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.

» Return to California Vehicle Codes

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 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.

» Return to California Vehicle Codes

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 13368 – Driver Training Requirement

13368. The department, as a condition to the reinstatement of a suspended license or the issuance of a new license to an individual whose prior license has been revoked, may require the individual to attend the program authorized by the provisions of Section 1659.

Added Ch. 447, Stats. 1965. Effective September 17, 1965.

» Return to California Vehicle Codes

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 23575 – Authorized and Mandatory Installation of Ignition Interlock Device

23575. (a) (1) In addition to any other provisions of law, the court may require that a person convicted of a first offense violation of Section 23152 or 23153 to install a certified ignition interlock device on any vehicle that the person owns or operates and prohibit that person from operating a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device. The court shall give heightened consideration to applying this sanction to a first offense ( )1 violator with 0.20 percent or more, by weight, of alcohol in his or her blood at arrest, or with two or more prior moving traffic violations, or ( )2 to persons who refused the chemical tests at arrest. If the court orders the ignition interlock device restriction, the term shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the person’s records in the Department of Motor Vehicles.

(2) The court shall require a person convicted of a violation of Section 14601.2 to install an ignition interlock device on any vehicle that the person owns or operates and prohibit the person from operating a motor vehicle unless the vehicle is equipped with a functioning, certified ignition interlock device. The term of the restriction shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the person’s records in the Department of Motor Vehicles.

(b) The court shall include on the abstract of conviction or violation submitted to the Department of Motor Vehicles under Section 1803 or 1816, the requirement and term for the use of a certified ignition interlock device. The records of the department shall reflect mandatory use of the device for the term ordered by the court.

(c) The court shall advise the person that installation of an ignition interlock device on a vehicle does not allow the person to drive without a valid driver’s license.

(d) A person whose driving privilege is restricted by the court pursuant to this section shall arrange for each vehicle with an ignition interlock device to be serviced by the installer at least once every 60 days in order for the installer to recalibrate and monitor the operation of the device. The installer shall notify the court if the device is removed or indicates that the person has attempted to remove, bypass, or tamper with the device, or if the person fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device. There is no obligation for the installer to notify the court if the person has complied with all of the requirements of this article.

(e) The court shall monitor the installation and maintenance of any ignition interlock device restriction ordered pursuant to subdivision (a) or (l). If a person fails to comply with the court order, the court shall give notice of the fact to the department pursuant to Section 40509.1.

(f) (1) Pursuant to Section 13352, if a person is convicted of a violation of Section 23152 or 23153, and the offense occurred within 10 years of one or more separate violations of Section 23152 or 23153 that resulted in a conviction, the person may apply to the Department of Motor Vehicles for a restricted driver’s license pursuant to Section 13352 that prohibits the person from operating a motor vehicle unless that vehicle is equipped with a functioning ignition interlock device, certified pursuant to Section 13386. The restriction shall remain in effect for at least the remaining period of the original suspension or revocation and until all reinstatement requirements in Section 13352 are met.

(2) Pursuant to subdivision (g), the Department of Motor Vehicles shall immediately terminate the restriction issued pursuant to Section 13352 and shall immediately suspend or revoke the privilege to operate a motor vehicle of a person who attempts to remove, bypass, or tamper with the device, who has the device removed prior to the termination date of the restriction, or who fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device ordered pursuant to Section 13352. The privilege shall remain suspended or revoked for the remaining period of the originating suspension or revocation and until all reinstatement requirements in Section 13352 are met.

(g) A person whose driving privilege is restricted by the Department of Motor Vehicles pursuant to Section 13352 shall arrange for each vehicle with an ignition interlock device to be serviced by the installer at least once every 60 days in order for the installer to recalibrate the device and monitor the operation of the device. The installer shall notify the Department of Motor Vehicles if the device is removed or indicates that the person has attempted to remove, bypass, or tamper with the device, or if the person fails three or more times to comply with any requirement for the maintenance or calibration of the ignition interlock device. There is no obligation on the part of the installer to notify the department or the court if the person has complied with all of the requirements of this section.

(h) Nothing in this section permits a person to drive without a valid driver’s license.

(i) The Department of Motor Vehicles shall include information along with the order of suspension or revocation for repeat offenders informing them that after a specified period of suspension or revocation has been completed, the person may either install an ignition interlock device on any vehicle that the person owns or operates or remain with a suspended or revoked driver’s license.

