Motion to Strike Prior Convictions/Bifurcate Jury Trial

The skilled DUI / DWI defense lawyers at The Kavinoky Law Firm have the experience needed to use pretrial motions to the accused drunk driver’s advantage in a California drinking and driving case. One motion that can be employed is a request to strike prior convictions for driving under the influence from the defendant’s record.

Prior DUI / DWI convictions have a dramatic impact on every aspect of a drinking and driving case – from bail to sentencing. California has a 10-year "washout" period for driving while intoxicated convictions, meaning that if a person is arrested for drunk driving within 10 years of a prior offense, the second arrest will be charged as a multiple DUI / DWI. If that second arrest occurs more than 10 years later, then the second arrest is treated as a first offense.

Punishment for a multiple drunk driving offense can include jail sentences, large fines, attendance at mandatory alcohol education classes, and other repercussions. When someone suffers a second, third, or fourth offense within a 10-year span, the punishment exposure goes up dramatically.

Drivers are sometimes charged with a second– or third-time offender even though their previous cases are still being resolved in the courts. The California Legislature has declared that the timing of court proceedings should not impact the courts in imposing enhanced penalties for multiple offenses.

For example, a defendant may be in the midst of a second-time DUI case and get arrested for a third drunk driving offense. The court in the third case can sentence the defendant as a third-time drunk driver, even though the defendant has not been convicted as a second-time DUI driver. The only hard and fast rule is that the offenses occur within a 10-year span.

Because of this pitfall, a driver facing multiple unresolved DUI cases may want to consider requesting a bifurcated trial. This is where a prior is tried separately from, and after, the DUI charges. Because prior convictions are enhancements and not elements of the DUI offense, the court must grant bifurcation if the defendant makes the request in a timely manner.

In some instances, prior driving under the influence convictions can transform a misdemeanor drunk driving charge into a felony, with the possibility that the judge in the case will impose time in state prison. That is why it is critical that a skilled DUI attorney analyze any prior convictions to determine the best defense.

Before deciding to challenge a prior conviction, the defense lawyer must be fully informed about the prior conviction. This is usually achieved by a written request from the convicting court. The type of documentation the court will usually provide includes minute orders, the defendant’s written waiver of constitutional rights, and possibly transcripts of prior plea proceedings.

Some prior convictions cannot be used by the prosecution to seek enhanced punishment, such as those convictions that have been determined to be invalid under the U.S. Constitution. Juvenile convictions also cannot be used for enhancement purposes.

Crimes that qualify as prior crimes include the common DUI charge (California Vehicle Code Section 23152, DUI with injury (VC 23153), "wet reckless" (VC 23103.5), out-of-state DUI convictions (VC 23626), federal DUI convictions (VC 13352d), Boating under the Influence (Harbors and Navigation Code Section 655), and those DUI convictions that have been dismissed per Penal Code Section 1203.4 (the expungement provision).

Only one constitutional challenge is allowed per prior conviction, and the court’s ruling is binding on the prosecution, the defendant, and the DMV in all future judicial and administrative proceedings. Failure to obtain the records in a timely manner may result in denial of the motion to strike or its postponement until the time of sentencing. An experienced criminal defense drunk driving attorney will employ an effective motion to strike prior convictions in an attempt to prevent past acts from increasing punishment in a California driving while intoxicated case.

A motion to strike a prior conviction must state the specific constitutional rights the defendant is alleging will be violated by the prior conviction being used to enhance punishment. For example, the defendant can assert that the prior guilty plea was not voluntarily and intelligently offered.

A California lawyer experienced in defending multiple DUI / DWI cases will evaluate any prior convictions to determine whether they can be stricken from the defendant’s record to avoid additional punishment.

Police investigating a DUI / DWI in California often have the driver take the Finger-to-Nose Test or another field sobriety test before making an arrest. Unfortunately, field sobriety tests shouldn’t be called tests at all, because they’re designed to be failed. They’re used only to establish probable cause to make an arrest and generate ammunition for a drunk driving court prosecution. The good news is that the results of field sobriety tests can be successfully challenged by a skilled attorney. An experienced DUI / DWI defense lawyer from The Kavinoky Law Firm can aggressively challenge the Finger-to-Nose Test and other drunk driving evidence to create reasonable doubt of the driver’s guilt.

The Finger-to-Nose Test is so unreliable an indicator of alcohol impairment that it’s not even standardized by the National Highway Traffic Safety Administration (NHTSA). Because the NHTSA does not endorse the Finger-to-Nose Test as a valid gauge of alcohol impairment, it holds less weight in court than a standardized test.

