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California Vehicle Code VC 23592 – Impounding Vehicles

Posted by on May 4, 2012

23592. (a) (1) Whenever a person is convicted of any of the following offenses committed while driving a motor vehicle of which he or she is the owner, the court, at the time sentence is imposed on the person, may order the motor vehicle impounded for a period of not more than six months for a first conviction, and not more than 12 months for a second or subsequent conviction:

Driving with a suspended or revoked driver’s license.
A violation of Section 2800.2 resulting in an accident or Section 2800.3, if either violation occurred within seven years of one or more separate convictions for a violation of any of the following:
1. Section 23103, if the vehicle involved in the violation was driven at a speed of 100 or more miles per hour.
2. Section 23152.
3. Section 23153.
4. Section 191.5 of the Penal Code.
5. Subdivision (c) of Section 192 of the Penal Code.

(2) The cost of keeping the vehicle is a lien on the vehicle pursuant to Chapter 6.5 (commencing with Section 3067) of Title 14 of Part 4 of Division 3 of the Civil Code.

(b) Notwithstanding subdivision (a), any motor vehicle impounded pursuant to this section which is subject to a chattel mortgage, conditional sale contract, or lease contract shall be released by the court to the legal owner upon the filing of an affidavit by the legal owner that the chattel mortgage, conditional sale contract, or lease contract is in default and shall be delivered to the legal owner upon payment of the accrued cost of keeping the vehicle.

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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Certificates of Rehabilitation and Pardon

Posted by on May 4, 2012

Certificates of Rehabilitation and Pardon

Many people convicted of felonies in California fear that their criminal records will follow them all of their lives, creating hurdles to employment, housing, education, and other opportunities. However, there are several post-conviction relief options that may be available, including a certificate of rehabilitation and pardon. The experienced post-conviction relief lawyers of The Kavinoky Law Firm will evaluate each case to determine whether a California certificate of rehabilitation and pardon may be obtainable.

Certificates of rehabilitation are first sought from the trial court and are the first step in the pardon process. If a certificate is issued, the trial court will recommend that the governor grant a pardon. The governor has the discretion to grant or deny a pardon, unless the individual has multiple felony convictions. In that case, the pardon will require additional approval from the state Supreme Court.

Certificates of rehabilitation are what they sound like— a formal finding that a person is rehabilitated and should be relieved of the burdens of a prior felony conviction. The process of obtaining a certificate of rehabilitation and/or pardon is lengthy and must be done with the assistance of an experienced criminal defense attorney.

Prior convictions can have impact many aspects of life. Most post-conviction relief is limited and provides only partial relief to cleansing a criminal record. Expungement for example, has several key limitations and will neither restore gun possession rights nor alleviate registration as a sex offender under Penal Code 290. Only a pardon can address these consequences.

A governor’s pardon is granted only to individuals who have demonstrated a high standard of constructive behavior following conviction for a felony, or in some cases, for certain specified misdemeanor sex offenses. Obtaining a pardon is a distinct achievement based upon proof of a useful, productive, and law-abiding life following a conviction. California Penal Code section 4852.05 states, "During the period of rehabilitation, the person shall live an honest and upright life, shall conduct himself or herself with sobriety and industry, shall exhibit a good moral character, and shall conform to and obey the laws of the land."

In general, pardon applications will not be considered unless an applicant has been discharged from probation or parole for at least 10 years and has not engaged in further criminal activity. While the receipt of a certificate of rehabilitation is persuasive in evaluating a pardon application, it is but one of many factors in the governor’s decision to grant the pardon. The 10-year rule may be waived in truly exceptional circumstances, if the applicant can demonstrate an earlier, specific need for the pardon.

A certificate of rehabilitation and pardon can truly transform the life of an individual convicted of a felony in California. To learn more about California certificates of rehabilitation and pardons and other forms of post-conviction relief, contact The Kavinoky Law Firm today for a free consultation.

