Sealing and Destruction Of Records (California Penal Code 851.8)

With more sophisticated computers and increasing laws designed to be tough on criminal offenders, privacy is fast becoming a concern for everyone; especially individuals with a criminal record. While they say we learn from our mistakes, no one wants their criminal records public. Depending on the circumstances, it may be possible to get criminal records sealed. Once records are sealed it limits public access. In these cases, the offense is deemed not to have occurred and the records are subsequently destroyed. The skilled California defense lawyers of The Kavinoky Law Firm are experienced in all aspects of petitioning to have criminal records sealed and destroyed.

Sealing and destruction of records is a good option in certain cases and more difficult in others. Under California penal code 851.8, an innocent person arrested for or charged with a crime may be able to have the records sealed by obtaining a declaration of “factual innocence.” A finding of factual innocence is generally initiated by motion and requires a judge’s approval.

In general, someone is deemed to be factually innocent if no reasonable cause exists to believe he or she committed the offense. The procedure for obtaining a certificate of factual innocence vary depending on whether formal charges are filed, but the result is the same: All records relating to the arrest and charges must be sealed for three years and must subsequently be destroyed. The arrest is deemed never to have occurred.

Often time arrests occur and the person is released and no formal charges are filed. In these cases, the arrestee can petition for a finding of factual innocence to have the arrest records sealed.

When charges were filed but the case was dismissed, a petition for a finding of factual innocence can be made, but it’s in the discretion of the court and the district attorney to grant relief. When a trial results in an acquittal, the judge may find the person factually innocent and order relief.

There are specific evidentiary and timing issues which are important to maximize a successful finding of factual of innocence. Anyone looking into relief under penal code 851.8 should consult with a California criminal defense attorney.

Even in cases where sealing and destruction of records is appropriate, certain exceptions apply. Transcripts of court proceedings, published appellate opinions, and any records relevant to pending lawsuits are exempted. Records will not be destroyed if the conviction is on appeal, jail time was never served, fines unpaid, probation is incomplete, or there is a bench warrant.

There are certain cases when relief under Penal Code 851.8 can be very useful, including:

• Juvenile misdemeanor arrest and conviction records
• Marijuana arrests and convictions
• Drug diversion agency records

Juvenile misdemeanor arrest and conviction records: Sealing of records is often awarded in cases involving minors. The arrest records of a minor may be sealed if he or she was released for lack of probable cause; the juvenile court dismissed the case, or the defendant was acquitted.

This section does not apply to arrests for sex, drug, or traffic offenses. If the court makes the finding required for relief, the records will be sealed and the proceedings will be deemed not to have occurred.

It is rare for a person under age 18 to be convicted of a misdemeanor in adult court but when it does happen, Pen Code §1203.45 provides for the sealing of such records

Marijuana arrests and convictions: In general, while sealing and destruction of records requires court approval, cases such as minor misdemeanor marijuana convictions will be automatically sealed. Records of marijuana arrests and convictions are automatically destroyed two years after the arrest or conviction in cases involving simple possession.

Drug diversion agency records: PC 851.8 provides that drug diversion agency records will be sealed and destroyed.

Employers generally cannot ask job applicants about arrests or detentions that did not result in conviction; convictions for which the record has been ordered sealed or expunged; expungements or as noted above, or participation in a diversion program.

Applicants for peace officer and health care positions are exempted from this rule, and applicants can be asked about arrests for sex or drug offenses. Professions involving young children have also been found to require disclosure for arrests involving sex or drug offenses.

Sealing and destruction of records is a viable option after many California criminal convictions. The experienced California criminal defense attorney of The Kavinoky Law Firm can determine whether an arrest or conviction can be sealed and destroyed. Contact them today for a free consultation.

Drivers who leave the scene of an accident in California can face hit-and-run charges even if they are not at fault. The severity of the charges depends on many factors, such as whether the accident results in a  hit and run with property damage, injury, or death. Regardless of the circumstances, hit-and-run is a very serious charge that requires expert legal representation. The skilled defense lawyers of The Kavinoky Law Firm are experienced in every aspect of California hit-and-run cases, and will work very hard to protect the accused driver’s rights and freedom.

