Archives for May 2018

5 Amazing DUI Defenses

Think your DUI is hopeless?  Think again! This article will explore five major categories of defense tactics that you can discuss with your public defender or private attorney.

  • Asserting your Fourth Amendment Right in relation to the Stop.  

The Fourth Amendment to the Constitution protects you from unreasonable search and seizure. With a DUI, this often comes into play when the officer pulls you over for a traffic stop. The officer needs to have reasonable suspicion that you are committing a crime (a traffic offense counts as a crime for this purpose). The officer must have probable cause to arrest you.  A defense based on the stop or the arrest is one of the most common and effective ways to fight a DUI, and an attorney can help you apply the law to the specific facts of your case.

  • Attacking the Accuracy of the Field Sobriety Tests.

The officer likely performed the field sobriety tests near the street where he pulled you over, and the conditions may have interfered with the accuracy of the testing processes.  Was there heavy traffic that distracted you or made the tests unsafe? Were weather conditions in play that may have impacted your abilities? Was the lighting poor or in your eyes? Was the ground uneven or dangerous? Were there other environmental hazards or distractions that may have impacted your ability to perform on the field sobriety tests? Aside from the environmental factors, the officer’s explanation and execution of the field sobriety tests can also be used to challenge the results.  Did he explain the tests fully and accurately, and were they administered as they were supposed to be? Attacking the accuracy of the field sobriety tests is a very common, but can be a useful way to defend you.

  • Undermining the equipment and methods used in testing.

In any test involving equipment, the equipment must be functioning properly and used properly in order to achieve a reliable result.  For example, if a breath test was administered, you can question whether the equipment was in good, working condition and whether the officer was properly trained to use it. If you can undermine the fact-finder’s confidence in the testing, then you can draw into question whether the results can be relied upon. Along those same lines, you can question the method of the testing.  For example, when did the testing take place? Was it contemporaneous to the driving or much later? The method of testing is as important as the reliability of the equipment itself.

  • Chain of Custody.

Any evidence used in a criminal case has to pass muster when it comes to the chain of custody, which means the prosecution has to be able to trace where the evidence has been from the time it was taken into custody. For example, when police officers take a blood sample in a DUI case or seize evidence of drugs, the evidence will be packaged with a form and each person who comes in contact with the evidence should be noted on the form. If there has been a break down in that procedure, then you can claim that the evidence has been contaminated or tampered with and therefore the evidence is unreliable.

  • Necessity, Duress, Entrapment, Involuntary Intoxication.

The affirmative defenses are not as commonly used because they require circumstances that are somewhat unusual.  If your case falls into this “oddball” group of categories, the affirmative defenses may well suit you. The necessity defense is where you drove under the influence for a greater good – for example, to race someone to the hospital to save a life. Duress is when you are forced to drive under the influence under threat of your life of safety, such as if you drove while intoxicated because someone threatened to kill you if you didn’t.  Entrapment very rarely arises or if it does, it would be difficult to prove, but an example would be where the police officer requests that the person drive while intoxicated to “set the trap” to arrest that person Involuntary would be where someone was given drugs or alcohol without their knowledge or consent.

 

Filed Under: DUI, Legal Advice, Vacaville Attorney

Wet Reckless and DUI in California

Have you heard about friends or family getting a DUI charge reduced to a Wet Reckless?  This will tell you what it means, when it’s done, and how it can help you.

What is a “Wet Reckless”?

A “wet reckless” is a nickname for a charge of reckless driving involving alcohol or drugs.  It is a common reduced charged from a plea bargain.

Will the prosecutor agree to a Wet Reckless?

There are no hard and fast rules as to when a prosecutor will agree to a Wet Reckless plea bargain, but your chances are higher depending on your BAC and whether there are evidence problems in the prosecution’s case against you.

What are the advantages of a Wet Reckless plea bargain?

