant and at the time of pronouncement of sentence, the court with jurisdiction over the offense shall order any vehicle declared to be a nuisance pursuant to subdivision (a) to be sold. Any vehicle ordered to be sold pursuant to this subdivision shall be surrendered to the sheriff of the county or the chief of police of the city in which the violation occurred. The officer to whom the vehicle is surrendered shall promptly ascertain from the department the names and addresses of all legal and registered owners of the vehicle and, within five days of receiving that information, shall send by certified mail a notice to all legal and registered owners of the vehicle other than the defendant, at the addresses obtained from the department, informing them that the vehicle has been declared a nuisance and will be sold or otherwise disposed of pursuant to this section and of the approximate date and location of the sale or other disposition. The notice shall also inform any legal owner of its right to conduct the sale pursuant to subdivision (c).

(c) Any legal owner who is a motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed finance institution legally operating in this state, or the agent of that legal owner, may take possession and conduct the sale of the vehicle declared to be a nuisance if it notifies the officer to whom the vehicle is surrendered of its intent to conduct the sale within 15 days of the mailing of the notice pursuant to subdivision (b). Sale of the vehicle pursuant to this subdivision may be conducted at the time, in the manner, and on the notice usually given for the sale of repossessed or surrendered vehicles. The proceeds of any sale conducted by the legal owner shall be disposed of as provided in subdivision (e). A notice pursuant to this subdivision may be presented in person, by certified mail, by facsimile transmission, or by electronic mail. The agent of a legal owner acting pursuant to this subdivision shall be licensed, or exempt from licensure, pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code.

(d) If the legal owner or the agent of the legal owner does not notify the officer to whom the vehicle is surrendered of its intent to conduct the sale as provided in subdivision (c), the officer shall offer the vehicle for sale at public auction within 60 days of receiving the vehicle. At least 10 days but not more than 20 days prior to the sale, not counting the day of the sale, the officer shall give notice of the sale by advertising once in a newspaper of general circulation published in the city or county, as the case may be, in which the vehicle is located, which notice shall contain a description of the make, year, model, identification number, and license number of the vehicle and the date, time, and location of the sale. For motorcycles, the engine number shall also be included. If there is no newspaper of general circulation published in the county, notice shall be given by posting a notice of sale containing the information required by this subdivision in three of the most public places in the city or county in which the vehicle is located, and at the place where the vehicle is to be sold, for 10 consecutive days prior to and including the day of the sale.

(e) The proceeds of a sale conducted pursuant to this section shall be disposed of in the following priority:

1. To satisfy the costs of the sale, including costs incurred with respect to the taking and keeping of the vehicle pending sale.
2. To the legal owner in an amount to satisfy the indebtedness owed to the legal owner remaining as of the date of the sale, including accrued interest or finance charges and delinquency charges.
3. To the holder of any subordinate lien or encumbrance on the vehicle to satisfy any indebtedness so secured if written notification of demand is received before distribution of the proceeds is completed. The holder of a subordinate lien or encumbrance, if requested, shall reasonably furnish reasonable proof of its interest and, unless it does so on request, is not entitled to distribution pursuant to this paragraph.
4. To any other person who can establish an interest in the vehicle, including a community property interest, to the extent of his or her provable interest.
5. If the vehicle was forfeited as a result of a felony violation of Section 191.5 of the Penal Code, or of Section 23153 that resulted in serious bodily injury to any person other than the defendant, the balance, if any, to the city or county in which the violation occurred, to be deposited in its general fund.
6. Except as provided in paragraph (5), the balance, if any, to the city or county in which the violation occurred, to be expended for community-based adolescent substance abuse treatment services.

The person conducting the sale shall disburse the proceeds of the sale as provided in this subdivision, and provide a written accounting regarding the disposition to all persons entitled to or claiming a share of the proceeds, within 15 days after the sale is conducted.

(f) If the vehicle to be sold under this section is not of the type that can readily be sold to the public generally, the vehicle shall be destroyed or donated to an eleemosynary institution.

(g) No vehicle shall be sold pursuant to this section in either of the following circumstances:

1. The vehicle is stolen, unless the identity of the legal and registered owners of the vehicle cannot be reasonably ascertained.
2. The vehicle is owned by another, or there is a community property interest in the vehicle owned by a person other than the defendant and the vehicle is the only vehicle available to the defendant’s immediate family that may be operated on the highway with a class 3 or class 4 driver’s license.

(h) The Legislature finds and declares it to be the public policy of this state that no policy of insurance shall afford benefits that would alleviate the financial detriment suffered by any person as a direct or indirect result of a confiscation of a vehicle pursuant to this section.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 7, Ch. 582, Stats. 1998. Effective January 1, 1999.
Repealed Sec. 40.2 and added Sec. 40.4, Ch. 22, Stats. 1999, without change in text. Effective May 26, 1999. Operative July 1, 1999.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance, www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 23626 – Effect of Conviction in Another Jurisdiction

23626. A conviction of an offense in any state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada which, if committed in this state, would be a violation of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, is a conviction of Section 23152 or 23153 of this code, or Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code for the purposes of this code.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.

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California Vehicle Code VC 23540 – Penalty: Second Offense Within Ten Years

23540. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000). The person’s privilege to operate a motor vehicle shall be suspended by the department pursuant to paragraph (3) of subdivision (a) of Section 13352. The court shall require the person to surrender the driver’s license to the court in accordance with Section 13550.

(b) Whenever, when considering the circumstances taken as a whole, the court determines that the person punished under this section would present a traffic safety or public safety risk if authorized to operate a motor vehicle during the period of suspension imposed under paragraph (3) of subdivision (a) of Section 13352, the court may disallow the issuance of a restricted driver’s license required under Section 13352.5.

(c) This section shall become operative on September 20, 2005.

Added Sec. 17.5, Ch. 551, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.

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California Vehicle Code VC 23217 – Legislative Declarations: Mandatory Minimum Penalties for Multiple Offenses

23217. The Legislature finds and declares that some repeat offenders of the prohibition against driving under the influence of alcohol or drugs, when they are addicted or when they have too much alcohol in their systems, may be escaping the intent of the Legislature to punish the offender with progressively greater severity if the offense is repeated one or more times within a 10-year period. This situation may occur when a conviction for a subsequent offense occurs before a conviction is obtained on an earlier offense.

The Legislature further finds and declares that the timing of court proceedings should not permit a person to avoid aggravated mandatory minimum penalties for multiple separate offenses occurring within a 10-year period. It is the intent of the Legislature to provide that a person be subject to enhanced mandatory minimum penalties for multiple offenses within a period of 10 years, regardless of whether the convictions are obtained in the same sequence as the offenses had been committed.

Nothing in this section requires consideration of judgment of conviction in a separate proceeding that is entered after the judgment in the present proceeding, except as it relates to violation of probation.

Nothing in this section or the amendments to Section 23540, 23546, 23550, 23560, 23566, 23622, or 23640 made by Chapter 1205 of the Statutes of 1984 affects the penalty for a violation of Section 23152 or 23153 occurring prior to January 1, 1985.

Amended Sec. 72.5, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 11, Ch. 550, Stats. 2004. Effective January 1, 2005.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
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