Category: Weapons Offenses

Weapons Offenses | No Cuffs

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

Posted by on May 4, 2012

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.

Added Sec. 17.5, Ch. 551, Stats. 2004. Effective January 1, 2005. Operative 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 23216 – Legislative Intent

Posted by on May 4, 2012

California Vehicle Code VC 23216 – Legislative Intent

23216. (a) The provisions of Sections 2, 6, 7, and 10 expressly apply to the provisions of this article, and, further, for any recidivist or enhancement purpose, reference to an offense by section number is a reference to the provisions contained in that section, insofar as they were renumbered by Chapter 940 of the Statutes of 1981 without substantive change, and those provisions shall be construed as restatements and continuations thereof and not as new enactments.

(b) Any reference in the provisions of this code to a separate violation of Section 23152 shall include a separate offense under Section 23102 or 23105, as those sections read prior to January 1, 1982.

(c) Any reference in the provisions of the Vehicle Code to a separate violation of Section 23153 shall include a separate offense under Section 23101 or 23106 as those sections read prior to January 1, 1982.

(d) The provisions of this section are to be given retroactive effect.

Added Ch. 1205, Stats. 1984. Effective January 1, 1985.

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California Vehicle Code VC 23115 – Rubbish Vehicles

Posted by on May 4, 2012

California Vehicle Code VC 23115 – Rubbish Vehicles

23115. (a) No vehicle transporting garbage, swill, used cans or bottles, wastepapers, waste cardboard, ashes, refuse, trash, or rubbish, or any noisome, nauseous, or offensive matter, or anything being transported for disposal or recycling shall be driven or moved upon any highway unless the load is totally covered in a manner that will prevent the load or any part of the load from spilling or falling from the vehicle.

(b) Subdivision (a) does not prohibit a rubbish vehicle from being without cover while in the process of acquiring its load if no law, administrative regulation, or local ordinance requires that it be covered in those circumstances.

(c) Vehicles transporting wastepaper, waste cardboard, or used cans or bottles, are in compliance with subdivision (a) if appropriate binders including, but not limited to, bands, wires, straps, or netting are used to prevent the load, or any part of the load, from spilling or falling from the vehicle.

(d) This section does not apply to any vehicle engaged in transporting wet waste fruit or vegetable matter, or waste products to or from a food processing establishment.

Amended Sec. 1, Ch. 279, Stats. 2001. Effective January 1, 2002.

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California Vehicle Code VC 21208 – Permitted Movements from Bicycle Lanes

Posted by on May 4, 2012

California Vehicle Code VC 21208 – Permitted Movements from Bicycle Lanes

21208. (a) Whenever a bicycle lane has been established on a roadway pursuant to Section 21207, any person operating a bicycle upon the roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride within the bicycle lane, except that the person may move out of the lane under any of the following situations:

When overtaking and passing another bicycle, vehicle, or pedestrian within the lane or about to enter the lane if the overtaking and passing cannot be done safely within the lane.
When preparing for a left turn at an intersection or into a private road or driveway.
When reasonably necessary to leave the bicycle lane to avoid debris or other hazardous conditions.
When approaching a place where a right turn is authorized.

(b) No person operating a bicycle shall leave a bicycle lane until the movement can be made with reasonable safety and then only after giving an appropriate signal in the manner provided in Chapter 6 (commencing with Section 22100) in the event that any vehicle may be affected by the movement.

Amended Sec. 5, Ch. 674, Stats. 1996. Effective January 1, 1997.

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California Drug Cases Attorney

Posted by on May 4, 2012

California Drug Cases Attorney

If you’ve been arrested on a California drug charge, you’re certainly not alone – more and more Americans are ensnared in our nation’s failed “War on Drugs” every year. Local, state and federal governments continue to pour billions of dollars into this failed war year after year at the expense of individuals like you.

Fortunately, it’s possible to mount an aggressive defense to a California drug charge with the help of a defense lawyer specifically skilled in drug law. An experienced California drug crime attorney from The Kavinoky Law Firm can thoroughly analyze your case and determine the most effective strategy to challenge the case against you.