    • Shorter max penalty:  The maximum jail time is shorter, so if you violate probation then you face a shorter max jail penalty.
  • Shorter minimum penalty: If this is your second or third DUI within a ten year period, then certain mandatory jail sentences will apply. If you enter a plea to wet reckless instead of DUI, then the conviction only requires five days in jail regardless of your prior history.
  • Shorter probation period.  Wet reckless often has a shorter probation period than a typical DUI.
  • DUI School:  You’ll likely have a shorter DUI school with wet reckless than DUI.  
  • Fines:  Penalty assessments that are lower for Wet Reckless than DUI may make the total cost of a Wet Reckless less expensive than a DUI.
  • License advantages:  A wet reckless plea may help out on the license suspension from the court, but there is also the DMV license suspension – so it may or may not impact your driver’s license.

Don’t get too excited about a Wet Reckless because it still packs a punch in many ways:

    • Insurance Company: The insurance company will likely still ding your record with the Wet Reckless.
    • Repeat Offender:  If you get another DUI within ten years after your Wet Reckless, you’ll still be considered a repeat offender, even though Wet Reckless is different than a DUI.
  • License Suspension: The DMV can still take your license.  

 

 

Filed Under: DUI

Common Questions About Your Divorce in California

This article will examine some of questions that are commonly asked about the divorce process in California.  It will help you get a broad overview of the process and understand what to expect.

Do I have to wait 6 months to get divorced in California?

Yes, although the waiting period can be challenging for couples, six months is the minimum and its common for the divorce process to take longer than six months.

Can I remarry during the waiting period?

No, unfortunately you can’t remarry while you are waiting for the divorce to be finalized.

Why is date of separation important?

The separation date is important in determining what property is community property (must be split) and separate property.

Should I sell or mortgage the house while we are separated?

You’ll want to hold off on making major changes to assets or debts during the separation/divorce process.

Does it matter what state we live in?

Yes, in order to file for divorce in California you or your spouse must have lived in California for at least six months.  You also need to have lived in the county for at least three months.

What are some of the important factors for determining temporary child support?

Important factors in determining child support are each parent’s income and the amount of time each parent takes care of the child.  

Do I need to wait to get spousal support?

Spousal support can be granted with an Order to Show Cause early in the divorce process, so you do not need to wait until the divorce process has progressed for temporary spousal support.

What’s the general timeline of important steps in the divorce process?

  • The first step is a Petition with the Court and serving the Petition on the other spouse.  This marks the beginning of the waiting period.
  • The next step is responding to the Petition and perhaps an order to Show Cause if certain disputes are involved.
  • Hearings or mediation can be scheduled to resolve certain issues.
  • Dividing property is a step that will happen somewhere along the process. As part of this, discovery and disclosure of assets and obligations will be conducted.
  • Settlement Agreements occur where you and your spouse are able to reach an consensus.

While this is not a complete list, it gives an overview of some of the steps in the divorce process and helps you understand important questions relating to your divorce. For answers to specific questions you may have, consult with an attorney who has experience in family law to guide you through the sometimes intricate divorce process.

 

Filed Under: Divorce Lawyer

3 Tips on How to Create a Perfect Parenting Plan for Your Children

A parenting plan is required in every divorce case because it establishes the rules for physical and legal custody for the children.  If you and the other parent can agree, then it is a stipulated plan, or if you cannot agree then the court can establish a parenting plan for you.  You can tailor the parenting plan to the needs of your family, and this article will help you think through some important points you will want to include in the plan.

What are important issues for physical custody you should think through in creating the plan?

  • When will visitation occur
  • How will children be exchanged
  • Holidays, school breaks, special events
  • Accommodations for a parent’s illness or travel
  • Parent wants to relocate
  • Extracurricular activities and lessons
  • Resolving disputes
  • Phone/email/social media access with other parent
  • Military or other prolonged absence
  • Discipline or punishment methods
  • Children’s clothes and other belongings and how they are exchanged
  • Cancelations and delays

What are important issues for legal custody you should think through in creating a plan?

  • Religious attendance
  • Immunizations
  • Medications
  • What school will the children attend
  • Babysitting/Daycare arrangements
  • Emergency care

What needs are specific to your child that should be considered?

  • How old is each child
  • What routines would work best for your child’s personality
  • How do the school schedules of each child fit with the plan
  • What will give your child a sense of security and routine

A parenting plan can be unique and tailored to your children or it can be more general.  If you have questions or need help in formulating a great parenting plan, we here at http://www.davidknechtlaw.com/ can help!