Police officers conduct the Finger-to-Nose Test by instructing the driver to touch his or her index finger to the nose with eyes closed and head tilted back. The driver is told to continue to touch the left or right index finger to the nose at random. While administering the test, the officer is watching for the following signs that the driver is intoxicated: An inability to follow instructions; poor depth perception; swaying, muscle tightening or tremors; or an inability to touch the finger directly to the tip of the nose. The officer also will make a note of any statements made by the driver during the test.

Clearly, drivers don’t take the Finger-to-Nose Test under the best of circumstances; it is usually given by the side of a busy freeway or street as cars whiz past. The driver is typically nervous after being ordered from his or her car. And the Finger-to-Nose Test has no objective scoring system – the outcome of this “test” is based entirely on the officer’s opinion. Some officers don’t even conduct the test properly.

There are many conditions unrelated to alcohol use that could cause a driver to perform poorly on the Finger-to-Nose Test. Injury, illness, motor-skill difficulties, or just plain nervousness could cause a driver to “fail” the test. However, police rarely take these issues into consideration when conducting the Finger-to-Nose exercise or other field sobriety tests.

In fact, police often fail to tell drivers that the Finger-to-Nose Test and other field sobriety tests are completely optional. Unlike chemical tests given after a motorist is arrested for drunk driving, field sobriety tests are totally voluntary. If given an option, obviously drivers arrested for DUI / DWI would decline to create evidence to be used against them in court, but police are usually less than forthright about the test being voluntary.

An attorney with experience defending driving under the influence cases will challenge the officer’s interpretation of the Finger-to-Nose Test and demonstrate that the results indicate the driver wasn’t impaired. A California defense lawyer skilled in fighting drunk driving cases can mount an aggressive defense and contest the results of any field sobriety test.

When conducting sobriety checkpoints, police must follow strict guidelines outlined by the California Supreme Court in the landmark case Ingersoll vs. Palmer. If police do not follow the criteria laid out in Ingersoll, the DUI / DWI roadblock isn’t lawful, and any evidence gathered during a drunk driving arrest may not be admissible in court. The skilled DUI / DWI defense lawyers from The Kavinoky Law Firm can determine whether a sobriety checkpoint was conducted lawfully.

In the Ingersoll decision, the Court outlined eight (8) requirements designed to minimize the intrusiveness on the individual and balance the needs of society to keep drunk drivers off the road.

According to Ingersoll, supervisory police officers, not officers in the field, must make decisions about the establishment and location of sobriety checkpoints. This is important to reduce the potential for arbitrary and random enforcement.

The Court’s decision also limited the discretion of police to stop drivers at checkpoints. Police should use a neutral mathematical formula, such as every third, fifth, or tenth driver, to determine which vehicles to stop. This requirement takes away the discretion of the individual officer to choose to stop drivers based on appearance.

Maintaining safety for motorists and officers must be a primary consideration. Proper lighting, warning signs and signals, and clearly identifiable official vehicles and personnel are required. The checkpoint should only be operated when the traffic volume allows the operation to be conducted safely.

A supervisory officer must choose a location that will be most effective in actually stopping drunk drivers, such as roads which have a high incidence of alcohol-related accidents and arrests.

The time and duration of DUI / DWI roadblocks also must be considered. Police must use good judgment in scheduling sobriety checkpoints, with an eye to effectiveness of the operation, and with the safety of motorists in mind. So long as these considerations are in effect, there are no specific rules about the timing or duration of the roadblock.

Sobriety checkpoints also must be highly visible so that drivers can easily see the nature of the roadblock. Flashing warning lights, adequate lighting, police vehicles, and the presence of uniformed officers all contribute to visibility. Not only are such factors important for safety reasons, but advance warning will reassure motorists that the stop is duly authorized.

Each driver should be stopped only long enough for the officer to question the driver briefly and to look for signs of intoxication, such as slurred speech, alcohol on the breath, and glassy or bloodshot eyes. If the driver doesn’t show any signs of impairment, he or she should be permitted to drive on without further delay. If the officer does observe signs of impairment, the driver may be directed to a separate area for a field sobriety test. At that point, probable cause must propel any additional investigation, and general principles of detention and arrest would apply.

The public should be informed in advance about sobriety checkpoints, although police are not required to disclose its specific location. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock. Advance notice is intended to limit the intrusion upon the individual’s personal dignity and security because those stopped would anticipate and understand what was happening. Further, advance publicity serves to establish the legitimacy of roadblocks in the minds of motorists.

