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California Vehicle Code VC 23576 – Exception for Operation of Vehicle

Posted by on May 4, 2012

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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California Vehicle Code VC 23554 – Penalties: First Conviction

Posted by on May 4, 2012

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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California Vehicle Code VC 23226 – Storage of Opened Container in Passenger Compartment

Posted by on May 4, 2012

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.

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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California Vehicle Code VC 23135 – Operation of Modified Motorized Bicycle

Posted by on May 4, 2012

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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California Vehicle Code VC 23109 – Speed Contests

Posted by on May 4, 2012

California Vehicle Code VC 23109 – Speed Contests

23109. (a) A person shall not engage in a motor vehicle speed contest on a highway. As used in this section, a motor vehicle speed contest includes a motor vehicle race against another vehicle, a clock, or other timing device. For purposes of this section, an event in which the time to cover a prescribed route of more than 20 miles is measured, but where the vehicle does not exceed the speed limits, is not a speed contest.

(b) A person shall not aid or abet in any motor vehicle speed contest on any highway.

(c) A person shall not engage in any motor vehicle exhibition of speed on a highway, and no person shall aid or abet in a motor vehicle exhibition of speed on any highway.

(d) A person shall not for the purpose of facilitating or aiding or as an incident to any motor vehicle speed contest or exhibition upon a highway in any manner obstruct or place a barricade or obstruction or assist or participate in placing a barricade or obstruction upon any highway.

(e) (1) A person convicted of a violation of subdivision (a) shall be punished by imprisonment in a county jail for not less than 24 hours nor more than 90 days or by a fine of not less than three hundred fifty-five dollars ($355) nor more than one thousand dollars ($1,000), or by both that fine and imprisonment. That person shall also be required to perform 40 hours of community service. The court may order the privilege to operate a motor vehicle suspended for 90 days to six months, as provided in paragraph (8) of subdivision (a) of Section 13352. The person’s privilege to operate a motor vehicle may be restricted for 90 days to six months to necessary travel to and from that person’s place of employment and, if driving a motor vehicle is necessary to perform the duties of the person’s employment, restricted to driving in that person’s scope of employment. This subdivision does not interfere with the court’s power to grant probation in a suitable case.

(2) If a person is convicted of a violation of subdivision (a) and that violation proximately causes bodily injury to a person other than the driver, the person convicted is punishable by imprisonment in a county jail for not less than 30 days nor more than six months or by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or by both the fine and imprisonment.

(f) (1) If a person is convicted of a violation of subdivision (a) for an offense that occurred within five years of the date of a prior offense that resulted in a conviction of a violation of subdivision (a), that person shall be punished by imprisonment in a county jail for not less than four days nor more than six months, and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).

(2) If the perpetration of the most recent offense within the five-year period described in paragraph (1) proximately causes bodily injury to a person other than the driver, a person convicted of that second violation shall be imprisoned in a county jail for not less than 30 days nor more than six months and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).

(3) If the perpetration of the most recent offense within the five-year period described in paragraph (1) proximately causes serious bodily injury, as defined in paragraph (4) of subdivision (f) of Section 243 of the Penal Code, to a person other than the driver, a person convicted of that second violation shall be imprisoned in the state prison, or in a county jail for not less than 30 days nor more than one year, and by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000).

(4) The court shall order the privilege of a person convicted under paragraph (1), (2), or (3), to operate a motor vehicle suspended for a period of six months, as provided in paragraph (9) of subdivision (a) of Section 13352. In lieu of the suspension, the person’s privilege to operate a motor vehicle may be restricted for six months to necessary travel to and from that person’s place of employment and, if driving a motor vehicle is necessary to perform the duties of the person’s employment, restricted to driving in that person’s scope of employment. This subdivision does not interfere with the court’s power to grant probation in a suitable case.

(g) If the court grants probation to any person punishable under subdivision (f), in addition to the provisions of subdivision (f) and any other terms and conditions imposed by the court, which may include a fine, the court shall impose as a condition of probation that the person be confined in a county jail for not less than 48 hours nor more than six months. The court shall order the person’s privilege to operate a motor vehicleto be suspended for a period of six months, as provided in paragraph (9) of subdivision (a) of Section 13352 or restricted pursuant to subdivision (f).

(h) If a person is convicted of a violation of subdivision (a) and the vehicle used in the violation is registered to that person, the vehicle may be impounded at the registered owner’s expense for not less than one day nor more than 30 days.

