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.

 

4 Potential Consequences of Your Second DUI

If you are facing your second DUI, you are probably somewhat familiar with the process and the punishments. Don’t give up on your case, as you may have defenses and arguments that can get the charges dismissed or reduced. This article is to give you an idea of what consequences you are facing if your defenses are not successful to help you understand the worst case scenario, and it assumes you are 21 or over.  

Driving Consequences

  • Suspended License:  The DMV will automatically suspend your license for a year on a second DUI. You could have your licenses suspended for up to 2 years. The court suspension is two years, which can be run concurrently with the DMV suspension. It’s possible to apply for a restricted license after three months of DMV suspension.  
    • You need to request a hearing with the DMV within 10 days if you want to dispute the DMV suspension.
  • Interlock Device:  The judge can order you to get an interlock device on your vehicle, which measures your breath alcohol every time you drive.
  • SR-22 Insurance. If you don’t win the DMV hearing or don’t dispute it, and your license is suspended, you will need to get a special type of automobile insurance called SR-22 insurance for three years.

Court Ordered Counseling and Probation

  • 18 Month Programs:  If this is your second conviction in 10 years, you will likely be ordered to complete an 18 month program.  For a third offense, you would typically be looking at a 30 month program. You may also be ordered to attend AA, or Mother’s Against Drunk Driving (MADD) or other programs.
  • Probation: Probation is typically 3-5 years.

Jail Time – Max is 1 year

  • Jail Time:  Minimum of 96 hours in county jail, and maximum of one year jail time.

Financial Consequences

  • Fines, penalties and costs. The court at its discretion will impose a fine of between $1800- $2700. Additionally, you will likely incur costs of defense attorney, costs for counseling, interlock device, and SR-22 insurance. The total cost can be very expensive, but consult with your attorney for an estimate of total costs.

 

Men:  Who to Turn To If You Can’t Save Your Marriage and Divorce Is Imminent

Men, we know that it can be rough on you when you want to save your marriage, but you feel like there are issues that just can’t be resolved. When you reach that point, you may wonder what you should do to plan for the future.  Who should you turn to? This article will help you navigate the troubles that may come your way soon.

It’s never too early to educate yourself:  Consult an attorney who is experienced in divorce law.

Knowledge is power.  So, whether you’ve made the final decision or whether you are still in the mix of determining what to do, it’s never too early to consult with someone who can give you advice about your exact circumstances and assets. Here are some things you’ll want to discuss:

  • Children: discuss with your attorney how you can plan custody to best accommodate your work schedule and other commitments.
    • For example, what is your work schedule?  What is your spouse’s work schedule or does she primarily take care of the kids? Do you plan to move out of state?
  • Assets: Divorce is expensive for both parties because the assets will be split. Talk with your attorney about the assets you have and your preferred means of managing them in a divorce.
    • For example, do you want to sell the home or keep one spouse in it? Do you have a preference on dividing the cars?  Are there assets that have sentimental value or are meaningful to you in a way that goes beyond their monetary value?
  • Debts:  If you have school loans, car loans, credit card debt, mortgage debt, or any other kinds of debts, you need to plan for the division of these debts with your attorney.
    • Consider in advance any court costs that will be involved in the divorce, mediation fees, and legal fees.

Protect Your Mental Health and Amp up Your Physical Well-Being:  Turn to friends and family and other trusted advisors for encouragement.   

Plan for a tough time ahead. No matter how bad a marriage is, a divorce can still take a toll on both parties because it is a change. Things will be different.

  • Understand and anticipate powerful emotions.  During a divorce you may experience greater emotions of isolation, discouragement, despair, anger or bitterness.  Prepare for this by bolstering your own mental toughness.
    • Reach out to old friends. Go to lunch or the gym. Remember the good times.
    • Although you may not want to tell your family that divorce is imminent, it doesn’t hurt to contact them and renew family bonds so that those relationships are close for when you need the support.
  • Amp up your physical health. It’s common for men to forego their regular exercise or to take on bad eating habits during stressful events in their lives, and a divorce is commonly a stressful event that takes its toll on men’s health.
    • Do what works for you to keep yourself feeling good. Whether that’s setting fitness or nutrition goals, or working out with a buddy, or finding more time to be in nature, or running, etc., you need to do what works best for you personally to maintain good health.

Hard times are an inevitable part of a man’s life, and many guys will confirm that a divorce can be challenging.  If you prepare yourself with knowledge, protect your mental health, and amp up your physical well-being, you will be in a strong position to make the most out of the divorce process.

 

What Does It Mean to Establish Parentage and When Is It Necessary?