Leaving the scene of a fatal accident is an extremely serious charge in California. A driver convicted of hit-and-run causing death faces from three months in county jail to up to four years in state prison. The driver also faces a fine of up to $10,000, a one-year driver’s license revocation, probation, and possible vehicle seizure.

In some cases, a driver involved in a fatal hit-and-run accident can face even more serious charges such as manslaughter or vehicular homicide. And if alcohol or drugs were involved, the driver may face an additional charge of DUI / DWI or driving under the influence of drugs.

However, a hit-and-run charge doesn’t equal an automatic conviction – far from it. There are many effective defenses to a charge of leaving the scene of an accident. It’s important to remember that the prosecutor is required to prove his or her case beyond a reasonable doubt in order to obtain a conviction. That means the prosecutor has the burden of convincing all 12 jurors of the driver’s guilt. The defense is under no burden to prove anything other than to prove the prosecution’s case is faulty.

Hit-and-run cases involving death are extremely complex and technical, and typically involve a great deal of physical evidence. In many cases, the assistance of an experienced accident reconstructionalist can uncover evidence overlooked by police that can help the defendant’s case.

In some cases, the defense may be better off negotiating a plea bargain rather than taking a charge of leaving the scene of an accident to trial. Plea bargains sometimes offer a satisfactory resolution to a hit-and-run charge involving death. It may be possible for the driver to plead guilty in exchange for reduced charges and/or punishment. In some cases, alternative sentencing may be available that can reduce or even eliminate a jail sentence.

There are many viable defense strategies to a California hit-and-run charge involving property damage, injury or death. The experienced defense lawyers of The Kavinoky Law Firm are skilled in every aspect of defending charges of leaving the scene of an accident, and will develop a proven defense strategy designed to safeguard the driver’s rights and minimize the consequences. Contact them today for a free consultation.

Sometimes it seems that California has as many vehicle-related laws as it does cars – besides the hundreds of infractions listed in the California Vehicle Code, there are a host of more serious offenses such as DUI, hit-and-run, and evading arrest. These are serious crimes with severe repercussions and require expert legal help. The skilled defense lawyers of The Kavinoky Law Firm have the experience needed to effectively defend any vehicle-related offense in the greater Los Angeles area or anywhere in California.

California’s drunk driving laws are among the strictest in the nation – a driver convicted of DUI faces consequences that include heavy fines, long driver’s license suspensions, and even jail time. The severity of the driver’s case depends on many factors, such as whether the offense was charged as a misdemeanor or a felony and whether the motorist refused a chemical test to determine blood alcohol content (BAC). However, it’s possible to fight a driving under the influence charge and win with a top defense attorney at the driver’s side.

Hit-and-run is another serious offense under California law. Anyone who leaves the scene after being involved in or causing an accident can be charged with hit-and-run. The seriousness of the charges will depend on whether the accident involved property damage, injury, or death. If convicted, the driver faces fines, a license suspension, probation, and possibly even incarceration. However, it may be possible to avoid some or all of these repercussions. Sometimes a carefully negotiated plea bargain can reduce or eliminate punishment. In other cases, it may be possible to create reasonable doubt of the driver’s guilt and win an acquittal.

Evading arrest is another California offense with extremely serious repercussions. Anyone who fails to stop for police when requested to do so may be charged with this offense. Drivers who fail to stop for police are often charged with evading with reckless driving, a more serious offense. If someone other than the driver is hurt or killed during a police pursuit or other attempt to stop the driver, the motorist likely will be charged with evading causing injury or death, which is a very serious offense.

If a driver charged with hit-and-run or evading arrest is found to have a BAC of .08 percent or greater, or if alcohol or drugs were a factor in the incident, the motorist will also be charged with driving under the influence. These are complex cases that require expert legal representation.

Criminal Defense Attorneys in California

The knowledgeable defense attorneys of The Kavinoky Law Firm have the experience needed to effectively defend any vehicular offense and will stand up for the driver’s rights and freedom. To learn more about effective defenses to California DUI, hit-and-run, or evading arrest charges, contact a skilled defense lawyer today for a free consultation.

When arrested for a California sex crime, the accused is permitted to post bail, to be released on his or her own recognizance (also referred to as OR release) or the offender will be denied bail, based on the specific crime or crimes alleged. Whether or not the individual’s bail may be modified without a hearing will also depend on the charged offense. An experienced sex crime defense attorney is the key to navigating this system with ease and understanding.