Drivers who take steps to avoid a roadblock cannot be stopped merely because they attempted to avoid the checkpoint. However, if the driver commits a vehicle code violation or displays obvious signs of intoxication, there is adequate probable cause to pull over the motorist, after which point general principles of detention and arrest apply.

The California Supreme Court’s Ingersoll decision gave police latitude in conducting sobriety checkpoints, but it also established guidelines under which the roadblocks must be operated. If police don’t follow that protocol, the evidence gathered as a result of the roadblock may be suppressed as a violation of the driver’s Fourth Amendment rights. A California DUI / DWI lawyer who is well-versed in the requirements of sobriety checkpoints can determine whether a roadblock was lawfully executed, and whether any evidence gathered is likely to be suppressed.

In California, driving under the influence of alcohol or driving while intoxicated is a crime that the law does not take lightly. While harsh penalties such as jail time, fines, and license suspensions are common sentences in such cases, the law in California does provide for alternative sentences. With the help of an experienced DUI / DWI lawyer, a driver may be able to get the benefit of alternative punishments that may be more suitable to the motorist’s particular drunk driving case.

One of the more common forms of community service is freeway cleanup. D.U.I. offenders who work in freeway cleanup do so by joining a Caltrans work crew as a condition of probation. Pursuant to a program known as good time/work time custody credits, hours spent working with Caltrans will be credited toward jail time a person would otherwise be serving. Each hour of cleanup will be equal to one hour of a jail sentence.

The Caltrans work day lasts eight hours and it involves picking up trash, clearing brush, and cleaning graffiti from walls along the freeways. The Caltrans work day usually begins at 6 a.m. in the parking lot of a Caltrans location, where workers board vans to travel to work sites. Caltrans work is available every day, although weekend slots are in high demand, so it’s important to arrive at the pickup site early to ensure a place in line. Failure to arrive on time may result in missing a whole day.

Freeway cleanup is generally offered as a condition of probation. The drunk driving offender is given a deadline to complete the required number of hours. If the hours are not completed on time, the offender will be in violation of probation and jail will become a serious possibility. Any DUI / DWI lawyer would warn a person to complete all programs and to not violate probation.

Caltrans is not always the most attractive alternative for a person who is convicted of driving under the influence or driving while intoxicated. However, for many people the option is better than time in jail. Caltrans can be done over time and will allow a person to live a pretty normal live in the meanwhile. Alternative sentences have been created to punish, but also provide a more productive activity than sitting in a jail cell. Oftentimes these alternative sentences help to clean up or improve a place, as well as allowing the offender to keep a job, an option that would not be available if jail was the only option.

Many California DUI / DWI attorneys recommend Caltrans work when it is available as an alternative sentence. It is not the only alternative sentence available. The court offers different options that should be considered in greater detail. Consult The Kavinoky Law Firm to find out if Caltrans freeway cleanup is an option for you.

Electronic monitoring

Marijuana related offenses, in California, typically carry severe penalties that include probation, heavy fines and jail or prison sentences. When the charged offense was a non-violent one, the accused has more options with respect to sentencing that may allow him or her to avoid incarceration. A savvy criminal defense lawyer knows that alternative sentencing may be available and knows, under what circumstances, a judge is likely to grant a request for this type of sentencing, the most compelling arguments to use, to whom this type of sentencing applies and to what offenses is it applicable. This is simply one of the reasons why it is so important to contact the skilled attorneys at The Kavinoky Law Firm, as they are well-versed in alternative sentencing options and are dedicated to helping their clients avoid a jail or prison sentence.

Electronic monitoring (also commonly referred to as “house arrest”) is an example of a type of alternative sentence. When ordered, it allows a convicted defendant to serve his or her jail or prison sentence from the comfort of his or her home. Certain non-violent offenders who have been charged with marijuana crimes may request this type of relief, but only a truly experienced attorney knows the most convincing arguments that will persuade a judge that this type of sentencing is more appropriate than incarceration.