(i) Any person who violates subdivision (b), (c), or (d) of this section shall upon conviction thereof be punished by imprisonment in a county jail for not more than 90 days or by a fine of not more than five hundred dollars ($500) or by both that fine and imprisonment.

(j) If a person’s privilege to operate a motor vehicle is restricted by a court pursuant to this section, the court shall clearly mark the restriction and the dates of the restriction on that person’s driver’s license and promptly notify the Department of Motor Vehicles of the terms of the restriction in a manner prescribed by the department. The Department of Motor Vehicles shall place that restriction in the person’s records in the Department of Motor Vehicles and enter the restriction on any license subsequently issued by the Department of Motor Vehicles to that person during the period of the restriction.

(k) The court may order that any person convicted under this section, who is to be punished by imprisonment in a county jail, be imprisoned on days other than days of regular employment of the person, as determined by the court.

(l) This section shall be known and may be cited as the Louis Friend Memorial Act.

Amended Sec. 2, Ch. 595, Stats. 2004. Effective January 1, 2005.
Amended Sec. 1, Ch. 475, Stats. 2005. Effective January 1, 2006.
The 2005 amendment added the italicized material.

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California Vehicle Code VC 21201.5 – Reflectorized Equipment

Posted by on May 4, 2012

California Vehicle Code VC 21201.5 – Reflectorized Equipment

21201.5. (a) No person shall sell, or offer for sale, a reflex reflector or reflectorized tire of a type required on a bicycle unless it meets requirements established by the department. If there exists a federal Consumer Product Safety Commission regulation applicable to bicycle reflectors, the provisions of that regulation shall prevail over provisions of this code or requirements established by the department pursuant to this code relative to bicycle reflectors.

(b) No person shall sell, or offer for sale, a new bicycle that is not equipped with a red reflector on the rear, a white or yellow reflector on each pedal visible from the front and rear of the bicycle, a white or yellow reflector on each side forward of the center of the bicycle, and a white or red reflector on each side to the rear of the center of the bicycle, except that bicycles which are equipped with reflectorized tires on the front and rear need not be equipped with these side reflectors.

Amended Ch. 399, Stats. 1980. Effective July 11, 1980 by terms of an urgency clause.

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California Criminal Defense Attorney – Sentencing Enhancements

Posted by on May 4, 2012

California Criminal Defense Attorney – Sentencing Enhancements

Drivers convicted of DUI / DWI face repercussions from the court that include jail time, fines, mandatory education programs, and probation. Certain factors known as sentencing enhancements can substantially increase the court’s punishment in a drunk driving case, including speeding, driving drunk with children in the car, or being involved in an accident. Consulting with an experienced California DUI / DWI attorney from the Kavinoky Law Firm may help mitigate these factors.

Sentencing enhancements can add to nearly every aspect of court punishment, resulting in longer jail sentences, higher fines, longer driver’s license suspensions, greater mandatory education requirements, and more restrictive probation.

These enhancements typically are included when charges are originally filed; however, they may be added at a later date as long as the case is still pending, and the enhancements would not unfairly endanger the defendant’s right to a fair trial. The additional allegations, like the underlying DUI charge, must be proven by the prosecutor or the sentence cannot be enhanced.

One of the most common enhancements added in a drunk driving case is speeding. A driver who is alleged to have been traveling 30 mph or more over the freeway speed limit or 20 mph or more over the speed limit on a surface street or highway likely will face this allegation.

Some prosecutors who allege speeding also may add an enhancement of reckless driving. If both allegations are found to be true, the motorist faces 60 days in jail in addition to any other punishment handed out. However, if the prosecutor alleges reckless driving, he or she must prove that the driver had willful or wanton disregard for the safety of people or property, and wasn’t merely driving too fast.

Another enhancement is the allegation that there were children in the car at the time the driver was stopped and arrested for DUI / DWI. If there were children under the age of 14 in the vehicle at the time of the stop, the driver risks a sentencing enhancement and/or a child endangerment charge.

If proven, the allegation of driving drunk with children in the car brings additional jail time – 48 hours for a first offense of this nature, 10 days for a second offense, 30 days for a third offense, and 90 days for a fourth offense. This additional jail time is mandatory if the facts establishing child endangerment are proven.

Another sentencing enhancement can be added if a traffic accident occurred. If the accident resulted in injury to someone other than the driver, the DUI likely will be charged as a felony. If the sentencing enhancement of being involved in an accident is proven in conjunction with a felony DUI / DWI conviction, the driver faces an additional 90 days to one year in jail.