California Vehicle Code VC 23546 – Penalty: Third Conviction Within Ten Years

Posted by on May 4, 2012

California Vehicle Code VC 23546 – Penalty: Third Conviction Within Ten Years

23546. (a) If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of two separate violations of Section 23103, as specified in Section 23103.5, 23152, or 23153, or any combination thereof, that resulted in convictions, that person shall be punished by imprisonment in the county jail for not less than 120 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 revoked by the Department of Motor Vehicles as required in paragraph (5) of subdivision (a) of Section 13352. The court shall require the person to surrender his or her driver’s license to the court in accordance with Section 13550.

(b) A person convicted of a violation of Section 23152 punishable under this section shall be designated as a habitual traffic offender for a period of three years, subsequent to the conviction. The person shall be advised of this designation pursuant to subdivision (b) of Section 13350.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 34, Ch. 22, Stats. 1999. Effective May 26, 1999. Operative July 1 1999.
Amended Sec. 23, Ch. 545, Stats. 2002. Effective January 1, 2003.
Amended Sec. 14, Ch. 550, Stats. 2004. Effective January 1, 2005.

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California Vehicle Code VC 23221 – Drinking in Motor Vehicle

Posted by on May 4, 2012

California Vehicle Code VC 23221 – Drinking in Motor Vehicle

23221. (a) No driver shall drink any alcoholic beverage while in a motor vehicle upon a highway.

(b) No passenger shall drink any alcoholic beverage while in a motor vehicle upon a highway.

Amended Sec. 2, Ch. 723, Stats. 1999. Effective January 1, 2000.

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California Vehicle Code VC 23120 – Temple Width of Glasses

Posted by on May 4, 2012

California Vehicle Code VC 23120 – Temple Width of Glasses

23120. No person shall operate a motor vehicle while wearing glasses having a temple width of one-half inch or more if any part of such temple extends below the horizontal center of the lens so as to interfere with lateral vision.

Added Ch. 531, Stats. 1959. Effective September 18, 1959.

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California Vehicle Code VC 21211 – Obstruction of Bikeways or Bicycle Paths or Trails

Posted by on May 4, 2012

California Vehicle Code VC 21211 – Obstruction of Bikeways or Bicycle Paths or Trails

21211. (a) No person may stop, stand, sit, or loiter upon any class I bikeway, as defined in subdivision (a) of Section 890.4 of the Streets and Highways Code, or any other public or private bicycle path or trail, if the stopping, standing, sitting, or loitering impedes or blocks the normal and reasonable movement of any bicyclist.

(b) No person may place or park any bicycle, vehicle, or any other object upon any bikeway or bicycle path or trail, as specified in subdivision (a), which impedes or blocks the normal and reasonable movement of any bicyclist unless the placement or parking is necessary for safe operation or is otherwise in compliance with the law.

(c) This section does not apply to drivers or owners of utility or public utility vehicles, as provided in Section 22512.

(d) This section does not apply to owners or drivers of vehicles who make brief stops while engaged in the delivery of newspapers to customers along the person’s route.

(e) This section does not apply to the driver or owner of a rubbish or garbage truck while actually engaged in the collection of rubbish or garbage within a business or residence district if the front turn signal lamps at each side of the vehicle are being flashed simultaneously and the rear turn signal lamps at each side of the vehicle are being flashed simultaneously.

(f) This section does not apply to the driver or owner of a tow vehicle while actually engaged in the towing of a vehicle if the front turn signal lamps at each side of the vehicle are being flashed simultaneously and the rear turn signal lamps at each side of the vehicle are being flashed simultaneously.

Amended Ch. 517, Stats. 1993. Effective January 1, 1994.
Amended Sec. 21, Ch. 1007, Stats. 1999. Effective January 1, 2000.
Amended Sec. 7, Ch. 127, Stats. 2001. Effective July 30, 2001.

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California DUI Penalties Under 21 – DMV

Posted by on May 4, 2012

California DUI Penalties Under 21 – DMV

California has what is called a “Zero Tolerance” law for drivers under 21 who are arrested for DUI. This means that if there is even a .01% blood-alcohol concentration, the DMV will take the person’s driver’s license for one year. They will not be able to get their license back from the DMV until they complete a DUI education class.

If it is a first offense, and the under-21 driver has no similar convictions in their past, and the driver is over the age of 18 at the time of the arrest, they may be allowed to participate in the 12-hour educational class. However, if all of these requirements are not met, a more intense and costly 3-month course may be required in order to regain driving privileges.