The bail for certain sex offenses will be set according to a bail schedule. These offenses include those that involve obscene materials, rape (when the alleged victim is incapable of consenting due to a mental or physical disorder or when he or she is unconscious, under the influence or submits under the false belief that the perpetrator is his or her spouse), statutory rape, spousal rape (when the alleged victim is under the influence or unconscious or is threatened by incarceration or deportation), oral copulation (with a minor over 14 or under the circumstances described above under rape), sodomy (with a minor over 14, under the same circumstances or when threatened by incarceration or deportation), sexual penetration (under the same circumstances), indecent exposure, prostitution, pimping, pandering, bigamy,incest, sexually assaulting an animal, abduction for marriage, contributing to the delinquency of a minor or situations where a public entity employee engages in sexual activity with an involuntarily committed resident.

With respect to the above offenses (some being misdemeanors, some being felonies), the bail may be modified upon an application that may be submitted by the arresting officer, by the defendant or by anyone on his or her behalf. Public safety will be the main consideration for the court in determining whether or not to raise or lower the set bail or whether to release the accused OR.

Certain sex crimes require that a hearing be held before the accused may have his or her bail modified. These crimes include lewd or lascivious acts with a child under 14, sexual penetration with a child under 14 who is also more than 10 years younger than the accused, and the continuous sexual abuse of a child. When a hearing is held, the judge will primarily consider public safety, but will also consider the defendant’s flight risk, his or her prior criminal history and the severity of the pending case. When considering these issues, the judge presumes that the accused is guilty, which is another reason why it is imperative for the accused to have a skilled criminal defence attorney who knows how to persuade the judge otherwise..

There are certain sex offenses where bail doesn’t apply, because they are considered so serious. These include rape, spousal rape, oral copulation,sodomy, sexual penetration or lewd or lascivious acts performed on or with a child under 14 where force or threats were used to accomplish any of these acts, or where the accused acted in concert with another while committing or attempting to commit these offenses.

If arrested on a bailable offense and denied an OR release, the accused can elect to post cash bail or a bail bond. If the accused posts cash bail, he or she remits the full bail amount, which will be returned at the conclusion of the case if he or she attends all court appearances. If the accused posts a bail bond (the more commonly-used option), he or she pays a bail agent or bondsman 10% of the bail amount and the agent then pays the rest. The bondsman may also require additional collateral, which he or she may keep or sell if the bond isn’t refunded at the conclusion of the case due to the defendant’s failure to appear.

The outstanding attorneys at The Kavinoky Law Firm are unsurpassed in California sex crime defense. They are dedicated to helping their clients get released from custody as quickly and inexpensively as possible, and providing the best defense throughout the entire criminal court process. Contact them today for a free consultation.

 

It’s a crime in California to leave the scene after being involved in or causing an accident. Any driver who does so can be charged with misdemeanor or felony hit-and-run. The severity of the charges depends on whether the accident involved property damage, bodily injury, or death. Regardless of the charges, it’s imperative to have an expert defense attorney protecting the driver’s rights. The skilled defense lawyers of The Kavinoky Law Firm are experienced in every aspect of defending California hit-and-run cases, and will work hard to minimize or even eliminate the consequences for a driver charged with leaving the scene of an accident.

Leaving the scene of an accident that involves only property damage is a less serious offense in California than hit-and-run involving bodily injury or death, but the driver still faces serious repercussions. A driver convicted of hit-and-run with property damage – even if the driver didn’t cause the accident – faces punishment up to a $1,000 fine and six months in jail. In some cases, the driver also must forfeit the vehicle.

If the driver is alleged to have been under the influence of alcohol or drugs at the time of the hit-and-run crash, there may be a DUI / DWI charge in addition to any allegations of leaving the scene of an accident. A motorist convicted of drunk driving and hit-and-run faces extreme consequences that can include prison time. These are extremely serious charges that require an expert defense attorney.

Fortunately, a driver who is accused of leaving the scene of an accident in California has many options available that may help to soften or even eliminate the consequences of a hit-and-run charge. The first option is to aggressively fight the charges. There are many viable defenses to a California hit-and-run charge. Remember, the prosecutor has the burden of proving the driver’s guilt beyond a reasonable doubt. The defense could offer no evidence at all of the driver’s innocence, and if the prosecutor hasn’t proven the case beyond a reasonable doubt, the driver cannot be convicted.

