California Defense Attorney – Opening Statements

After the jury is selected in a drunk driving trial, both the defense and the prosecution give opening statements to the jury. Opening statements are critically important to the success of a DUI / DWI defense. A skilled criminal defense attorney from The Kavinoky Law Firm will use this opportunity to allow the jury to get to know the attorney and his or her client and introduce some important defense concepts.

Because the prosecutor has the burden of proving the case, he or she is allowed to deliver the first opening statement. After the prosecutor speaks, the defense lawyer has the option of giving his or her opening statement or waiting until after the prosecution has finished presenting its case. A DUI / DWI defense lawyer often opts to give an opening statement after the prosecutor, because it reminds jurors to keep both sides in mind during the prosecutor’s case.

A good criminal defense lawyer often opts to give the jury something to keep in mind while the prosecution presents its case, but he or she cannot make any statements that can’t be delivered upon later. Therefore, it isn’t uncommon for a defense attorney to deliver a fairly generic opening statement. Often the defense lawyer will merely ask jurors to keep an open mind until they have heard all of the evidence and begin their deliberations. The defense attorney should also remind jurors that the prosecutor has the burden of proving every element of a driving under the influence case beyond a reasonable doubt in order to obtain a conviction.

It’s critical to remind jurors about these issues, because they may hold an initial belief that a driver with a chemical test that showed a blood alcohol content (BAC) of .08 percent or greater must be guilty of DUI / DWI. However, this is far from true. If the defense attorney can persuade jurors to keep an open mind and listen to every item of evidence before making a decision about the driver’s guilt, a small battle is already won.

A skilled California DUI defense lawyer will also remind jurors that the defense does not have to prove anything. The defense lawyer could rest the case without presenting any evidence at all of the defendant’s innocence, and if the prosecutor hasn’t proved every element of the driving while intoxicated case beyond a reasonable doubt, the jury must deliver a not guilty verdict.

Because it’s one of a defense attorney’s first opportunities to connect with jurors, opening arguments can be an important part of defending an accused drunk driver in court. The knowledgeable defense lawyers at The Kavinoky Law Firm have the experience needed to deliver an opening argument that will lay the foundation to a successful DUI / DWI defense.

California Criminal Defense Attorney – Should the Defendant Testify?

Both the prosecutor and the defense attorney call numerous witnesses in a California DUI / DWI trial. In fact, the defense lawyer may call the defendant to the stand to testify. Whether to ask the defendant to testify is an extremely difficult question for a drunk driving criminal defense lawyer, and the correct answer depends on the facts of the case.

In many cases, it’s useful to have the defendant explain how an injury or illness, such as emphysema, chronic acid reflux, or diabetes could have impacted the results of a chemical test. The defendant’s testimony might excuse a chemical test refusal or help explain why the driver’s blood alcohol content (BAC) reading was artificially high.

Sometimes it’s helpful to have the accused driver testify merely so that they can make a connection with the jury. Jurors are instructed that they may not interpret the fact that the defendant did not testify as a sign of guilt, but jurors are human, and sometimes cannot put their personal feelings aside. Therefore, jurors may conclude that the defendant didn’t take the stand because he or she is guilty. An experienced DUI / DWI criminal defense lawyer will weigh the risk of having the defendant testify against this possibility.

However, there are also excellent reasons to keep the accused driver off the stand. Some defendants are better off not being cross-examined by the prosecution. Some drivers might be nervous, emotional, or less than truthful on the stand. This allows the prosecutor to score points against the defense’s own witness.

In some cases it’s critical that the accused driver not testify because he or she was extremely intoxicated at the time of arrest, and may not remember many details about the encounter with police. Such a driver can derail a carefully crafted defense strategy and spell a guilty verdict for the defendant.

Experienced California DUI / DWI defense lawyers know when to have defendants testify and when they shouldn’t. In cases where it’s a good idea to have the driver take the stand, a skilled defense attorney will prepare that testimony carefully and thoroughly, to help the defendant avoid mistakes and anticipate any attacks from the prosecution on cross-examination.

Under the Influence of Drugs

Under California Health and Safety Code section 11550, it’s against the law to be under the influence of a controlled substance such as heroin, cocaine, methamphetamine or Ecstasy. It’s also illegal to be under the influence of prescription narcotics classified as Schedule III, IV or V unless they’re taken with a valid prescription.

A skilled California drug lawyer from The Kavinoky Law Firm will do everything possible to fight your under the influence of drugs case as well as any other criminal charges you face.

A violation of California H&S 1150 is a misdemeanor punishable by 90 days to one year in jail. However, if you meet certain qualifications, you may be eligible for alternative sentencing such as a deferred entry of judgment (DEJ), Prop. 36, or drug court.

