Category: Weapons Offenses

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California Vehicle Code VC 23614 – Breath and Chemical Testing: Advisement

Posted by on May 4, 2012

23614. (a) In addition to the requirements of Section 23612, a person who chooses to submit to a breath test shall be advised before or after the test that the breath-testing equipment does not retain any sample of the breath and that no breath sample will be available after the test which could be analyzed later by that person or any other person.

(b) The person shall also be advised that, because no breath sample is retained, the person will be given an opportunity to provide a blood or urine sample that will be retained at no cost to the person so that there will be something retained that may be subsequently analyzed for the alcoholic content of the person’s blood. If the person completes a breath test and wishes to provide a blood or urine sample to be retained, the sample shall be collected and retained in the same manner as if the person had chosen a blood or urine test initially.

(c) The person shall also be advised that the blood or urine sample may be tested by either party in any criminal prosecution. The failure of either party to perform this test shall place neither a duty upon the opposing party to perform the test nor affect the admissibility of any other evidence of the alcoholic content of the blood of the person arrested.

(d) No failure or omission to advise pursuant to this section shall affect the admissibility of any evidence of the alcoholic content of the blood of the person arrested.

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 23558 – Multiple Victims: Enhanced Penalty

Posted by on May 4, 2012

California Vehicle Code VC 23558 – Multiple Victims: Enhanced Penalty

23558. Any person who proximately causes bodily injury or death to more than one victim in any one instance of driving in violation of Section 23153 of this code or in violation of Section 191.5 of, or paragraph (3) of subdivision (c) of Section 192 of, the Penal Code, shall, upon a felony conviction, and notwithstanding subdivision (g) of Section 1170.1 of the Penal Code, receive an enhancement of one year in the state prison for each additional injured victim. The enhanced sentence provided for in this section shall not be imposed unless the fact of the bodily injury to each additional victim is charged in the accusatory pleading and admitted or found to be true by the trier of fact. The maximum number of one year enhancements which may be imposed pursuant to this section is three.

Notwithstanding any other provision of law, the court may strike the enhancements provided in this section if it determines that there are circumstances in mitigation of the additional punishment and states on the record its reasons for striking the additional punishment.

Added Sec. 84, Ch. 118, Stats. 1998. Effective January 1, 1999. Operative July 1, 1999.
Amended Sec. 15, Ch. 706, Stats. 1999. Effective October 10, 1999.

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California Vehicle Code VC 23229.1 – Possession of Alcohol in Limousine: Passengers Under Age 21

Posted by on May 4, 2012

California Vehicle Code VC 23229.1 – Possession of Alcohol in Limousine: Passengers Under Age 21

23229.1. (a) Subject to subdivision (b), Sections 23223 and 23225 do apply to any charter-party carrier of passengers, as defined in Section 5360 of the Public Utilities Code, operating a limousine for hire when the driver of the vehicle transports any passenger under the age of 21.

(b) For purposes of subdivision (a), it is not a violation of Section 23225 for any charter-party carrier of passengers operating a limousine for hire which is licensed pursuant to the Public Utilities Code to keep any bottle, can, or other receptacle containing any alcoholic beverage in a locked utility compartment within the area occupied by the driver and passengers.

(c) In addition to the requirements of Section 1803, every clerk of a court, or judge if there is no clerk, in which any driver in subdivision (a) was convicted of a violation of Section 23225 shall prepare within 10 days after conviction, and immediately forward to the Public Utilities Commission at its office in San Francisco, an abstract of the record of the court covering the case in which the person was convicted. If sentencing is not pronounced in conjunction with the conviction, the abstract shall be forwarded to the commission within 10 days after sentencing, and the abstract shall be certified, by the person required to prepare it, to be true and correct.

For the purposes of this subdivision, a forfeiture of bail is equivalent to a conviction.

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

Added Ch. 1105, Stats. 1988. Operative July 1, 1989.

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California Vehicle Code VC 23140 – Alcohol: Persons Under 21

Posted by on May 4, 2012

California Vehicle Code VC 23140 – Alcohol: Persons Under 21

23140. (a) It is unlawful for a person under the age of 21 years who has 0.05 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.

(b) A person may be found to be in violation of subdivision (a) if the person was, at the time of driving, under the age of 21 years and under the influence of, or affected by, an alcoholic beverage regardless of whether a chemical test was made to determine that person’s blood-alcohol concentration and if the trier of fact finds that the person had consumed an alcoholic beverage and was driving a vehicle while having a concentration of 0.05 percent or more, by weight, of alcohol in his or her blood.

(c) Notwithstanding any provision of law to the contrary, upon a finding that a person has violated this section, the clerk of the court, or judge if there is no clerk, shall prepare within 10 days after the finding and immediately forward to the department an abstract of the record of the court in which the finding is made. That abstract shall be a public record and available for public inspection in the same manner as other records reported under Section 1803.

Amended Ch. 938, Stats. 1994. Effective September 28, 1994.