In some cases, it may be possible to reach what is known as a civil compromise, in which the accused driver agrees to pay for all property damage and medical expenses, if any. If the other party agrees to a civil compromise and the accused driver reimburses all expenses, no criminal charges will be filed in connection with the alleged hit-and-run accident.

Certain cases require creative resolutions on the part of both the defense and the prosecution. The driver may be eligible for alternative sentencing such as community service or other options that can reduce or even eliminate a potential jail sentence. Other options may include CalTrans work or electronic monitoring. Although some sentencing alternatives may seem less than desirable, anything that helps the accused hit-and-run driver avoid time in jail is well worth considering.

Another option in a California hit-and-run case is a plea bargain. With the help of an experienced defense lawyer, the driver may be able to plead guilty to a lesser charge with reduced repercussions. However, a plea bargain should be just what the name implies – a good deal for both the driver and the prosecutor. The prosecution is more likely to offer a favorable plea bargain when it’s case isn’t particularly strong.

Regardless of the circumstances surrounding a California hit-and-run arrest, the experienced defense lawyers of The Kavinoky Law Firm will be able to reduce or even eliminate the consequences. Contact a skilled defense attorney today for a free consultation.

New California Driving Laws for 2009

As of January 1, 2009, a host of new driving laws went on the books in California, and being aware of these statutes will help you avoid trouble with the law in the New Year. As always, if you have any questions about any California Vehicle Code, feel free to contact an attorney from The Kavinoky Law Firm at 1.877.466.2833 for more information.

Perhaps the most talked-about new law is California’s ban on texting. As of January 1, it’s against the law to type, send, and read electronic messages while behind the wheel. Like California’s law requiring the use of hands-free cell phones while driving, the new text-messaging ban carries a $20 fine for a first offense and a $50 fine for a second offense, but the state’s “penalty assessment” means the fine will be significantly higher.

Even more importantly, violating either of these laws gives police probable cause to pull you over, which can lead to more serious charges. These types of relatively minor violations can result in an arrest for DUI or another serious offense.

Another new law impacts drivers who are on probation for a California DUI conviction. Under the new zero-tolerance law, drivers on probation for a prior DUI conviction who have any measurable amount of alcohol in their systems will have their driver’s licenses suspended.

California has also lowered the threshold for ignition interlock devices, or IIDs, in DUI cases. In the past, California law required that judges give “heightened consideration” to ordering DUI drivers with a blood alcohol content (BAC) of .20 percent or greater to use an ignition interlock device. The new law lowers the threshold for an IID, which prevents a car from starting if the driver cannot provide an alcohol-free breath sample, to .15 percent.

Beginning in July 2009, drivers who are caught driving after having their licenses suspended for a prior DUI conviction will also be required to use an ignition interlock device. This new law also transfers authority over the use of ignition interlock devices from the courts to the California Department of Motor Vehicles.

New California legislation also requires drivers convicted of DUI or alcohol-related reckless driving – also known as “wet-reckless” – to attend a nine-month alcohol-education program if they’ve been convicted of another DUI or wet-reckless offense within the past decade.

Other changes to the law include new criminal penalties for forging Clean Air stickers, harsher penalties for those who make frivolous 911 calls, and changes to the law that governs where GPS units can be mounted. In the past, mounting the unit on the windshield was against the law. Now drivers can mount the devices in a 7-inch square on the lower passenger side of the windshield or a 5-inch square on the lower corner of the driver’s side.

By keeping yourself informed about California’s ever-evolving vehicle and criminal codes, you can better prepare yourself to stay out of trouble in 2009. And should you ever need us, the experienced California defense lawyers of The Kavinoky Law Firm are here to help. You can contact us at 1.877.466.2833 for answers to all of your questions about California vehicle and criminal codes.

New Laws in 2008

Every year, California adds scores of new laws to the books, and 2008 is no exception. Below is a brief summary of new laws that take effect this year. Unless otherwise noted, each statute took effect on Jan. 1, 2008. If you find yourself on the wrong side of the law this year, please don’t hesitate to contact the skilled defense lawyers of The Kavinoky Law Firm.