(j) Pursuant to this section, an out-of-state resident who otherwise would qualify for an ignition interlock device restricted license in California shall be prohibited from operating a motor vehicle in California unless that vehicle is equipped with a functioning ignition interlock device. An ignition interlock device is not required to be installed on any vehicle owned by the defendant that is not driven in California.

(k) If a person has a medical problem that does not permit the person to breathe with sufficient strength to activate the device, then that person shall only have the suspension option.

(l) This section does not restrict a court from requiring installation of an ignition interlock device and prohibiting operation of a motor vehicle unless that vehicle is equipped with a functioning, certified ignition interlock device for a ( )3 person to whom subdivision (a) or (b) does not apply. The term of the restriction shall be determined by the court for a period not to exceed three years from the date of conviction. The court shall notify the Department of Motor Vehicles, as specified in subdivision (a) of Section 1803, of the terms of the restrictions in accordance with subdivision (a) of Section 1804. The Department of Motor Vehicles shall place the restriction in the person’s records in the Department of Motor Vehicles.

(m) For the purposes of this section, "vehicle" does not include a motorcycle until the state certifies an ignition interlock device that can be installed on a motorcycle. Any person subject to an ignition interlock device restriction shall not operate a motorcycle for the duration of the ignition interlock device restriction period.

(n) For the purposes of this section, "owned" means solely owned or owned in conjunction with another person or legal entity. For purposes of this section, "operates" includes operating vehicles that are not owned by the person subject to this section.

(o) For the purposes of this section, bypass includes, but is not limited to, either of the following:

1. Any combination of failing or not taking the ignition interlock device rolling retest three consecutive times.
2. Any incidence of failing or not taking the ignition interlock device rolling retest, when not followed by an incidence of passing the ignition interlock rolling retest prior to turning off the ( )4 vehicle’s engine.

Amended Sec. 21, Ch. 756, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999. Supersedes Ch. 118.
Amended and renumbered from 23246 Sec. 27, Ch. 22, Stats. 1999. Effective May 25, 1999.
Amended Sec. 11, Ch. 1064, Stats. 2000. Effective September 30, 2000.
Amended Sec. 23, Ch. 473, Stats. 2001. Effective January 1, 2002.
Amended Sec. 18, Ch. 550, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.
Amended Sec. 202, Ch. 22, Stats. 2005. Effective January 1, 2006.
The 2005 amendment added the italicized material, and at the point(s) indicated, deleted the following:

1. "violators"
2. "of"
3. "persons"
4. "vehicles’s engine off"

» Return to California Vehicle Codes

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.

Defenses to Criminal Charges

Did you know that dental work can trap alcohol in the mouth, and cause a falsely high breath test reading?

Did you know that speeding, by itself, is consistent with sobriety and not intoxication?

Do you know what Field Sobriety Tests are designed to demonstrate, and how the results can be turned into favorable evidence for you?

The prosecutor and police will attempt to prove the accused is guilty of DUI by describing sloppy driving, poor performance on the field sobriety tests, and by introducing the results of the chemical testing (blood, breath or urine) if a test is taken. If there is no chemical test, the prosecutor will attempt to use a refusal to take a chemical test as “consciousness of guilt.”

The defenses to the DUI charges will generally fall into these same three categories: driving evidence, field sobriety tests, and chemical testing. Remember that a conviction requires 12 jurors to agree on the guilt of the accused. A skilled criminal defense attorney is the best hope for creating doubt in these areas, rendering the prosecution’s evidence an unreliable basis for the jury to return a guilty verdict.

A criminal defense attorney can highlight those areas where the driving by the accused was consistent with their being sober at the time. Turning normally, parking properly, and signaling appropriately: those driving patterns that are consistent with sobriety can go a long way towards presenting the complete picture, and rebutting the prosecution’s case.

Every place the police report is silent is a fertile area to demonstrate the innocence of the accused. Everything the accused didn’t do can be the best evidence of their sobriety, and the basis for a “not guilty” verdict. For example, if the police report does not say the accused fumbled with their driver’s license, a skilled criminal defense attorney can make points by illustrating that an intoxicated person might, but that this accused did not.

An experienced criminal defense attorney will know how to point out the faults of whichever chemical test is involved, or the legitimate reasons why a chemical test was refused. There are many reasons for falsely high breath tests. The accused may have burped prior to taking the test. The testing device may be improperly calibrated. Electrical interference from police radios can skew the results. A blood sample may have improper levels of preservatives. The point is that there are many ways to chip away at the trustworthiness of the prosecution’s evidence, and prevent the prosecution from meeting their burden of proof beyond a reasonable doubt.

If you or anyone you care about has been accused of DUI, please consult a Southern California DUI Lawyer right away.

