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

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)

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

 

Internet Traffic Schools

GoToTrafficSchool.com, is the Internet’s most popular online traffic school course. Go To Traffic School offer online traffic school programs for ticket dismissal, insurance reduction, safe driver points, and fleet driver safety programs.

This program is best suited for those who have received a traffic ticket and would like to take traffic school online so that the traffic ticket does not appear on their record, those who would like to lower their insurance premiums, and those who need to take a driver safety course for their work.

Go To Traffic School is the best and most convenient way to attend online traffic school on the Internet.

Unlike other Internet courses you do not have to struggle to get through this course. The course is easy to read and follow. You do not need to own various types of computer software to take this course. No downloading, e-mail, fax or printer is required. The course is 100% interactive. Anybody who has access to a computer can take this course.

About the Content

GoToTrafficSchool.Com offers the best online traffic school in every state throughout the country. Online traffic school course curriculum allows you to learn everything online that you would learn in a traditional traffic school classroom. The text is rich with animations, illustrations and interesting facts. After completing the last chapter of the course you will take a final examination. Upon your successful completion of the final examination GoToTrafficSchool.Com will e-mail you a confirmation of your completion. They will also send a hard copy of your certificate of completion to the court or to you, depending upon the state and county in which you were cited.

There is no time limit for a online traffic school course. Spend as much time required to complete our internet traffic school course. You can log on and off as many times as you wish. The unique tracking feature will save your place.

The course is available online 24 hours a day, 7 days a week

About The Quizzes

A short Quiz is administered at the end of each chapter. The quizzes are designed to test your understanding of key points of each chapter and prepare you for the final examination. Each quiz consists of a combination of 2-10 true/false and multiple choice questions. After correctly answering all of the questions of each quiz you will be able to proceed to the next section. If you fail a quiz you can go back through the chapter to review the materials and then re-take the quiz.

About The Final Exam

After completing all of the chapters a final examination based on the material you read will be administered. In order to pass the final examination you must get at least 70% to 80% of the questions correct, depending on the court. Right after you complete the final examination GoToTrafficSchool.Com will let you know whether you passed. In the event that you do not pass the final examination you can continue to re-study the material and re-take different final examinations until you pass without any further fees. When you pass the final examination you will be notified immediately via e-mail, and depending upon the requirement of your court, GoToTrafficSchool.Com will either mail your certificate of completion to you or directly to your court.

California Vehicle Code VC 13352.2 – DUI Program: Proof of Enrollment and Completion

13352.2. (a) If a person is required under Section 13352 to provide the department with proof of enrollment in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, or a program specified in Section 8001 of the Penal Code, the department shall deem that requirement satisfied upon receiving at its headquarters proof of enrollment that is satisfactory to the department and has been forwarded to the department by the program provider.

(b) If a person is required under Section 13352 to provide the department with proof of completion of a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, or a program specified in Section 8001 of the Penal Code, the department shall deem that requirement satisfied upon receiving at its headquarters proof of completion that is satisfactory to the department and has been forwarded to the department by the program provider.

Added Sec. 1, Ch. 403, 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.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

California Vehicle Code VC 13355 – Driving in Excess of 100 Miles Per Hour: Suspension

13355. The department shall immediately suspend the privilege of any person to operate a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of a violation of subdivision (b) of Section 22348, or upon a receipt of a report of a judge of a juvenile court, a juvenile hearing officer, or a referee of a juvenile court showing that the person has been found to have committed a violation of subdivision (b) of Section 22348 under the following conditions and for the periods, as follows:

1. Upon a conviction or finding of an offense under subdivision (b) of Section 22348 that occurred within three years of a prior offense resulting in a conviction of an offense under subdivision (b) of Section 22348, the privilege shall be suspended for a period of six months, or the privilege shall be restricted for six months to necessary travel to and from the 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 within the person’s scope of employment.
2. Upon a conviction or finding of an offense under subdivision (b) of Section 22348 that occurred within five years of two or more prior offenses resulting in convictions of offenses under subdivision (b) of Section 22348, the privilege shall be suspended for a period of one year, or the privilege shall be restricted for one year to necessary travel to and from the 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 within the person’s scope of employment.

Amended Sec. 84, Ch. 149, Stats. 2003. Effective January 1, 2004.

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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.