One of the most talked-about new laws in California this year is the ban on using hand-held cell phones while driving. This new law, which takes effect July 1, 2008, dictates that drivers can only use hands-free cell phone devices while operating a motor vehicle. Drivers who fail to comply face a $20 fine, which will later increase to $50.

Drivers under the age of 18 will be banned from using any cell phone, even hands-free devices, on July 1, 2008. Minors who violate this law will be subject to a $20 fine, which will later increase to $50.

Under California law, drivers who smoke with a minor in the car now face a $100 fine. This law applies to everyone. However, police cannot stop a vehicle merely to check for smoking; they must have another reason to initiate a traffic stop.

California has passed several new laws pertaining to drunk driving and DUI / DWI. Individuals who are on probation for DUI / DWI are now barred from driving with a blood alcohol content (BAC) of .01 percent or greater. Police can determine the driver’s BAC with a PAS test, or Preliminary Alcohol Screening test, to which the driver is required to submit under California’s Implied Consent law.

Another new California drunk-driving law pertains to driver’s license applications. Beginning July 1, 2008, everyone who applies for a new driver’s license or renews an old one must acknowledge in writing that DUI / DWI offenses that causes death can result in murder charges.

California authorities are also continuing to crack down on drag-racing and speed contests. Any vehicle used in a speed contest, exhibition of speed, or reckless driving on a highway can now be impounded for 30 days.

Another new law on California’s books makes it less likely that you’ll see jailhouse photos of Paris Hilton, Lindsay Lohan, or any other jailed celebrity. Under California law, it is now a misdemeanor for peace officers, government attorneys, or court employees to sell confidential information, photos, or videos from inside secure facilities such as jails. Anyone convicted of selling or soliciting such material faces a $1,000 fine plus forfeiture.

California law now prohibits the unauthorized possession of a cell phone, pager or wireless internet device in jail. Failure to comply is a misdemeanor punishable by a $1,000 fine. Possession of tobacco by inmates is now a $250 infraction.

A series of amendments went into effect Jan. 1, 2008 that change existing law. For example, California recently amended the law to add parking enforcement officers to the list of assault victims whose assailants can receive enhanced penalties.

Another amended law requires courts hearing domestic violence cases to consider issuing a 10-year restraining order against defendants sentenced to prison, jail or probation for DV offenses. Another amended section of the California Penal Code increases the notification time of victims and family members in domestic violence and child-abuse cases from 45 to 60 days.

Another new law requires pet owners to inform the victim of a dog bite within 48 hours of the owner’s name, address, telephone number, the dog’s name, license number and vaccination status. Anyone who fails to comply is guilty of an infraction and must pay a $100 fine.

California criminal law is extremely complex, and as you can see, more laws are added every year. If you’re facing California criminal charges, you need an expert defense lawyer at your side who will fight aggressively for your rights. The experienced attorneys of The Kavinoky Law Firm are ready to defend you on any California criminal charge. To learn more about effective defenses to California criminal charges, including DUI / DWI, domestic violence, drug charges, white-collar crime, or any other offense, contact us today for a free consultation.

The U.S. Supreme Court has ruled that criminal suspects’ statements can be used against them if they fail to invoke their rights.

The court ruled 5-4 that criminal suspects have a duty to invoke the rights outlined in the historic Miranda vs. Arizona decision, including the right to remain silent and to have an attorney present during questioning. In the past, the court held that the government had the burden of demonstrating that a suspect had knowingly and intelligently waived his rights.

Tuesday’s ruling addressed a Michigan case where a man was convicted of murder based largely on his one-word response to a question after nearly three hours of interrogation.  His conviction was overturned by an appeals court that ruled that using his answer to convict him violated his right against self-incrimination. The Supreme Court’s ruling overturned that decision.
Our constitutional rights have eroded considerably in recent years, so it’s more important than ever to have a skilled defense lawyer on your side if you’re under investigation for a criminal charge.  The top California defense attorneys of The Kavinoky Law Firm are well-known for standing up for the rights of their clients, and will do everything possible to protect you during a criminal investigation. Contact a skilled California defense lawyer today at 1-800-NO-CUFFS for a free consultation.