California Vehicle Code VC 23556 – Conditions of Probation: First Conviction

23556. (a) (1) If the court grants probation to any person punished under Section 23554, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as a condition of probation that the person be confined in the county jail for at least five days but not more than one year and pay a fine of at least three hundred ninety dollars ($390) but not more than one thousand dollars ($1,000).

(2) The person’s privilege to operate a motor vehicle shall be suspended by the department under 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.

(b) (1) In a county where the county alcohol program administrator has certified, and the board of supervisors has approved, a program or programs, the court shall also impose as a condition of probation that the driver shall participate in, and successfully complete, an alcohol and other drug education and counseling program, established pursuant to Section 11837.3 of the Health and Safety Code, as designated by the court.

(2) In any county where the board of supervisors has approved and the State Department of Alcohol and Drug Programs has licensed an alcohol and other drug education and counseling program, the court shall also impose as a condition of probation that the driver enroll in, participate in, and successfully complete, a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, in the driver’s county of residence or employment, as designated by the court. For the purposes of this paragraph, enrollment in, participation in, and completion of, an approved program shall be subsequent to the date of the current violation. Credit may not be given to any program activities completed prior to the date of the current violation.

(3) The court shall refer a first offender whose blood-alcohol concentration was less than 0.20 percent, by weight, to participate for three months or longer, as ordered by the court, in a licensed program that consists of at least 30 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.

(4) The court shall refer a first offender whose blood-alcohol concentration was 0.20 percent or more, by weight, or who refused to take a chemical test, to participate for ( )1 nine months or longer, as ordered by the court, in a licensed program that consists of at least ( )2 60 hours of program activities, including those education, group counseling, and individual interview sessions described in Chapter 9 (commencing with Section 11836) of Part 2 of Division 10.5 of the Health and Safety Code.

(c) (1) The court shall revoke the person’s probation pursuant to Section 23602, except for good cause shown, for the failure to enroll in, participate in, or complete a program specified in subdivision (b).

(2) The court, in establishing reporting requirements, shall consult with the county alcohol program administrator. The county alcohol program administrator shall coordinate the reporting requirements with the department and with the Department of Alcohol and Drug Programs. That reporting shall ensure that all persons who, after being ordered to attend and complete a program, may be identified for either (A) failure to enroll in, or failure to successfully complete, the program, or (B) successful completion of the program as ordered.

(d) The court shall advise the person at the time of sentencing that the driving privilege shall not be restored until the person has provided proof satisfactory to the department of successful completion of a driving-under-the-influence program of the length required under this code that is licensed pursuant to Section 11836 of the Health and Safety Code.

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

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 29, Ch. 545, Stats. 2002. Effective January 1, 2003.
Amended Sec. 21, Ch. 551, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.
Amended Sec. 4, Ch. 164, Stats. 2005. Effective January 1, 2006.
The 2005 amendment added the italicized material, and at the point(s) indicated, deleted the following:

1. "six"
2. "45"2005.

» Return to California Vehicle Codes

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 23229 – Possession of Alcoholic Beverages: Exceptions

23229. (a) Except as provided in Section 23229.1, Sections 23221 and 23223 do not apply to passengers in any bus, taxicab, or limousine for hire licensed to transport passengers pursuant to the Public Utilities Code or proper local authority, or the living quarters of a housecar or camper.

(b) Except as provided in Section 23229.1, Section 23225 does not apply to the driver or owner of a bus, taxicab, or limousine for hire licensed to transport passengers pursuant to the Public Utilities Code or proper local authority.

(c) This section shall become operative on July 1, 1989.

» Return to California Vehicle Codes

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 23136 – PAS Persons Under 21: Preliminary Screening Device

23136. (a) Notwithstanding Sections 23152 and 23153, it is unlawful for a person under the age of 21 years who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, to drive a vehicle.
However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other provision of law.

(b) A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years,
and the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.

(c) (1) Any person under the age of 21 years who drives a motor vehicle is deemed to have given his or her consent to a preliminary
alcohol screening test or other chemical test for the purpose of determining the presence of alcohol in the person, if lawfully detained for an alleged violation of subdivision (a).

(2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of subdivision (a).

(3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test or other
chemical test as requested will result in the suspension or revocation of the person’s privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1.

Added Ch. 899, Stats. 1993. Effective January 1, 1994.
Amended Ch. 938, Stats. 1994. Effective September 28, 1994.
Amended Sec. 18, Ch. 10, Stats. 1996. Effective February 9, 1996.

» Return to California Vehicle Codes

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.