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 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.

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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.
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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.
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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.
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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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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.