If you are having a baby, you may be wondering what you can do to protect your baby’s rights. You want your child to have all the support he or she needs from the father. Establishing parentage can be an important step for you to take if you are not married to the baby’s father. This article will walk you through some of the basics of establishing paternity and help explain why parentage is important.

  1. What is parentage? What is paternity?

When a child is born to parents who are married (or to parents in a domestic partnership after 2005), then the law presumes that the couple are the child’s parents.  If the parents are not married, then the father only has legal rights and responsibilities if parentage is established.  However, in some cases parentage will be presumed, such as “parentage by estoppel,” where the parent welcomed the child into his home and treated it as his own.

  1. Why is establishing parentage important?

If you want custody, visitation or child support orders from the court, parentage will have to be established. This can also be important in a same-sex parenting situations if the parents were not married when the mother became pregnant or when the child was born.  There are other advantages: having health and life insurance coverage from either parent, the right to inherit from either parent, the right to receive social security and veteran’s benefits, just to name a few.

  1. What if the father does not admit that he is the parent?

A court may order the alleged father, mother and child to be genetic tested in order to establish parentage.

  1. What are the consequences and rights of the parent after parentage is established?

A parent has generally the right to get custody or visitation rights related to the child, although this right may be impacted in some cases by criminal history. A parent also has a legal obligation to financially support the child, but the amount of financial support will vary depending on various factors including income, custody arrangements, etc.

  1. What are the ways to establish parentage when the child’s parents aren’t married or in a domestic partnership?
  • Signing and filing a voluntary Declaration of Paternity – this is a form that both parents voluntarily sign, which established them as the legal parents of the child. The advantage of the voluntary Declaration is that neither parent has to go to court. After the form is signed, it needs to be filed with the California Department of Child Support Services.
  • You local child support agency can bring an action to establish parentage of a child. This often happens as a matter of course when welfare is requested for the child.
  • You can bring your own court case to establish parentage, which will involve several court forms and possibly a trial. You may want to utilize the help of an attorney or an agency to navigate this process.

 

How Do We Divide Our Assets and Debts in Divorce?

Your attorney can help you with a plan for dividing property and debt, but here are three important steps to help you on the path to a successful division of assets and debts:

  1. Write down all property and all debts.

Making a list is the first step of dividing everything fairly. Here’s a list to get you started thinking through your own finances:

  • Real property – your home, land, investment properties
  • Other property – Furniture, jewelry, cash, technology, automobiles, recreational vehicles
  • Wage earnings
  • Investments – stocks in an individual account, Roth IRA, 401K
  • Health Saving Accounts
  • Pensions
  • Mortgage
  • Student Loans
  • Credit Card Debt
  • Automobile Loan
  • Loans from family members
  1. Label each as community property or separate property
  • Community property – assets, income, or debts earned or acquired during the marriage.
  • Separate property – property owned before the marriage, property inherited or gifted to one part during the marriage, money from the rent or sale of a separate property, money earned while legally or physically separated from the spouse, and items given from one spouse to the other with the intention of designating it as separate property.
  • Common question: What do we do with an asset that can’t be divided physically? For example, do we have to sell the house in order to divide the money?  The answer is that each spouse has to get assets equivalent in value, so in lieu of selling the house, one spouse may keep the house and the other would get the value of half of that asset.
  1. Place a value on each asset and debt.

In preparing for a divorce, it may be helpful to see if you and your spouse have the same estimation of the value of assets and debts or if there is a large disparity. For your list, make an estimate of the value of each item.

  • Be aware that some items may have more value than you realize. For example, a pension plan can be very valuable and special rules apply to pension plans. In this situation, consulting with an attorney on the value and division of the pension plan can be important.

5 Questions Almost Everyone Asks About Divorce

Divorces range from simple to complex, but almost everyone who is considering a divorce will ask some basic questions.  This article will walk you through five common questions, and provide the answers you need to start thinking about the best way to approach your divorce.

  1. What are the options for ending a marriage in California?

Divorce, legal separation and annulment are the options for changing a marriage or domestic partnership relationship.

  1. Does the person who gets to the courthouse first have an advantage in a divorce?

Know that the officer will write down everything you say, so don’t admit to wrongful conduct if it’s not true.  At the same time, you do not want to get into a heated debate with the officer.  Express yourself politely.  For example, if an officer asks you if you know you were speeding, you could respond with “No, I did not know that,” or you could say, “Thank you for letting me know why you pulled me over, but I did not believe I was speeding.”  You have a right to remain silent, and it is often the best course of action to avoid talking as much as possible.