Whether your California drug charge is possession, sales or any other charge involving methamphetamine, powder cocaine, crack or base cocaine, heroin, marijuana, or PCP, it’s possible to mount a strong defense with the help of the right defense lawyer. An experienced California drug defense lawyer from The Kavinoky Law Firm has the skills and knowledge needed to aggressively fight any felony drug charges.

California defense attorney Darren Kavinoky and the knowledgeable attorneys of The Kavinoky Law Firm are well-versed in every aspect of fighting drug charges, and will thoroughly review the evidence in your drug case and develop a cutting-edge strategy to fight the charges.

A California drug conviction carries extremely harsh punishment that often includes fines, asset forfeiture, registration as a narcotics offender and jail or prison time, so it’s essential that you act decisively by assembling a strong defense team.

Some California drug cases should be taken to trial, while others may be favorably resolved with a skillfully negotiated plea bargain that may result in alternative sentencing. Some forms of alternative sentencing that may be available to help you avoid incarceration in a California drug case include deferred entry of judgment (DEJ), Proposition 36, and drug court.

A California drug charge can negatively impact every part of your life, but fortunately you can aggressively fight your case with the help of a skilled attorney. To learn more about strong defenses to felony drug charges, California drug offenders, please contact an experienced California defense attorney from The Kavinoky Law Firm today at 1.800.NO.CUFFS for a free consultation. Serving all of Los Angeles County, Orange County, San Luis Obispo and Ventura Counties and Riverside and San Diego Counties.

Drunk Driving as an Element of a California DUI / DWI Case

Posted by Brianna Wilkins on May 4, 2012

Drunk Driving as an Element of a California DUI / DWI Case

In the American system of justice, the defendant is supposed to be considered to be innocent until they have been proven guilty in a court of law. This requires that a jury of one’s peers find that the prosecutor has proven all elements of a particular case beyond a reasonable doubt. In DUI / DWI cases, as in all criminal court cases, the burden of proof is on the prosecution. The standard of requiring a prosecutor to prove guilt beyond a reasonable doubt applies in DUI / DWI cases and in all criminal cases in California. Often it is difficult for the state to achieve this very high standard when faced by an able DUI / DWI attorney who has what it takes to make it difficult for the prosecutor to prove each and every element of the charges beyond a reasonable doubt.

The driving element might seem like an area where there is very little to question, but that is not the case. Many times a police officer will find an individual asleep behind the steering wheel on the side of the road. What then? Was the person driving recently and how would we know?

In a California DUI / DWI criminal trial, a prosecutor must prove the element of driving as well as all other elements beyond a reasonable doubt. Reasonable doubt is the highest standard of proof used in all criminal trials in the United States. The prosecutor can use circumstantial evidence such as a hot or warm engine or keys in the ignition to try to prove to a jury that the individual was in fact driving the car. Circumstantial evidence are those factors that do not alone amount to guilt, but if considered together, may establish guilt. However, an experienced DUI / DWI defense attorney will be prepared to cast doubt upon the case of the prosecution by challenging the possible flaws in the evidence. If the jury finds the evidence flawed, under the reasonable doubt standard, they must return a verdict of not guilty.

Remember, in order to obtain a conviction in a drinking and driving case, a prosecutor must prove each element of the offense. A defense attorney with experience in drunk driving cases will know how to attack both direct and circumstantial evidence of the “driving” element of DUI / DWI.

The driving element is good example of the very nuanced differences that exists between the California criminal case and the California DMV hearing and a good example of why it is important to hire an experienced DUI / DWI attorney who won’t miss the differences. While circumstantial evidence is admissible in a California criminal court hearing, it is not admissible at the DMV hearing. Therefore, a police officer must actually have witnessed a person driving the vehicle in order for the evidence to be heard by a judge at the administrative DMV hearing. Circumstantial evidence that the police officer might have witnessed will not be considered but the official in charge of the DMV hearing.