Electronic monitoring is closely supervised, since it has the potential for abuse. The individual who has been granted this type of relief is fitted with an electronic sensor (usually an ankle-bracelet) that is linked by telephone lines to a central computer that puts out a continuous signal. Depending on the facts of the individual case, the accused may be permitted to work, attend school, shop for groceries, do laundry and perform other personal errands and will generally be permitted to attend court-ordered programs (such as Narcotics Anonymous or another type of outpatient drug rehabilitation program) and his or her court appearances, so long as it is pre-approved by the court and/or the probation department. He or she must, however, return during the set “curfew” hours. If the signal is interrupted because the accused has gone beyond his or her authorized boundaries, the central computer records the date and time of the signal’s disappearance and reappearance. If the signal interruption occurred during a time when the individual wearing the bracelet should have been at home, the violation will be checked by the probation department and the individual may be subject to arrest, a probation violation and incarceration.

Electronic monitoring is actually a request that is granted by the probation department, not the judge, but the judge does play an important role in its implementation. The judge is the one who refers the case to the probation department, so it is he or she who must first be convinced that the defendant is a good candidate for this type of alternative sentencing before he or she will even make that referral. This is why it is imperative that the accused hires an experienced criminal attorney who knows how to persuade the judge to at least submit the case to the probation department.

The exceptional attorneys at The Kavinoky Law Firm have an in-depth knowledge about all of the alternative sentencing options that are available to their clients, which allows them to present the most gripping arguments to the judge that reveal why electronic monitoring is not only appropriate for their client, but for the court system and society as well. Because of this vast knowledge, they are also available to discuss the advantages and costs of this type of sentencing with their clients, to make sure that electronic monitoring, if requested, is right for each individual client. To learn more, contact these outstanding attorneys today for a free consultation.

Alcohol Education Programs in Fresno County, California

In California, there are several levels of Alcohol Education Programs that are offered. In order to enroll in one of the programs, one must be referred, either by the court or the California Department of Motor Vehicles (DMV).

BEWARE: Completing an alcohol program may not satisfy the DMV. That is just one reason why it is critical that you consult with a California criminal defense lawyer that concentrates on DUI defense.

Driving Under the Influence programs in Fresno County, California:

D.A.T.E.
(Service Provided: First Offender, 18 Month)
1444 Fulton Street,
Fresno, California 93721
Phone: 559-268-6475; Fax: 559-268-6967

D.A.T.E.
(Service Provided: First Offender, 18 Month)
2640 Jensen Avenue,
Sanger, California 93657
Phone: 559-875-0249; Fax: 559-875-0276

Kings View Community Services
(Service Provided: First Offender, 18 Month)
4111 N. Golden State Boulevard,
Fresno, California 93722
Phone: 559-277-9880; Fax: 559-277-8998

Special Services Community Center
(Service Provided: First Offender, 18 Month)
855 West Ashlan Avenue,
Suite 101,
Clovis, California 93612
Phone: 559-348-0129; Fax: 559-348-1367

Special Services Community Center
(Service Provided: First Offender, 18 Month)
661 South Madera Avenue,
Kerman, California 93730
Phone: 559-846-8444; Fax: 559-348-1367

Special Services Community Center
(Service Provided: First Offender, 18 Month)
749 G Street,
Reedley, California 93654
Phone: 559-637-1036; Fax: 559-637-1036

» Return to Driving Under the Influence program in California, directory of service providers

Note: This list is provided for convenience and informational purposes only. We do not recommend or endorse any specific Alcohol or Drug Risk Reduction Program.

Alcohol Education Programs in Napa County, California

In California, there are several levels of Alcohol Education Programs that are offered. In order to enroll in one of the programs, one must be referred, either by the court or the California Department of Motor Vehicles (DMV).

BEWARE: Completing an alcohol program may not satisfy the DMV. That is just one reason why it is critical that you consult with a California criminal defense lawyer that concentrates on DUI defense.

Driving Under the Influence programs in Napa County, California:

Napa County DDP
(Service Provided: First Offender, 18 Month)
900 Coombs Street,
Room M16,
Napa, California 94559
Phone: 707-253-4264; Fax: 707-259-8039

» Return to Driving Under the Influence program in California, directory of service providers

Note: This list is provided for convenience and informational purposes only. We do not recommend or endorse any specific Alcohol or Drug Risk Reduction Program.

Alcohol Education Programs in Santa Cruz County, California

In California, there are several levels of Alcohol Education Programs that are offered. In order to enroll in one of the programs, one must be referred, either by the court or the California Department of Motor Vehicles (DMV).

BEWARE: Completing an alcohol program may not satisfy the DMV. That is just one reason why it is critical that you consult with a California criminal defense lawyer that concentrates on DUI defense.