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California Vehicle Code VC 23109.5 – Speed Contests: Prior Convictions

Posted by on May 4, 2012

California Vehicle Code VC 23109.5 – Speed Contests: Prior Convictions

23109.5. (a) In any case charging a violation of subdivision (a) of Section 23109 and where the offense occurs within five years of one or more prior offenses which resulted in conviction of violation of subdivision (a) of Section 23109, the court shall not strike any prior conviction of those offenses for purposes of sentencing in order to avoid imposing, as part of the sentence or term of probation, the minimum time of imprisonment, as provided in subdivision (f) of Section 23109, or for purposes of avoiding revocation, suspension, or restriction of the privilege to operate a motor vehicle, as provided in Section 13352 or 23109.

(b) In any case charging a violation of subdivision (a) of Section 23109, the court shall obtain a copy of the driving record of the person charged from the Department of Motor Vehicles and may obtain any records from the Department of Justice or any other source to determine if one or more prior convictions of the person for violation of subdivision (a) of Section 23109 have occurred within five years of the charged offense.

Added Ch. 953, Stats. 1983. Effective January 1, 1984.

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California Vehicle Code VC 21203 – Hitching Rides

Posted by on May 4, 2012

California Vehicle Code VC 21203 – Hitching Rides

21203. No person riding upon any motorcycle, motorized bicycle, bicycle, coaster, roller skates, sled, or toy vehicle shall attach the same or himself to any streetcar or vehicle on the roadway.

Amended Ch. 813, Stats. 1981. Effective January 1, 1982.

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California Criminal Defense Attorney – Traffic Accidents

Posted by Brianna Wilkins on May 4, 2012

California Criminal Defense Attorney – Traffic Accidents

A DUI / DWI charge in California actually results in two separate cases. A driver faces a California DMV case and a California criminal case. Each case must be dealt with as soon as possible in order to avoid unnecessary negative repercussions. A qualified lawyer who focuses on drunk driving defense can handle both aspects of the case. In California DMV cases a person arrested on suspicion of drunk driving has ten days within the date of arrest to request a DMV hearing or the Department of Motor Vehicles will automatically begin a process of suspending the person’s license to drive.

In the criminal case people will face enhanced sentences for causing a traffic accident while driving under the influence. The driver does not have to enter a guilty plea. An accomplished and experienced DUI / DWI attorney can fight the case and win. Oftentimes it takes costly resources to fight a drunk driving case, and the issues are complex, but it is possible to win a case with the right legal counsel with a great strategy for success.

When a driver is convicted of driving under the influence of alcohol in California, he or she can face additional sentence enhancing charges. The most common allegations made for such sentencing enhancements are speeding, having children in the car, or causing an injury or traffic accident. If a driver is convicted on these charges, the court is likely to hand down a harsh punishment. Because of the staggering penalties that one may face if convicted of sentence enhancing charges, it is wise to consult with a California criminal defense attorney to find out how you can fight or settle the charges.

When a person who is accused of driving under the influence of alcohol or drugs causes an accident or causes an accident that injures another person, he or she will be charged with a felony DUI. When a driver is convicted of both driving under the influence and of causing an accident, the court can order a 90 day jail sentence that must be served in addition to any other punishments handed down in the case.

Traffic accidents that cause injuries are taken seriously by prosecutors and judges. Sentences are tough because lawmakers are trying to send a strong message to people to avoid the roads when they are intoxicated.

Prosecutors may offer a plea bargain to a driver who caused an accident. When it is obvious that the driver did in fact cause the accident, it may be best to accept a deal from the prosecutor. When one is accused of a sentence enhancing charge, it is best to consult with a California DUI / DWI attorney who is well versed in all aspects of drunk driving law. The law is complex and negotiations with prosecutors can depend on knowledge of such complexities. Sentence enhancing charges are serious and should not be tackled without the help of a competent attorney who may be able to have charges reduced or dismissed by way of compromise.

Driving Under the Influence (DUI) Investigation

Posted by Brianna Wilkins on May 4, 2012

Driving Under the Influence (DUI) Investigation

There is an abundance of circumstances that can lead to an arrest for a California DUI / DWI. Maybe you and your date shared a bottle of wine at dinner and in your excitement to get back to your house a police officer pulled you over for speeding and detected the smell of alcohol on your breath. Or maybe you had one too many at a friend’s wedding and got stopped by a police officer when you failed to come to a complete stop at an intersection. Or perhaps you hit a sobriety check point on the way from the beach over the holidays. The point is that a drunk driving arrest can happen to almost anyone at any time and if this happens it is a good idea to speak with a California driving under the influence lawyer immediately.

But just because you were stopped in your car does not automatically mean that the stop was legal and that the evidence of alcohol in your blood or on your breath is admissible as evidence against you in a court of law. In the United States, police need specific legal reasons for pulling your car over and conducting a DUI investigation. If the police did not follow the law in stopping your car and during the ensuing driving under the influence investigation, then a qualified and experienced criminal defense lawyer should be able to get the evidence gathered against you during that stop and investigation suppressed. If your one of your California DUI lawyer can convince the judge to suppress the evidence, the prosecution will not be able to use the evidence against you. Without use of such evidence, the case is likely to be dismissed.