If you are eligible for diversion and successfully complete the program, you can put the incident behind you without having a criminal record. Defendants completing California drug diversion are typically required to attend 12-step meetings, classes and/or counseling sessions, take periodic drug tests, and complete all requirements laid out by the court.

If you’re facing a California under the influence of drugs or narcotics charge, it’s in your best interests to aggressively fight the charges. Experienced California criminal defnese lawyers from The Kavinoky Law Firm will fight to protect your reputation and your freedom. Please contact a knowledgeable California drug lawyer today at 1.800.NO.CUFFS for a free consultation or fill out the following form to receive a Free Drug Case Evaluation.

California Vehicle Code VC 13351.85 – Towing Service: Required Suspension

13351.85. Upon receipt of a duly certified abstract of any court showing that a person has been convicted of a violation of Section 12110, the department shall suspend that person’s driving privilege for four months if the conviction was a first conviction, and for one year, if the conviction was a second or subsequent conviction of a violation of that section that occurred within seven years of the current conviction.

Added Sec. 2, Ch. 641, Stats. 2000. Effective January 1, 2001.

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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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California Vehicle Code VC 13353.8 – Restricted License: Persons Under 21

13353.8. (a) After the department has issued an order suspending or delaying driving privileges as a result of a violation of subdivision (a) of Section 23136, the department, upon the petition of the person affected, may review the order and may impose restrictions on the person’s privilege to drive based upon a showing of a critical need to drive , if the department determines that, within 10 years of the current violation of Section 23136, the person has not violated Section 23136 or been convicted of a separate violation of Section 23140, 23152, or 23153, or of Section 23103, with a plea of guilty under Section 23103.5, or of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, and that the person’s driving privilege has not been suspended or revoked under Section 13353, 13353.1, or 13353.2 within that 10-year period.

(b) For purposes of this section, a conviction of an offense in a state, territory, or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or the Dominion of Canada that, if committed in this state, would be a violation of Section 23103, as specified in Section 23103.5, or Section 23140, 23152, 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 Code or Penal Code.

(c) As used in this section, "critical need to drive" means the circumstances that are required to be shown for the issuance of a junior permit pursuant to Section 12513.

(d) The restriction shall be imposed not earlier than the 31st day after the date the order of suspension became effective and shall remain in effect for the balance of the period of suspension or restriction in this section.

Amended Sec. 1, Ch. 254, Stats. 2003. Effective January 1, 2004.
Amended Sec. 10, 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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California Vehicle Code VC 13369 – Refusal to Issue or Renew, Suspension, or Revocation of Certificate or Endorsement

13369. (a) This section applies to the following endorsements and certificates:

1. Passenger transportation vehicle.
2. Hazardous materials.
3. Schoolbus.
4. School pupil activity bus.
5. Youth bus.
6. General public paratransit vehicle.
7. Farm labor vehicle.
8. Vehicle used for the transportation of developmentally disabled persons.

(b) The department shall refuse to issue or renew, or shall revoke the certificate or endorsement of any person who meets the following conditions:

1. (1) Within ( )1 three years, has committed any violation that results in a conviction assigned a violation point count of two or more, as defined in Sections 12810 and 12810.5. The department may not refuse to issue or renew, nor may it revoke, a person’s hazardous materials or passenger transportation vehicle endorsement if the violation leading to the conviction occurred in the person’s private vehicle and not in a commercial motor vehicle, as defined in Section 15210.
2. (2) Within ( )1 three years, has had his or her driving privilege suspended, revoked, or on probation for any reason involving unsafe operation of a motor vehicle. The department may not refuse to issue or renew, nor may it revoke, a person’s passenger transportation vehicle endorsement if the person’s driving privilege has, within ( )1 three years, been placed on probation only for any reason involving unsafe operation of a motor vehicle.
3. (3) Notwithstanding paragraphs (1) and (2), does not meet the qualifications for issuance of a hazardous materials endorsement set forth in Parts 383, 384, and 1572 of Title 49 of the Code of Federal Regulations.

(c) The department may refuse to issue or renew, or may suspend or revoke the certificate or endorsement of any person who meets any of the following conditions:

1. Within ( )1 12 months, has been involved as a driver in three accidents in which the driver caused or contributed to the causes of the accidents.
2. Within ( )1 24 months, as a driver, caused or contributed to the cause of an accident resulting in a fatality or serious injury or serious property damage in excess of seven hundred fifty dollars ($750).
3. Has violated any provision of this code, or any rule or regulation pertaining to the safe operation of a vehicle for which the certificate or endorsement was issued.
4. Has violated any restriction of the certificate, endorsement, or commercial driver’s license.
5. Has knowingly made a false statement or ( )2 failed to disclose a material fact on an application for a certificate or endorsement.
6. Has been determined by the department to be a negligent or incompetent operator.
7. Has demonstrated irrational behavior to the extent that a reasonable and prudent person would have reasonable cause to believe that the applicant’s ability to perform the duties of a driver may be impaired.
8. Excessively or habitually uses, or is addicted to, alcoholic beverages, narcotics, or dangerous drugs.
9. Does not meet the minimum medical standards established or approved by the department.