California Vehicle Code VC 13370 – Denial, Suspension, or Revocation of Certificate

13370. (a) The department shall ( )1 refuse to issue or shall revoke a schoolbus,, school pupil activity bus, general public paratransit vehicle, or youth bus driver certificate, or a certificate for a vehicle used for the transportation of developmentally disabled persons if any of the following causes apply to the applicant or certificate holder:

1. Has been convicted of a sex offense as defined in Section 44010 of the Education Code.
2. Has been convicted, within ( )2 two years, of an offense specified in Section 11361.5 of the Health and Safety Code.
3. Has failed to meet prescribed training requirements for certificate issuance.
4. Has failed to meet prescribed testing requirements for certificate issuance.
5. Has been convicted of a violent felony listed in subdivision (c) of Section 667.5 of the Penal Code, or a serious felony listed in subdivision (c) of Section 1192.7 of the Penal Code. This paragraph shall not be applied to revoke a license that was valid on January 1, 2005, unless the certificate holder is convicted for an offense that is committed on or after that date.

(b) The department may ( )3 refuse to issue or renew, or may suspend or revoke a schoolbus, school pupil activity bus, general public paratransit vehicle, or youth bus driver certificate, or a certificate for a vehicle used for the transportation of developmentally disabled persons if any of the following causes apply to the applicant or certificate holder:

1. Has been convicted of a crime specified in Section 44424 of the Education Code within ( )4 seven years. This paragraph does not apply if denial is mandatory.
2. Has committed an act involving moral turpitude.
3. Has been convicted of an offense, not specified in this section and other than a sex offense, that is punishable as a felony, within ( )4 seven years.
4. Has been dismissed as a driver for a cause relating to pupil transportation safety.
5. Has been convicted, within ( )4 seven years, of an offense relating to the use, sale, possession, or transportation of narcotics, habit-forming drugs, or dangerous drugs, except as provided in paragraph (3) of subdivision (a).

(c) (1) Reapplication following ( )5 refusal or revocation under paragraph (1), (2), or (3) of subdivision (a) or (b) may be made after a period of not less than one year ( )6 after the effective date of ( )5 refusal or revocation.

(2) Reapplication following ( )5 refusal or revocation under paragraph (4) of subdivision (a) may be made after a period of not less than 45 days ( )6 after the date of the applicant’s third testing failure.

(3) An applicant or holder of a certificate may reapply for a certificate whenever a felony or misdemeanor conviction is reversed or dismissed. A termination of probation and dismissal of charges pursuant to Section 1203.4 of the Penal Code or a dismissal of charges pursuant to Section 1203.4a of the Penal Code is not a dismissal for purposes of this section.

Amended Sec. 59, Ch. 877, Stats. 1998. Effective January 1, 1999.
Amended Sec. 37, Ch. 594, Stats. 2003. Effective January 1, 2004.
Amended Sec. 27, Ch. 615, Stats. 2004. Effective January 1, 2005.
Amended Sec. 2, Ch. 66, Stats. 2005. Effective January 1, 2006.
The 2005 amendment added the italicized material, and at the point(s) indicated, deleted the following:

1. "deny"
2. "the two years preceding the application date"
3. "deny, suspend,"
4. "the seven years preceding the application date"
5. "denial"
6. "from"

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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.

California Vehicle Code VC 23577 – Chemical Testing: Refusal to Take or Failure to Complete: Enhanced Penalties

23577. (a) If any person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or tests pursuant to Section 23612, the court shall impose the following penalties:

1. If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
2. If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
3. If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
4. If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
5. If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.

(b) The willful refusal or failure to complete the chemical test required pursuant to Section 23612 shall be pled and proven.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 39, Ch. 22, Stats. 1999. Effective May 26, 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.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.

Consequences of a DMV Hearing

The consequences of a DMV Administrative Per Se (APS) Hearing can range from nothing to harsh suspensions and revocations. With the help of a California criminal defense attorney with vast experience in DUI / DWI cases, the consequences of these hearings will most likely be limited.

The first thing to know about the consequences of Department of Motor Vehicles hearings is that unless you request a hearing within ten (10) days of your arrest, a process will begin to have your driver’s license automatically suspended and you may never get a DMV hearing.

One of the possible consequences of a Department of Motor Vehicles hearing can be the case being set aside. This is the best option, and means no action will be taken against the driver’s license.