Sentencing enhancements can also be added for a number of other factors, including prior DUIs or “wet-reckless” convictions, or drunk driving offenses that involve a death or multiple victims. If proven, each allegation carries substantial penalties.

Because some prosecutors “pile on” sentencing enhancements in DUI / DWI cases, it’s imperative to defend each case aggressively to avoid additional penalties. A California lawyer skilled at defending drunk driving cases can evaluate each case to determine the best strategy to fight sentencing enhancements along with the underlying charge of drinking and driving.

Evidential Breath Testing

Posted by Brianna Wilkins on May 4, 2012

Drivers arrested on suspicion of DUI / DWI in California are offered the choice of an evidential breath test or a blood test. When motorists are arrested for DUID – driving under the influence of drugs, they will be offered a choice of a blood or a urine test. Many drivers choose the evidential breath test, and then fear that a drunk driving conviction is inevitable when the test shows a blood alcohol content (BAC) above the legal limit. Luckily, breath tests that show a BAC of .08 percent or greater can be successfully challenged by a skilled defense attorney. The experienced DUI / DWI lawyers at The Kavinoky Law Firm can effectively attack breath test results in a drinking and driving case.

Breath machines used in California drunk driving investigations vary from jurisdiction to jurisdiction. The equipment used includes the E-PAS – a hand-held unit that is often administered roadside – or a variety of stationhouse breath-testing machines, such as the Intoxilyzer 5000, the EC/IR, the Draeger, the BAC Datamaster, and many more.

Regardless of the type of machine used, all breath testing in drinking and driving cases is an indirect measurement of BAC. Breath testing devices produce an estimate of BAC through a conversion process, whereby a blood alcohol level is predicted on the basis of certain scientific assumptions, which may or may not be applicable to the person being tested. These scientific assumptions include drivers’ blood/breath partition ratio, their breath temperature, and many other factors.

Since breath testing in DUI / DWI investigations always occurs sometime after the accused motorist was actually behind the wheel, which is the relevant time in a drunk driving case, the number only becomes meaningful through a process called retrograde extrapolation. Retrograde extrapolation is an attempt to look backward and give an opinion about the driver’s alcohol level at the earlier time of driving based upon the later breath test results.

This type of speculation is rife with problems. Alcohol levels change over time, and the amount of change depends on many difficult to predict factors. Stomach contents, body weight, gender, the amount of alcohol consumed, the length of the drinking period, elimination or “burn-off” rate, and other personal metabolic factors all interfere with retrograde extrapolation in a DUI / DWI investigation.

For retrograde extrapolation to be accurate, the expert must assume that the accused drunk driver is in the “post-absorptive” phase – an assumption not always true, since the absorptive phase can last for two hours or more.

Breath test devices in DUI / DWI cases are of one of two types – infrared breath testing machines or fuel cell machines. When using the infrared device, the subject blows into a collection tube. Light passes from one end of the tube to the other, and the machine measures the amount of light beam that is diminished as it passes from one side to the other in the light spectrum of the alcohol molecule.

The fuel cell device testing machine measures the amount of oxidation that occurs on an electromagnetic chip, and then the amount of the electrical charge is converted to a number, which is supposed to represent the driver’s BAC. Both methods of DUI / DWI breath testing are subject to many challenges, and a drunk driving criminal defense lawyer knows how to effectively question these results.

Some defenses acknowledge that the BAC reading is correct, but challenge whether the driver was under the influence of alcohol or exceeded the legal limit at the time of driving. Other defense strategies challenge the accuracy of the breath test result itself. A criminal defense drunk driving attorney will typically explore both avenues on behalf of his or her DUI / DWI client.

An experienced DUI / DWI defense attorney always questions the functioning of the breath test machine. Whether the machine is an Intoxilyzer 3000, Intoxilyzer 5000, Intoxilyzer 8000, EC/IR I or EC/IR II, a Draeger or a BAC Datamaster, the machine must be working properly to give a reliable result. This means ensuring that the calibration records, usage logs and maintenance history are all properly documented and don’t reveal any problems.

An experienced California DUI / DWI defense lawyer from The Kavinoky Law Firm knows how to investigate potential problems in evidential breath test results. When problems are revealed, they may result in the breath test results being excluded, or can be used to lessen the weight of the evidence.

Pitchess Motions

Posted by on May 4, 2012

Pitchess Motions

California DUI lawyers experienced in handling California drunk driving defense cases typically make one or more pretrial motions before the case goes to trial. One pretrial motion is called a Pitchess motion – a request made by the defense to access information in the arresting officer’s personnel file. The skilled California DUI lawyers at The Kavinoky Law Firm are experienced in every aspect of using Pitchess motions to improve the trial prospects of motorists accused of driving under the influence.