A new year brings new laws in California, and 2010 is no exception.  There are a number of new laws on the books that impact convicted DUI drivers and certain individuals charged with California theft or other property crimes. Another new law increases the amount of time credit earned by certain inmates in California county jails and prisons.  Yet another new law prevents authorities from sending low-level, non-violent offenders back to prison for parole violations. As in every year, the list of new California laws is lengthy, so we’ve summarized the most noteworthy ones here. If you have any questions about any of these new laws and how they will affect your case, you can always contact The Kavinoky Law Firm at 1-800-NO-CUFFS.

Two new laws will impact many individuals convicted of DUI. AB 91 creates a pilot program that requires every driver convicted of DUI in Los Angeles, Alameda, Sacramento and Tulare counties – even first offenders – to install and use an ignition interlock device.  The law will remain in effect until 2016, when the pilot program may be extended and expanded to include other counties.

SB 598 is a bill that will allow DUI offenders to obtain restricted driver’s licenses sooner than they would otherwise if they install and use an ignition interlock device.  Convicted DUI drivers will still have a certain period of “hard” suspension when they are not allowed to drive at all, but that hard suspension will be shortened by installing an ignition interlock device.

A new law that takes effect January 25, 2010 increases the dollar amount that determines whether more than 30 theft and property crime offenses can be charged as felonies rather than misdemeanors.  For example, the threshold for a felony charge of writing a check with non-sufficient funds increased from $200 to $400. The limits for some offenses, such as theft of currency or jewelry, remain unchanged.

Certain individuals serving time in California county jails will earn more time credits than before under another new law that takes effect on January 25, 2010. In the past, inmates in county jails earned two days of credit for every four days spent in custody. Under the new law, they will earn two days of credit for every two days served.  Some defendants are excluded from earning the additional credit for time served. They include individuals convicted of violent felonies who are limited to a 15-percent reduction credit under California Penal Code section 2933.1; those required to register as sex offenders; and individuals convicted of serious felonies or with prior convictions for serious felonies. Up to six weeks of additional credit can also be earned by many state prison inmates who complete certain prison programs.

Another new law that takes effect January 25, 2010 prevents certain individuals from being returned to prison for parole violations. The individual cannot be returned to prison for a parole violation if all of the following are true: he or she is not required to register as a sex offender, wasn’t convicted of a serious felony, doesn’t have a prior conviction for a serious felony, wasn’t convicted of a sex crime, wasn’t found guilty of a serious disciplinary offense, isn’t a validated gang member or associate, didn’t refuse to sign a notification of parole conditions, and wasn’t determined in an evaluation to have a high risk of reoffending.

Understanding California’s complex criminal statutes and the many new laws that are passed each year is difficult. Fortunately, the knowledgeable California defense attorneys of The Kavinoky Law Firm ensure that they’re up on the latest developments in the law, so that you don’t have to.  If you have any questions about any aspect of your California criminal case, please don’t hesitate to call us today at 1-800-NO-CUFFS.

New California Driving Laws for 2009

As of January 1, 2009, a host of new driving laws went on the books in California, and being aware of these statutes will help you avoid trouble with the law in the New Year. As always, if you have any questions about any California Vehicle Code, feel free to contact an attorney from The Kavinoky Law Firm at 1.877.466.2833 for more information.

Perhaps the most talked-about new law is California’s ban on texting. As of January 1, it’s against the law to type, send, and read electronic messages while behind the wheel. Like California’s law requiring the use of hands-free cell phones while driving, the new text-messaging ban carries a $20 fine for a first offense and a $50 fine for a second offense, but the state’s “penalty assessment” means the fine will be significantly higher.

Even more importantly, violating either of these laws gives police probable cause to pull you over, which can lead to more serious charges. These types of relatively minor violations can result in an arrest for DUI or another serious offense.

Another new law impacts drivers who are on probation for a California DUI conviction. Under the new zero-tolerance law, drivers on probation for a prior DUI conviction who have any measurable amount of alcohol in their systems will have their driver’s licenses suspended.

California has also lowered the threshold for ignition interlock devices, or IIDs, in DUI cases. In the past, California law required that judges give “heightened consideration” to ordering DUI drivers with a blood alcohol content (BAC) of .20 percent or greater to use an ignition interlock device. The new law lowers the threshold for an IID, which prevents a car from starting if the driver cannot provide an alcohol-free breath sample, to .15 percent.