Superior Court Of California, County of Marin

Posted by Brianna Wilkins on May 4, 2012

Superior Court Of California, County of Marin

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.

Marin County Superior Court
3501 Civic Center Drive, San Rafael, CA 94903

» Marin 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.

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Special Considerations

Posted by Brianna Wilkins on May 4, 2012

Special Considerations for FAA License Holders

The FAA has set standards that require anyone who holds a pilot’s license issued by the Federal Aviation Administration (FAA) and is arrested for driving under the influence of alcohol or drugs, or driving while intoxicated is required to report any criminal conviction or DMV administrative action to the FAA within 60 days.

The FAA has listed the actions that must be reported within 60 days as follows:

DUI / DWI court conviction
Revocation, suspension, cancellation or restriction of driving privileges
Administrative Per Se orders
10-day civil revocations
Express consent revocation/suspension of driving privileges

The only way to avoid making a report to the FAA is to avoid a drunk driving conviction altogether. Any Department of Motor Vehicles action must be reported and every conviction must be reported. Therefore, even if a person pleads guilty to a lesser charge, in most cases that will be a conviction that requires reporting. An experienced criminal defense attorney will be required to aggressively defend the client both at the DMV hearing and the criminal court case when drunk driving is involved.

Upon notification of a driving under the influence court conviction or the results from the DMV hearing, it is probable that the Federal Aviation Administration will require the pilot to submit to a substance abuse or psychiatric evaluation. The results of the evaluation will determine whether the FAA will require a license-holder to enroll in a substance abuse treatment program, submit to close monitoring by the FAA, or take random drug or alcohol tests, or possibly a combination of the three penalties described..

Though a pilot will undergo an evaluation and possibly face other remedial punishments, typically, reporting a DUI / DWI conviction or driver’s license suspension to the FAA will not result in a revocation of a pilot’s license. However, if a pilot fails to report these actions in a timely manner, the FAA may move to suspend a pilot’s license or refuse to renew it when it expires.

Not all FAA license-holders fall within these reporting requirements. FAA license-holders who are not required to submit a medical certificate, such as aviation mechanics, are not required to report actions that stem from a drunk driving arrest.

To comply with the reporting requirement, simply send a notification letter to the FAA’s Security and Investigations Division within 60 calendar days of the effective date of a drunk driving court conviction or the DMV hearing resulting from a driving under the influence arrest. Any questions in this regard may be handled by a California DUI / DWI criminal defense attorney.

Federal Aviation Administration
Security and Investigations Division (AMC-700)
P.O. Box 25810
Oklahoma City, OK 73125

California Vehicle Code VC 13353.2 – Immediate Suspension

Posted by on May 4, 2012

California Vehicle Code VC 13353.2 – Immediate Suspension

13353.2. (a) The department shall immediately suspend the privilege of any person to operate a motor vehicle for any one of the following reasons:

The person was driving a motor vehicle when the person had 0.08 percent or more, by weight, of alcohol in his or her blood.
The person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.

(b) The notice of the order of suspension under this section shall be served on the person by a peace officer pursuant to Section 13388 or 13382. The notice of the order of suspension shall be on a form provided by the department. If the notice of the order of suspension has not been served upon the person by the peace officer pursuant to Section 13388 or 13382, upon the receipt of the report of a peace officer submitted pursuant to Section 13380, the department shall mail written notice of the order of the suspension to the person at the last known address shown on the department’s records and, if the address of the person provided by the peace officer’s report differs from the address of record, to that address.

(c) The notice of the order of suspension shall clearly specify the reason and statutory grounds for the suspension, the effective date of the suspension, the right of the person to request an administrative hearing, the procedure for requesting an administrative hearing, and the date by which a request for an administrative hearing shall be made in order to receive a determination prior to the effective date of the suspension.

(d) The department shall make a determination of the facts in subdivision (a) on the basis of the report of a peace officer submitted pursuant to Section 13380. The determination of the facts, after administrative review pursuant to Section 13557, by the department is final, unless an administrative hearing is held pursuant to Section 13558 and any judicial review of the administrative determination after the hearing pursuant to Section 13559 is final.