(d) The department may cancel the certificate or endorsement of any driver who meets any of the following conditions:

1. Does not have a valid driver’s license of the appropriate class.
2. Has requested cancellation of the certificate or endorsement.
3. Has failed to meet any of the requirements for issuance or retention of the certificate or endorsement, including, but not limited to, payment of the proper fee, submission of an acceptable medical report and fingerprint cards, and ( )3 compliance with prescribed training requirements.
4. Has had his or her driving privilege suspended or revoked for a cause involving other than the safe operation of a motor vehicle.

(e) ( )4 (1) Reapplication following ( )5 refusal or revocation under subdivision (b) or (c) may be made after a period of not less than one year from the effective date of denial or revocation, except in cases where a longer period of suspension or revocation is required by law.

(2) Reapplication following cancellation under subdivision ( )6 (d) may be made at any time without prejudice. ( )7

Added Sec. 12.5, Ch. 952, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.
Amended Sec. 1, 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 prededing"
2. "concealed"
3. "has failed to meet"
4. "With regard to a violation, accident, or departmental action that occurred prior to January 1, 1991, subdivision (a) and paragraphs (1), (2), and (3) of subdivision (b) do not apply to a driver holding a valid passenger transport or hazardous materials endorsement, or a valid class 1 or class 2 driver’s license who is applying to convert that driver’s license to a class A or class B driver’s license with a passenger transport or hazardous materials endorsement, if the driver submits proof that he or she is currently employed operating vehicles requiring the endorsement, or a valid class 3 driver’s license who is applying for a class C driver’s license with a hazardous materials endorsement if the driver submits proof that he or she is currently employed operating vehicles requiring the endorsement.

(f) Subdivision (e) does not apply to drivers applying for a schoolbus, school pupil activity bus, youth bus, general public paratransit vehicle, or farm labor vehicle certificate.
(g) "

1. "denial"
2. "(e)"
3. "(h) This section shall become operative on September 20, 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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California Vehicle Code VC 23576 – Exception for Operation of Vehicle

23576. (a) Notwithstanding Section 23575, if a person is required to operate a motor vehicle in the course and scope of his or her employment and if the vehicle is owned by the employer, the person may operate that vehicle without installation of an approved ignition interlock device if the employer has been notified by the person that the person’s driving privilege has been restricted pursuant to Section 23575 and if the person has proof of that notification in his or her possession, or if the notice, or a facsimile copy thereof, is with the vehicle.

(b) A motor vehicle owned by a business entity that is all or partly owned or controlled by a person otherwise subject to Section 23575, is not a motor vehicle owned by the employer subject to the exemption in subdivision (a).

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 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.
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California Vehicle Code VC 23554 – Penalties: First Conviction

23554. If any person is convicted of a first violation of Section 23153, that person shall be punished by imprisonment in the state prison, or in a 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 of Motor Vehicles pursuant to paragraph (2) 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.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 28, Ch. 545, Stats. 2002. Effective January 1, 2003.

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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 23226 – Storage of Opened Container in Passenger Compartment

23226. (a) It is unlawful for any driver to keep in the passenger compartment of a motor vehicle, when the vehicle is upon any highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened, or a seal broken, or the contents of which have been partially removed.

(b) It is unlawful for any passenger to keep in the passenger compartment of a motor vehicle, when the vehicle is upon any highway or on lands, as described in subdivision (b) of Section 23220, any bottle, can, or other receptacle containing any alcoholic beverage that has been opened or a seal broken, or the contents of which have been partially removed.

(c) This section shall not apply to the living quarters of a housecar or camper.

Amended Sec. 5, Ch. 384, Stats. 1998. Effective August 24, 1998.
Amended Sec. 5, Ch. 723, Stats. 1999. Effective January 1, 2000.

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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 23135 – Operation of Modified Motorized Bicycle

23135. It is unlawful for any person to operate upon a highway any vehicle which was originally manufactured as a motorized bicycle, as defined in Section 406, and which has been modified in such a manner that it no longer conforms to the definition of a motorized bicycle.

Added Ch. 421, Stats. 1978. Effective January 1, 1979.

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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.