  1. Does the other person have to agree to a divorce? Do I have to prove they did something wrong?

California is a “no fault” divorce state, so you do not have to prove that the other person did something wrong. The spouse or partner does not have to agree to the divorce. If that person refuses to participate, you can still get a default judgment which will allow the divorce to be final.

  1. Will a divorce affect my immigration status?

The answer to whether a divorce will affect your immigration status is very case specific.  The short answer is that it may or it may not, so it would be wise to consult with an attorney on the specifics of your situation.

  1. What types of issues typically arise in a divorce?

Each case is different, but these are the issues that often arise in a divorce situation, so you’ll want to discuss these topics with your attorney:

  • Division of your money, real property, investment accounts, etc.
  • Responsibility for paying debts
  • Spousal or partner support
  • Child custody and visitation
  • Child support

 

 

 

 

Typical Legal Procedure for a DUI Case

                  If you have a loved one who is facing DUI charges, or if you yourself are concerned, this article will provide a general overview of the legal procedure for a DUI case from start to finish.

  1. The Driver Comes in Contact with Police. A DUI case begins when you come in contact with the police.  This typically happens because of a traffic- related incident, such as a traffic violation (speeding or weaving) or a traffic accident.
  1. The Police Notice Indications or Alcohol or Drugs. The police officer may notice a scent of alcohol in your breath or physical symptoms such as slurred speech, bloodshot eyes, etc.
  1. Tests Are Performed by Police. The next step is where the police officer builds the case against you by collecting data through field sobriety tests or chemical tests, such as a breath test or blood draw.
  1. Booked in Jail/Car Impounded. You will typically be booked in jail and your car will be impounded.
  1. Prosecutor Reviews. The Prosecutor reviews the evidence and decides whether to charge you with an offense or decline to file charges.  If you are charged with DUI, it is likely in your best interest to engage and attorney as soon as possible.
  1. Driver’s Licenses Suspension. After the arrest, your licenses is suspended for 30 days. The DMV will automatically suspend your driver’s license after the 30 days unless you request a DMV hearing within 10 days of your arrest. 
  1. Arraignment. This is your first hearing where you have an opportunity to enter a plea of guilty, not guilty or no context. Entering a not guilty plea is very common at this stage, and you should not feel forced to enter a guilty plea even if you believe you are guilty.
  1. Hearings/Plea Negotiations/Motions. You may likely come back to court several times during the course of your case to negotiate with prosecutor or present a motion. A typical motion is a Motion to Suppress, where you or your attorney argue that certain information cannot be considered as evidence in your case because it was obtained in violation of your Constitutional rights.
  1. Trial/Plea. Eventually the case will either go to trial, where you will be convicted or acquitted, or you will enter a plea, or the prosecutor may in rare instances at some point choose to dismiss the case.
  1. Sentencing. The sentencing phase is where the judge determines the appropriate consequence for your actions.  Often sentencing will involve meeting with a counselor, who will ask questions and prepare a report about you for the judge. The counselor may make recommendations to the judge regarding appropriate education or therapy. At sentencing, the judge may impose jail time, community service, and fines.

 

 

Should You Trust an Attorney with Honors and Awards?

This article will give you a helpful map of the honors and awards that you should be looking for as you consider an attorney’s resume and whether he or she is the right person for you.  This will tell you what to look for and the red flags to avoid in analyzing an attorney’s success and history.

  1. Look for Past Successes. An excellent experienced attorney will have a long history of past successes. This is likely the type of success that you want to give the most weight when comparing attorneys because success in your particular type of case is likely to be the most relevant.  Look for a “Result” tab or “Successes” tab on the attorney’s website.  This will give you an indication of the types of cases the attorney has handled.  You will also get a feel for what a successful outcome in those cases looks like to him or her.
  • A disclaimer on past successes is a good thing. Typically, an attorney will have a disclaimer that states something to the effect that a success in one case does not guarantee a success in your case.  The disclaimer itself is in indication that the attorney is honest and ethical.  An attorney who promises you a particular result should be viewed with skepticism because no two cases are ever identical.
  1. Look for Relevant Experience in Other Roles. Look for experience that is relevant to the type of case you will engaging the attorney to handle.  For example, in criminal law, an attorney who has been on both sides of the case can have a unique perspective that can be helpful to you.  For example, a defense attorney who also worked as either a prosecutor or as a police officer may know the system from the inside out.  Similarly, a family law attorney who has experience as a guardian ad litem, victim advocate, or some other role in the court may be able to draw on that broad exposure to assist you more effectively.
  • Red flag. Experience in other roles can be very effective in building an attorney’s skills, but be cautious of someone who has very recently switched to the area of law you are interested in.  An attorney whose recent experience is relevant to your case is likely more ready to represent you than one who just barely switched to your area of law.
  1. Clerkships can be prestigious and also give an attorney insight into the court system or the political system that the attorney wouldn’t otherwise gain from just practicing law alone.  Look for clerkships on an attorney’s resume, and you may give more credence to clerkships that are with judges in California or your county.
  1. Law School Awards and Honors. Awards from law school may be in the far past, but they give you an idea of the personality type of the attorney.  Look for participation in law school extra-curricular activities, such as Moot Court or Law Review or clerkships completed during law school.
  1. Law-Related Memberships, Community Awards, and Community Service. You will likely want an attorney who is well-respected in the legal profession and the community.  Look for memberships in legal organizations, because these show an interest and connection to those legal specialties or groups.  Look for community awards because these indicate that your attorney has accomplished goals that are above and beyond the norm.  Consider community service that has been done by your attorney because those may indicate a personality that is committed to helping others.