A lawful DUI / DWI investigation can be triggered by one of three events: Police observation of a law violation, police observation of a driving pattern so suggestive of driving under the influence of alcohol or drugs so as to provide a reasonable suspicion that a crime has taken place, or a lawful roadblock or checkpoint. If none of these conditions are present, any evidence gathered during the traffic stop likely will be suppressed.

Did you know that the National Highway Traffic Safety Administration does not recognize speeding as a drunk-driving pattern? Therefore, if a police officer offers the fact that you were speeding as his reason for instigating a drunk-driving investigation, skilled and experience California criminal defense lawyers may be able to convince the judge to suppress the evidence gathered in that investigation.

Today in California, the courts have ruled that police officers are allowed to stop a car based simply on a tip from an anonymous caller who believes that that the driver of the car is somehow under the influence. However, this does not mean the police do not need to conduct themselves within the law. If they carry out an investigation that is not warranted based on what they themselves observe, a California DUI attorney or DWI lawyer with experience and know how may convince a judge that the officer went beyond what the law allows and get the evidence suppressed.

A recent trend in the state’s efforts to curb drunk driving is the sobriety roadblock or checkpoint. While these are legal methods of stopping a driver, there are strict rules that the police must conform to when operating a drunk-driving roadblock or checkpoint. If any of these rules are violated, a good criminal defense attorney may be able to have the evidence obtained at the roadblock or checkpoint suppressed.

Generally a person facing drunk driving charges in California faces two different charges, one charge is for driving under the influence of alcohol and drugs and the second is for driving with a blood alcohol content (BAC) of .08 percent or higher. This second charge is known as a per se violation. The per se violation means that if your blood alcohol content was .08 percent or higher, and the traffic stop and DUI investigation were legal, then the charge will be considered per se (by operation of the law) that you were too drunk to drive.

When one fights a drunk driving defense case, the prosecutor does not have a simple job in getting a conviction. There are several hurdles a prosecutor must get over before a jury can find beyond a reasonable doubt that you were in fact drunk while you were driving. It is important to remember concerning the .08 percent per se law that the case is not about whether at some point in the evening your blood alcohol level was .08 percent or higher, but rather whether your blood alcohol level was .08 percent or higher when you were driving.

Oftentimes a chemical test will be taken sometime after you were driving, many times an hour or more later. A skilled and knowledgeable California DUI lawyer or DWI defense attorney can cast doubt upon a case by showing a jury that there is reasonable doubt whether a driver’s blood alcohol level was in fact above the legal limit during the time the person was actually driving.

DUI prosecutions are generally driven by four different categories of evidence: Driving pattern, physical signs and symptoms, field sobriety test performance, and chemical test results. If there is an investigative failure in any one of these areas, the driving under the influence prosecution will be in serious trouble. The best way to fight a drunk-driving case is to consult with an experienced DUI / DWI attorney as soon as possible.

California DUI criminal defense lawyer Darren T. Kavinoky of The Kavinoky Law Firm has successfully defended hundreds of drunk driving defense cases by creating reasonable doubt in one or more of these critical areas of the prosecution. Contact Darren 24 hours a day, seven days a week for a free consultation..

Superior Court Of California, County of Santa Clara

Posted by Brianna Wilkins on May 4, 2012

Superior Court Of California, County of Santa Clara

If you have been arrested for Driving Under the Influence of alcohol or drugs in the state of California, it is important to know the location of the courthouse where your arraignment will be held. If there are multiple courthouses in the county, please contact a skilled California DUI / DWI defense attorney for more information.

Downtown Superior Court
191 N First Street, San Jose, CA 95113

Hall of Justice
190 W. Hedding Street, San Jose, CA 95110

Terraine Courthouse (Drug Court)
115 Terraine Street, San Jose, CA 95113

Santa Clara Courthouse
1095 Homestead Road, Santa Clara, CA 95050

Sunnyvale Courthouse
605 W. El Camino Real, Sunnyvale, CA 94087

Palo Alto Courthouse
270 Grant Avenue, Palo Alto, CA 94306

South County Courthouse
12425 Monterey Road, San Martin, CA 95046

Notre Dame Courthouse
99 Notre Dame Avenue, San Jose, CA 95113

Los Gatos Courthouse
14205 Capri Drive, Los Gatos, CA 95032

Traffic Court
935 Ruff Drive, San Jose, CA 95110

» Santa Clara County Superior Court of California website.

Getting arrested on suspicion of DUI / DWI can be a frightening experience. Suspected drunk drivers face a legal labyrinth that can seem daunting. A drunk driving case generates two separate cases – in criminal court, and at the Department of Motor Vehicles (DMV). A California attorney with experience defending drinking and driving cases can help drivers navigate through both the DMV hearing and the court case.

» Return to California Superior Courts, general information

Should the Defendant Testify?

Posted by John Devendorf on May 4, 2012

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.