Driving Under the Influence programs in Santa Cruz County, California:

Alto DDP
(Service Provided: First Offender, 18 Month)
10 Alexander Street,
Watsonville, California 95076
Phone: 831-728-2233; Fax: 831-728-0870

Alto DDP
(Service Provided: First Offender, 18 Month)
271 Water Street,
Santa Cruz, California 95060
Phone: 831-423-2003; Fax: 831-459-6504

Janus DDP
(Service Provided: First Offender, 18 Month)
200 7th Avenue,
Suite 150,
Santa Cruz, California 95062
Phone: 831-462-5267; Fax: 831-462-4970

Triad Community Services
(Service Provided: First Offender)
1000 A Emeline Avenue,
Santa Cruz, California 95060
Phone: 831-425-0112; Fax: 831-425-1847

» Return to Driving Under the Influence program in California, directory of service providers

Note: This list is provided for convenience and informational purposes only. We do not recommend or endorse any specific Alcohol or Drug Risk Reduction Program.

California Criminal Law – Motorcycling Under the Influence

In California, an individual who drives a motorcycle while intoxicated or under the influence of drugs or alcohol will face the same proceedings that a person driving a car while under the influence will face. Therefore, a motorcyclist charged with DUI will have a case with the DMV as well as criminal court case. These cases should be handled by qualified drunk driving defense lawyers.

A motorcyclist must request a DMV Administrative Per Se Hearing within 10 days of being arrested. These 10 days include weekends and holidays. If the hearing is not requested, an automatic process of license suspension will be started by the Department of Motor Vehicles. At the DMV hearing, the DUI attorney will be given an opportunity to present evidence why there was no probable cause to make the stop in the first place, as well as evidence that would call into question the results of any chemical tests. The judge will decide based on the preponderance of the evidence whether the driver had a blood alcohol content of .08 percent or greater. If the judge finds that the driver’s BAC was indeed above the legal limit of .08 percent, the driver’s license will be suspended.

In criminal court, the motorcyclist will face the same punishments that are handed down in convictions for driving a car while drunk. Those punishments include jail time, fines, alcohol education classes, and alternative sentences. A prosecutor will present evidence of the chemical test results as well as expert witnesses to explain the results of the tests to the jury.

Police officers are trained to recognize certain signs of intoxication or impairment in a motorcycle driver. If a police officer notices these signs, he or she may stop the driver of a motorcycle. The signs of intoxication are things like drifting between lanes or trouble dismounting the motorcycle. It is unfortunate that short bikers may have trouble dismounting a motorcycle even if unimpaired. There are reasons besides intoxication why a rider might drift between lanes too. It is the job of a criminal defense attorney to illustrate to a jury that there is reasonable doubt as to whether a driver was intoxicated or whether the defendant was just a novice rider who is physically maladjusted to riding motorcycles.

When an officer notices either drifting or problems with the dismount, the rule is that there is a 50 percent chance that the rider is intoxicated. Of course, on the other hand, there is a 50 percent chance that something like rough terrain, wind, or nervousness is causing the driver to drift. There is also a 50 percent chance that there is an explanation other than alcohol or drugs why a driver is having trouble dismounting a motorcycle.

Other signs that police look for in an impaired motorcycle driver are trouble balancing once the motorcycle comes to a stop, late braking patterns, and wobbling wheels when the motorcycle is going around curves or turning corners. However, there are multiple explanations for these problems that are not related to alcohol. If a DUI attorney can illustrate that alternative causes were responsible for the so-called signs of intoxication in a motorcycle driver, there is a chance that the jury will find in favor of the defendant.

Superior Court Of California, County of Imperial

If you have been arrested for Driving Under the Influence of alcohol or drugs in the state of California, it is important to know the location of the courthouse where your arraignment will be held. If there are multiple courthouses in the county, please contact a skilled California DUI / DWI defense attorney for more information.

Imperial County Superior Court
939 Main Street, El Centro, CA 92243

Brawley Courthouse
220 Main Street, Brawley, Ca 92227

Calexico Courthouse
415 East 4th Street, Calexico, Ca 92231

Winterhaven Court
2124 Winterhaven Drive, Winterhaven, Ca 92283

» Imperial County Superior Court of California website.

Getting arrested on suspicion of DUI / DWI can be a frightening experience. Suspected drunk drivers face a legal labyrinth that can seem daunting. A drunk driving case generates two separate cases – in criminal court, and at the Department of Motor Vehicles (DMV). A California attorney with experience defending drinking and driving cases can help drivers navigate through both the DMV hearing and the court case.

» Return to California Superior Courts, general information