A second consequence is that a driver’s license will be suspended, revoked, or restricted. The length of suspension depends upon several factors including how many DUIs the driver has had over the past ten (10) years. The more past violations, the longer the suspension will be. First-time offenders are generally treated with the most leniency.

If a driver’s job requires on-the-job driving, or if a driver cannot get to work unless they drive there, the APS judge may restrict the license to limit driving privileges to going back and forth to work and to court. If the circumstances of the DUI / DWI are grievous or if the driver is a repeat offender, restrictions may not be granted.

Furthermore, a driver may be required to file formal proof of insurance with the DMV. This is done with the filing of an SR-22 form. When one is required to make this filing, one’s insurance company will be made aware of the violation automatically.

Consequences of refusal to submit to a chemical tests after being arrested will result in an automatic one-year suspension unless a DUI / DWI defense attorney can illustrate that there was no refusal. If the driver has a prior drunk driving conviction and refuses, the suspension will be for two years. Two prior DUIs plus a refusal to submit to a test on the third arrest will result in a three-year suspension. For a previous offense to count, it must have occurred within ten (10) years of the current driving under the influence arrest in California.

Consequences of DMV hearings may be harsh. It is best to have a California criminal defense attorney with vast experience in DUI / DWI cases on your side if you want to minimize the consequences against your driver’s license. Seek a free evaluation from The Kavinoky Law Firm if you want to fight the Department of Motor Vehicles and protect your driving privileges.

California Vehicle Code VC 23552 – Conditions of Probation

23552. (a) (1) If the court grants probation to a person punished under Section 23550, in addition to the provisions of Section 23600 and any other terms and conditions imposed by the court, the court shall impose as conditions of probation that the person be confined in a county jail for at least 180 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 revoked by the department under paragraph (7) 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) In addition to subdivision (a), if the court grants probation to any person punished under Section 23550, the court may order as a condition of probation that the person participate, for at least 30 months subsequent to the underlying conviction and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code. In lieu of the minimum term of imprisonment in subdivision (a), the court shall impose as a condition of probation under this subdivision that the person be confined in the county jail for at least 30 days but not more than one year. The court shall not order the treatment prescribed by this subdivision unless the person makes a specific request and shows good cause for the order, whether or not the person has previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562. In order to enable all required persons to participate, each person shall pay the program costs commensurate with the person’s ability to pay as determined pursuant to Section 11837.4 of the Health and Safety Code. No condition of probation required pursuant to this subdivision is a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (7) of subdivision (a) of Section 13352.

(c) In addition to the provisions of Section 23600 and subdivision (a), if the court grants probation to any person punished under Section 23550 who has not previously completed a treatment program pursuant to paragraph (4) of subdivision (b) of Section 23542 or paragraph (4) of subdivision (b) of Section 23562, and unless the person is ordered to participate in, and complete, a program under subdivision (b), the court shall impose as a condition of probation that the person, subsequent to the date of the current violation, enroll in and participate, for at least 18 months and in a manner satisfactory to the court, in a driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code, as designated by the court. The person shall complete the entire program subsequent to, and shall not be given any credit for program activities completed prior to, the date of the current violation. A person who has previously completed a 12-month or 18-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code shall not be eligible for referral pursuant to this subdivision unless a 30-month driving-under-the-influence program licensed pursuant to Section 11836 of the Health and Safety Code is not available for referral in the county of the person’s residence or employment. A condition of probation required pursuant to this subdivision is not a basis for reducing any other probation requirement in this section or Section 23600 or for avoiding the mandatory license revocation provisions of paragraph (7) of subdivision (a) of Section 13352.

(d) The court shall advise the person at the time of sentencing that the driving privilege may not be restored until the person provides 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. 35.7, Ch. 22, Stats. 1999. Effective May 26, 1999. Operative July 1 1999.
Amended Sec. 27, Ch. 545, Stats. 2002. Effective January 1, 2003.
Amended Sec. 20, Ch. 551, Stats. 2004. Effective January 1, 2005. Operative September 20, 2005.

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Note: Laws change frequently and thus the information provided should not be relied upon as legal advice. To be certain, contact a criminal defense attorney for a legal assistance.
www.NoCuffs.com is not liable for any misinformation that users obtain from using this site.