This is not the end of the story, however. Anyone who is under 21, and accused of DUI, will still have to answer to charges in criminal court.

California Criminal Defense Lawyers

If you or someone you care about is charged with a DUI, please contact a California DUI lawyer in your area for advice. Many DUI cases can be successfully defended. Before you even think about pleading guilty, talk to someone who knows about this area of law.

ABC Test

Posted by on May 4, 2012

ABC Test

Drivers suspected of driving under the influence in California often take the ABC Test or another field sobriety test before being arrested. Drivers often hope that passing this “test” will help them avoid a drunk driving arrest, but unfortunately it serves only to justify an arrest and generate evidence for a court case. However, field sobriety test evidence such as the ABC Test can be aggressively challenged. A skilled California DUI lawyer from The Kavinoky Law Firm can challenge the results of the ABC Test as part of a strategic defense plan.

When administering the ABC Test, a police officer directs the driver to write or recite the alphabet while standing with feet together and arms down. While the test is in progress, the officer is watching for signs of intoxication that include starting the test too soon, an inability to follow directions, slurred speech, or an inability to write or recite the alphabet correctly.

Police and prosecutors may believe that this test is valid because, after all, everyone knows their ABCs, but in reality, anyone would be nervous after being forced from a car along a busy street or highway, and mistakes aren’t uncommon under these circumstances. The test isn’t given under the best of conditions – there are cars speeding by and too many distractions to count. The ABC Test doesn’t even really qualify as a test, because the driver is doomed to fail regardless of mental or physical condition.

There are many conditions unrelated to alcohol intoxication that might cause a driver to perform poorly on the ABC Test, including illness, motor skill impairments, and nervousness. An experienced California drunk driving attorney will collect a driver’s full medical history to determine whether reasons other than alcohol impairment may have caused a driver to “fail” the ABC Test.

The ABC Test is an unreliable gauge of the mental and physical impairment caused by alcohol that it isn’t even standardized by the National Highway Traffic Safety Administration (NHTSA). Because the NHTSA doesn’t recognize the ABC Test, it carries less evidentiary weight in court than a Standardized field sobriety test. The ABC Test has no objective scoring system, and only the officer’s opinion determines whether the driver “passes” or “fails.”

Many drivers fear there’s no point in fighting a DUI / DWI charge because they mistakenly believe that “failing” a field sobriety test means a surefire conviction. However, that’s simply not true. The results of field sobriety tests such as the ABC Test can be successfully challenged in court.

A skilled defense attorney will question the arresting officer’s conclusions during cross-examination and bring out points that work in the driver’s favor. A California DUI lawyer experienced in fighting DUI / DWI charges will dismantle the officer’s testimony as part of a strategic defense plan. Through careful cross-examination, a savvy drunk driving defense attorney can demonstrate that the results could just as easily show that the driver was not impaired.

California Criminal Law – Boating Under the Influence (BUI)

Posted by on May 4, 2012

Boating is an activity that many people engage in for fun and recreation. It’s the kind of activity people associate with summer days at the beach or lake. People also associate alcohol with summer days by the waterfront. The problem is that when alcohol and boating mix, people can get injured. Boating under the influence of alcohol or drugs is a criminal offense that carries serious punishment for guilty offenders. The penalties include jail time, alcohol education classes, fines, and other penalties. A qualified California DUI / DWI attorney is capable of handling cases involving boating under the influence.

The California Harbors and Navigation Code provides the laws regarding boating under the influence. The code defines being under the influence as having a blood alcohol content (BAC) of .08 percent for a recreational vessel and .04 percent for a commercial craft. The statute sets a zero-tolerance for craft such as aquaplanes and water skis. The zero-tolerance policy means that any trace of alcohol is illegal when operating these craft.

Boating under the influence can be many times more dangerous than driving under the influence of drugs or alcohol. People drive every day and are well practiced at it. When it comes to boating however, many people might drive a boat a couple times a year. Such a person is far from an expert boat driver. For that same person to be drunk and boating is extremely dangerous.