Beginning in July 2009, drivers who are caught driving after having their licenses suspended for a prior DUI conviction will also be required to use an ignition interlock device. This new law also transfers authority over the use of ignition interlock devices from the courts to the California Department of Motor Vehicles.

New California legislation also requires drivers convicted of DUI or alcohol-related reckless driving – also known as “wet-reckless” – to attend a nine-month alcohol-education program if they’ve been convicted of another DUI or wet-reckless offense within the past decade.

Other changes to the law include new criminal penalties for forging Clean Air stickers, harsher penalties for those who make frivolous 911 calls, and changes to the law that governs where GPS units can be mounted. In the past, mounting the unit on the windshield was against the law. Now drivers can mount the devices in a 7-inch square on the lower passenger side of the windshield or a 5-inch square on the lower corner of the driver’s side.

By keeping yourself informed about California’s ever-evolving vehicle and criminal codes, you can better prepare yourself to stay out of trouble in 2009. And should you ever need us, the experienced California defense lawyers of The Kavinoky Law Firm are here to help. You can contact us at 1.877.466.2833 for answers to all of your questions about California vehicle and criminal codes.

 

Friday, June 30, 2006

DRIVING UNDER THE INFLUENCE CHARGES FOR ATV DRIVERS

WOODLAND HILLS, Calif. — Fans of sun and sand are gearing up for fun summer weekends full of riding ATVs and drinking with friends.  However, those who enjoy a few beers before driving an all-terrain vehicle may be in for an unfortunate surprise:  DUI charges can be brought against them, and those charges can be devastating.

In recent years the dangers and illegality of boating under the influence have been emphasized, and many people now know that they can be arrested for drinking and boating. However, many people do not realize that driving an all-terrain vehicle while impaired is just as dangerous and just as illegal.

“The punishments for driving an ATV while intoxicated are identical to those for driving a car under the influence of alcohol,” said California criminal defense attorney Wendy Wittenberg.  “I’ve dealt with many defendants who were arrested and charged with DUI while driving ATVs.  They were all shocked.  They had no idea that it was illegal, or that they could lose their driving privileges and serve jail time.”

According to California law, a person driving any vehicle on a public highway can be arrested for driving under the influence if his or her blood alcohol content measures .08 percent or more.  If convicted, this person may have to serve jail time, participate in a DUI school and pay fines.  The Department of Motor Vehicles can suspend the defendant’s Class C driver license even without a conviction.

“Of course, when people are arrested for DUI while driving an ATV, many times they argue that they weren’t on a public roadway.  Unfortunately for these defendants, sand dunes are considered public roadways for the purpose of California driving under the influence laws,” said Wittenberg.  “This means that anyone driving in a sand dune while intoxicated can be arrested for DUI.”

Wittenberg has handled many ATV DUI arrests, and she is beginning to see a trend.  “More and more clients are calling me to help defend DUI charges while driving ATVs.  It probably is not due to more people drinking and driving, but more intense surveillance.”

These arrests can happen in a number of ways.  Many times, ATV drivers are turned in by rangers at the dunes.  These rangers will investigate the situation, and then contact the California Highway Patrol or local police department to report a suspicious driver.  In other instances, citizens can call the arresting officers with information about a suspected drunken driver.  The officers will then drive to the scene to investigate the situation and to possibly arrest the offender.

In addition to being illegal, driving an ATV while intoxicated is dangerous.  In the last 20 years, there have been more than 300 ATV-related deaths in California.  It is assumed that at least some of these accidents were due to intoxication of the driver.

“It’s important to use common sense about safety while driving in the dunes,” said Wittenberg.  “Drinking and driving is never a good idea, no matter what vehicle is driven.”

Wendy Wittenberg is an attorney at California-based criminal defense firm The Kavinoky Law Firm.  The attorneys of The Kavinoky Law Firm focus on customer service, and they take pride in their one-on-one approach with clients. They work tirelessly to have the best reputation of all criminal defense firms in the state.  www.NoCuffs.com

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For more information, contact Angie Rupert at (818) 346-4646 or [email protected].
Prepared by Angie Rupert.