3 Things You Need to File For Divorce with the Court in California

If you are ready for a divorce, you may wonder about the essentials needed to get the process rolling and the steps that must be taken to reach your goal.  This article will discuss three essentials for getting a divorce in California.

  1. Time. There is a mandatory waiting period in California that prevents any couple being divorced in less than 6 months. The divorce can take longer, but it can’t take shorter.  The starting point is the date the person officially notifies the spouse or domestic partner about the divorce.  You can get your paperwork in sooner and get the judgment approved, but the divorce will not be final until the waiting period has run.
  • Summary dissolution. You may be wondering if you can avoid the waiting period by obtaining a summary dissolution instead of a divorce.  The answer is no, a summary dissolution does not have a shorter waiting period than a divorce.  Y
  1. You will have to pay a fee to file the divorce papers with the court, unless you qualify for a fee waiver.  You can qualify for a fee waiver if 1) you are receiving public benefits, 2) if you household income before taxes is less than the minimum amounts designated by the court, or 3) if the court finds that you don’t have enough money to pay for your household’s basic needs and the court fees.
  1. Residency in California. A court has to have jurisdiction to hear your case, which is why residency is important.  It would not make sense if you and your spouse both resided in New York, and you asked a judge in California to have jurisdiction over a California divorce.  Either you or your spouse must have lived in California for the last 6 months and the county where you plan to file the divorce for the last 3 months.  If you and your spouse have lived in different counties for the last 3 months, then you can file in either county.  You can still file for a legal separation if you haven’t been in California for the last six months, and then you can file for divorce when the time has expired.

The essentials are fairly straightforward:  time, money and residency.  The details of the divorce can be more complex, so consult with an attorney on your specific facts.

 

4 Things You Didn’t Know About Shoplifting and Theft In California

If you have been charged with a crime in the theft category, you may have some questions about shoplifting or theft.  This article addresses some common questions.

Is it a crime if you didn’t leave the store?  Yes it can be. You can still be convicted of a crime, if you took something but didn’t leave the store.  If you look at the elements below, you will notice that the prosecutor doesn’t have to prove that you moved the item out of the store.  Still, the prosecutor must prove that you had intent, so that’s one area that can be attacked in the prosecution’s case if, for example, you intended to pay for the item but put it in a pocket or a purse without thinking.

What does the prosecution have to prove to convict me of petty theft?  The summary below will show you the general  elements of petty theft:  

  • taking possession of property owned by someone else
  • without the owner’s consent
  • with the intent to remove it from the owner’s possession
  • moving it, and keep it for a period of time
  • value of property is $950 or less.

What does the prosecution have to prove to convict me of shoplifting?  The summary below will show you the general  elements of petty theft:  

  • entering a commercial establishment (for example, a store)
  • while the establishment is open during regular business hours
  • with the intent to steal items worth less than $950

How can you fight a theft charge?  

  • Lack of intent – You can show that you had no intent to steal the item.  For example, if you purchased many expensive items and forgot to pay for the milk that was at the bottom of the cart, then those factors would indicate that not paying for the milk was an oversight rather than an intentional taking.   
  • Accident/Mistake– This defense also attacks the intent element by showing that you were unaware of the item or that it was a mistake.  For example, if a child or friend put the item in your pocket without your knowledge, you could claim that it was a mistake.  Or, if you thought the item had been previously purchased by a family member or friend, then that could show a valid accident or mistake.
  • Belief the property belonged to you – This defense is also a subset of lack of intent and can be used when you believed that the property was yours and not someone else’s property.
  • Consent from the owner – If the owner said or did something that made you believe that they consented to your use or taking of the property, then this is also a defense.