Pitchess motions stem from a 1974 California Supreme Court case, Pitchess vs. Superior Court, which is now included in the California Evidence Code. The court in the Pitchess case mandated that a defendant must receive any information that is relevant to the defense. The arresting officer’s personnel file may contain information that support’s a defendant’s claim that the officer engaged in misconduct in the past. Complaints might include excessive force, racial bias, false arrest, planting evidence, discrimination, harassment, or criminal conduct on the part of the arresting officer.

The most common reasoning behind the request for personnel records involves questioning the arresting officer’s credibility. Items in the officer’s personnel file that might call his or her honesty into question include allegations of filing a false police report, using improper tactics, such as illegal or non-approved methods of attaining evidence, or physically abusing or threatening a defendant.

Pitchess motions are extremely complex and require an experienced California DUI lawyer who understands all aspects of this motion. If the correct procedure isn’t followed, the personnel records of the arresting officer may never be revealed, and won’t be utilized in the type of defense necessary to win a DUI / DWI case involving officer misconduct.

A hearing is required to determine whether the officer’s records can be accessed, because the court must balance the rights of the defendant against the officer’s equally compelling interest in maintaining privacy. The hearing is designed to ensure an appropriate balance of these two compelling interests.

Records that may be accessed after a successful Pitchess motion might include records of internal affairs investigations, citizen complaints, and psychological or other medical information concerning the arresting officer. However, the requested records must be relevant to the specific complaint. For example, if the defendant is alleging that the officer filed a false police report, then allegations of excessive force would not be open to investigation.

A Pitchess motion must be served on the custodian of the records. In most cases, this is the law enforcement agency that employs the officer. The motion must include a hearing notice which details the records sought, legal arguments in support of disclosure in that particular case, a declaration under oath (usually by the defendant’s attorney) which specifies the defenses raised and the factual justification for disclosure, and a proposed order for the judge to sign. If excessive force is charged against the officer, then a copy of the police report must be attached.

The motion must be served at least 21 calendar days before the hearing date if hand-delivered to the law enforcement agency. If the motion is served in the mail, then five additional days are required.

The hearing occurs in two steps. During the first step, the judge determines which records are subject to disclosure. Second, the judge will review the particular records in camera, meaning outside of the presence of the lawyers and defendant.

A successful Pitchess motion must demonstrate good cause, meaning that the defense must substantiate the claim with relevant facts from the incident. The court must determine that the defendant has set forth specific facts that support the particular records requested. However, the legal standard for good cause is relatively low. The defendant making the request need only show that the scenario of police misconduct could or might have occurred. If the records are too old, the judge isn’t likely grant access to them, even if they involve the same type of misconduct alleged.

Successful Pitchess motions are favorable rulings for defendants that result in arresting officers’ records being released. An experienced California DUI lawyer will use that information in an attempt to demonstrate a pattern of misconduct on the part of the arresting officer, which may result in certain evidence being excluded at trial.

The Blood Alcohol Calculator (BAC)

Posted by Darren Kavinoky on May 4, 2012

The Blood Alcohol Calculator (BAC)

Blood or Breath Alcohol Content (BAC) is a critical inquiry in nearly every drinking and driving arrest, whether DUI / DWI, driving under the influence of drugs (DUID), drunk driving, or any type of impaired driving case.

The BAC calculator below will allow you to predict your BAC at a given point in time based upon the number of drinks consumed over a period of time. Fill in the information required below for an estimate of blood or breath alcohol level.

Disclaimer: The Blood Alcohol Calculator is for information only. This conversion is not completely accurate and should not be used to determine if you are capable of driving. Your actual Blood Alcohol Level may vary, depending upon many factors, including body type, sex, health status, and many others. Every effort is made to ensure that the results yielded by the Blood Alcohol Calculator are correct; however, do not rely upon this information to decide whether or not it is safe or lawful to drive. Because impairment may occur at any Blood Alcohol Level, we can only recommend that you not drive with any measurable amount of alcohol in your system.

Online Blood-Alcohol Content Calculator (BAC) Beer Wine Shot Fluid Ounces 12 4 1.5 Alcohol Content 4% – 4.5% 15% – 20% 30% – 50% Fluid Ounces Consumed Percent Alcohol Your Weight (Lbs) Hours Consuming Drink BAC Percentage BAC Analysis