Another important distinction between driving and boating is that driving takes place most commonly on roads that are fairly wide and stable. Boating takes place out in the ocean where the tides and winds can change in an instant. If a person is drunk, they will not be fast enough to respond properly to the changing circumstances. In fact, statistics from the United States Coast Guard show that in boating deaths involving alcohol use, over half the victims capsized their own boats and/or fell overboard.

Furthermore, boats, by their very nature, are inferior to cars in their ability to steer and to brake. Given that the typical boat operator spends only a few days a year on the water, they are typically not expert at handling the different problems that boaters encounter from time to time. When the hot sun and alcohol have had their say, an impaired person at the helm of a boat may be in bad shape and will be putting everyone aboard and nearby in danger.

As in cases of driving a car under the influence, the potential penalties for boating under the influence are very harsh. It is important to seek the help of a qualified criminal defense attorney. A California attorney experienced in defending BUI / BWI cases can launch an aggressive defense to the charges, and keep any negative consequences to a minimum.

California Vehicle Code VC 13353 – Refusal of Chemical Test

Posted by on May 4, 2012

California Vehicle Code VC 13353 – Refusal of Chemical Test

13353. (a) If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following:

Suspend the person’s privilege to operate a motor vehicle for a period of one year.
Revoke the person’s privilege to operate a motor vehicle for a period of two years if the refusal occurred within 10 years of either (A) a separate violation of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, that resulted in a conviction, or (B) a suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for an offense that occurred on a separate occasion.
Revoke the person’s privilege to operate a motor vehicle for a period of three years if the refusal occurred within 10 years of any of the following:
1. Two or more separate violations of Section 23103 as specified in Section 23103.5, or of Section 23140, 23152, or 23153, or of Section 191.5 or paragraph (3) of subdivision (c) of Section 192 of the Penal Code, or any combination thereof, that resulted in convictions.
2. Two or more suspensions or revocations of the person’s privilege to operate a motor vehicle pursuant to this section or Section 13353.2 for offenses that occurred on separate occasions.
3. Any combination of two or more of those convictions or administrative suspensions or revocations.
  The officer’s sworn statement shall be submitted pursuant to Section 13380 on a form furnished or approved by the department. The suspension or revocation shall not become effective until 30 days after the giving of written notice thereof, or until the end of any stay of the suspension or revocation, as provided for in Section 13558.
4. For the purposes of this section, a conviction of any offense in any 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, or 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.

(b) If a person on more than one occasion in separate incidents refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612 while driving a motor vehicle, upon the receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, the department shall disqualify the person from operating a commercial motor vehicle for the rest of his or her lifetime.

(c) The notice of the order of suspension or revocation under this section shall be served on the person by a peace officer pursuant to Section 23612. The notice of the order of suspension or revocation shall be on a form provided by the department. If the notice of the order of suspension or revocation has not been served by the peace officer pursuant to Section 23612, the department immediately shall notify the person in writing of the action taken. The peace officer who serves the notice, or the department, if applicable, also shall provide, if the officer or department, as the case may be, determines that it is necessary to do so, the person with the appropriate non-English notice developed pursuant to subdivision (d) of Section 14100.

(d) Upon the receipt of the officer’s sworn statement, the department shall review the record. For purposes of this section, the scope of the administrative review shall cover all of the following issues:

Whether the peace officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153.
Whether the person was placed under arrest.
Whether the person refused to submit to, or did not complete, the test or tests after being requested by a peace officer.
Whether, except for a person described in subdivision (a) of Section 23612 who is incapable of refusing, the person had been told that his or her driving privilege would be suspended or revoked if he or she refused to submit to, or did not complete, the test or tests.

(e) The person may request an administrative hearing pursuant to Section 13558. Except as provided in subdivision (e) of Section 13558, the request for an administrative hearing does not stay the order of suspension or revocation.

(f) The suspension or revocation imposed under this section shall run concurrently with any restriction, suspension, or revocation imposed under Section 13352, 13352.4, or 13352.5 that resulted from the same arrest.

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

Amended Sec. 7.5, Ch. 952, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.
The 2005 amendment added the italicized material.

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