(e) The determination of the facts in subdivision (a) is a civil matter which is independent of the determination of the person’s guilt or innocence, shall have no collateral estoppel effect on a subsequent criminal prosecution, and shall not preclude the litigation of the same or similar facts in the criminal proceeding. If a person is acquitted of criminal charges relating to a determination of facts under subdivision (a), or if the person’s driver’s license was suspended pursuant to Section 13388 and the department finds no basis for a suspension pursuant to that section, the department shall immediately reinstate the person’s privilege to operate a motor vehicle if the department has suspended it administratively pursuant to subdivision (a), and the department shall return or reissue for the remaining term any driver’s license which has been taken from the person pursuant to Section 13382 or otherwise. Notwithstanding subdivision (b) of Section 13558, if criminal charges under Section 23140, 23152, or 23153 are not filed by the district attorney because of a lack of evidence, or if those charges are filed but are subsequently dismissed by the court because of an insufficiency of evidence, the person has a renewed right to request an administrative hearing before the department. The request for a hearing shall be made within one year from the date of arrest.

(f) The department shall furnish a form that requires a detailed explanation specifying which evidence was defective or lacking and detailing why that evidence was defective or lacking. The form shall be made available to the person to provide to the district attorney. The department shall hold an administrative hearing, and the hearing officer shall consider the reasons for the failure to prosecute given by the district attorney on the form provided by the department. If applicable, the hearing officer shall consider the reasons stated on the record by a judge who dismisses the charges. No fee shall be imposed pursuant to Section 14905 for the return or reissuing of a driver’s license pursuant to this subdivision. The disposition of a suspension action under this section does not affect any action to suspend or revoke the person’s privilege to operate a motor vehicle under any other provision of this code, including, but not limited to, Section 13352 or 13353, or Chapter 3 (commencing with Section 13800).

Amended Ch. 1281, Stats. 1992. Effective January 1, 1993.
Amended Ch. 1244, Stats. 1993. Effective January 1, 1994.
Amended Ch. 938, Stats. 1994. Effective September 28, 1994.
Amended Sec. 3.12, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 14, Ch. 22, Stats. 1999. Effective May 26, 1999. Operative July 1, 1999.

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California Vehicle Code VC 13364 – Dishonored Checks

Posted by on May 4, 2012

California Vehicle Code VC 13364 – Dishonored Checks

13364.(a) Notwithstanding any other provision of this code, a person’s privilege to operate a motor vehicle shall be suspended upon notification by a bank or financial institution that a check has been dishonored when that check was presented to the department for either of the following reasons:

In payment of a fine that resulted from an outstanding violation pursuant to Section 40508 or a suspension pursuant to Section 13365.
In payment of a fee or penalty owed by the person, if the fee or penalty is required by this code for the issuance, reissuance, or return of the person’s driver’s license after suspension, revocation, or restriction of the driving privilege.

(b) The suspension shall remain in effect until payment of all fines, fees, and penalties is made to the department or to the court, as appropriate, and the person’s driving record does not contain any notification of a court order issued pursuant to subdivision (a) of Section 42003 or of a violation of subdivision (a) or (b) of Section 40508.

(c) No suspension imposed pursuant to this section shall become effective until 30 days after the mailing of a written notice of the intent to suspend.

(d) The written notice of a suspension imposed pursuant to this section shall be delivered by certified mail.

(e) If any personal check is offered in payment of fines described in paragraph (1) of subdivision (a) and is returned for any reason, the related notice issued pursuant to Section 40509 or 40509.5 shall be restored to the person’s record.

(f) Notwithstanding any other provision of law, any license that has been suspended pursuant to this section shall immediately be reinstated, and the fees and penalties waived, upon the submission of proof acceptable to the department that the check has been erroneously dishonored by the bank or financial institution.

Added Ch. 845, Stats. 1993. Effective January 1, 1994.
Amended Sec. 56, Ch. 877, Stats. 1998. Effective January 1, 1999.

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