Filed Under: Fairfield Lawyer, Family Law, General Legal Advice

Unusual DUI Defenses

Do not give up just because you have been charged with a DUI.  There may be a myriad of defenses that you can use to inspire reasonable doubt as to the elements that the prosecution must prove to convict you. In a previous article, we discussed some of the Best Common Defenses and Arguments for a DUI.  Here we examine a few ideas to get you thinking outside the box if your case has rare or unusual circumstances. An attorney will be able to evaluate your individual circumstances to spot any defenses that might be successful.

Were you actually “driving”?

In some cases, the police officer didn’t see you driving, so a defense to the DUI may lie in rebutting the circumstantial evidence that you were driving.

  • Did you deny driving?
  • Were there other people in the car?
  • Was the car discovered when it was legally parked?

Watch out here, though, because if the officer observed even a slight movement of the vehicle, then that counts as driving.  Also, watch for circumstantial evidence that that prosecution may use to show that you were driving – i.e. your car was warm, the keys were in the ignition, or close proximity to an accident.

Were you under the influence when driving?

In some instances, such as a hit and run collision or single vehicle collision, the police officer may not have caught up to you at the time of the incident.  If you were drinking right after the alleged incident, then this can call into question whether you were actually under the influence at the time you were driving.  Along similar lines, if your BAC was under the legal limit, but rose to a higher value after you were no longer driving, then this could be another point of defense that you were not under the influence when actually driving.

Do you have any special medical or physical conditions that may have impacted the testing?

Think about any challenges that apply to you specifically.  Do you have a condition that may have affected the blood or breath testing?  Do you have a physical condition that would have impaired your ability on the field sobriety testing?  Was there anything usual about the environmental conditions where the tests were administered?

Police conduct?

In some cases, police misconduct can provide a valuable defense in a case.  Were statements made to indicate racial profiling for the stop? Did the police act improperly in the way that the tests were conducted? Was there anything amiss in the way evidence was handled?

Extenuating circumstances?

Were you forced to drive by some emergency?  Were you given the alcohol or drugs without your consent or awareness?  Although extenuating circumstances may or may not provide a defense to the charge, they can be important argument points in making the case for a plea bargain with the prosecutor.

 

Filed Under: DUI

Best DUI Arguments and Defenses

Although each case varies, this article will cover some of the best DUI arguments and defenses to consider when analyzing your DUI charge

Motion to Suppress Evidence

If your attorney files a Motion to Suppress Evidence and it is granted, then that evidence can’t be used against you by the prosecutor.  This is often used in the context of the traffic stop, where the motion argues that the officer didn’t have reasonable suspicion to stop you.  If successful, this can be a powerful arrow in your DUI defense arsenal.

Legitimate Reasons for the Signs of Intoxication

Are there legitimate reasons for the signs that the officer observed, which are circumstantial evidence against you?  For example, do you have dry eyes that cause redness? Do you have a speech impediment that causes slurred speech? Could your symptoms be explained by fatigue?  Plausible explanations for the symptoms can be a good argument to oppose the evidence of intoxication.

Field Sobriety Tests

There are many ways to attack the field sobriety test evidence:  Do you have a physical limitation or are you taking medications that inhibit your ability to successfully complete?  Were they adequately explained and administered by the officer? Were there environmental factors such as weather, traffic, or the surface where the tests were performed that could impact the testing?

Faulty Testing

Here again, there are many ways to attack the reliability of blood or breath testing.  Was the device working? Were there medications or medical conditions that could have impacted the testing? Was the testing done properly? Was the evidence placed in a proper chain of custody?

* Acid Reflux Defense – this is a subset argument that alleges that acid reflux (a medical condition) can cause the BAC reading to be falsely higher

* Rising BAC level – a valuable subset argument to testing is the rising BAC defense, which alleges that the BAC rose between the time the defendant was driving and when the test was administered.  

    This is not an exhaustive list of DUI defenses, as the possibilities are as individual and unique as the particular facts of your case.  This list explains some of the commonly utilized defenses to help you and your attorney begin building a proper defense strategy.

 

Filed Under: DUI