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Can a DUI charge be successfully Defended?

July 11th, 2012

This will be the first in a series of blog entries that will examine various defenses available in DUI cases.

Although not available in every case, and often times defeated by a client’s admission to driving at the time of contact with the Police, an “I wasn’t driving” defense can be successfully asserted in some cases.

I have successfully  asserted this defense for clients, although  it required a trial before we found ears even willing to listen.

There are risks involved in presenting such a defense.  Lindsay Lohan asserted the defense earlier this month to an accusation that she was driving a car (in violation of her probation) that was involved in an accident on the Pacific Coast Highway.  Regrettably for Lindsay, an assistant that was riding with her at the time of the crash confirmed for the police that it was actually Lindsay driving during a follow up interview.

If you or a loved one have been arrested for driving under the influence, protect yourself to the fullest extent possible, contact San Jose DUI Lawyer Bernard P. Bray at (408) 292-9700 and learn your options before you go to court.  It can make all the difference in the outcome of your case.


What is The Typical First Offender DUI Sentence in California?

January 22nd, 2011

As a practicing criminal defense lawyer in California I get asked this question a lot.  And the answer is always the same: It depends.  California Superior Court Judges are given wide latitude when it comes to sentencing first time DUI offenders.  There are many factors, and local policies, that play a part in the DUI sentencing equation.  DUI first time offender sentencing is governed by California Vehicle Code section 23536 and section 23538.  While section 23536 requires a mandatory 48 hour jail sentence, and section 23538 allows for less than the required minimum in all cases where probation is granted, the predominant characteristic of first time DUI sentencing and practice is just how non- typical, and likely subject to upward departure, any individual sentence has the prospect of ultimately being.

From the Court of conviction a convicted first offender in most California counties, where no aggravating or mitigating facts are present, should expect to receive three years of probation, six days of community service, fines and court fees of approximately $2000.00, and participation in a drinking driver program.  From the DMV, a first offender, under the same circumstances, will face a four month license suspension or a thirty day suspension with five months of restricted driving thereafter.

Of particular note in the sentencing equation are those instances where an upward departure is indicated because of particular facts, or even required by statute, because particular facts that have been alleged as sentencing enhancements.  An example of considerations that could  result in enhanced penalties are in instances where an offender was involved in an accident, produced a high blood alcohol content result, engaged in excessively inappropriate driving, was particularly uncooperative with police, was driving without a valid license, or where the police report reveals the existence of other uncharged law violations.

In many instances there are facts presented where the law requires an enhanced penalty for a first time offender.  Pursuant to California Vehicle Code section 23572 a jail sentence of an additional 48 hours is required where a first time offender had a passenger under the age of 14 at the time of arrest.  Pursuant to California Vehicle Code section 23578 an aggravated sentence shall be considered by the Judge where a first offender produced a blood alcohol result of .15% or higher.  The same section also requires that a Judge shall consider a higher sentence where a first offender refused to take a blood alcohol test.  And California Vehicle Code section 23582 requires that an additional jail sentence of 60 days be imposed where a first offender drives 30 miles per hour over the speed limit on a freeway, or 20 miles per hour over the speed limit on any street or highway while under the influence.

If you or a loved one have been arrested for driving under the influence, protect yourself to the fullest extent possible, contact San Jose DUI Lawyer Bernard P. Bray at (408) 292-9700 and learn your options before you go to court.  It can make all the difference in the outcome of your case.

Is Marijuana Possession Really Not A Crime in California?

January 22nd, 2011

Last November California voters had the opportunity to legalize marijuana possession by way of Proposition 19.  While California voters failed to pass the Proposition, as of January 1, 2011, it is no longer a misdemeanor to possess up to one ounce of marijuana in California for personal use.  It is now an infraction only, the maximum punishment for which is a fine of $100.00.

This change in the law was made effective by changing the classification of the crime of possession of up to an ounce of marijuana form a misdemeanor to an infraction in California Health and Safety Code section 11357 (b), and California Vehicle Code section 23222(b).  As an infraction crime only, persons charged under the amended laws will not be subject to arrest, nor will they any longer be entitled to a jury trial or to an attorney at taxpayer expense.

Keep in mind that while this change in the law is significant, it does not apply when the marijuana is possessed for the purpose of selling it.

If you have questions regarding California’s drug laws, or you or someone you know has been arrested for a drug crime, contact San Jose drug lawyer Bernard P. Bray at: (408) 292-9700.

Is Business Booming for Santa Clara County Vice Cops?

September 14th, 2010

As anyone who has ever perused a copy of the San Jose Metro, or who has ever visited MYREDBOOK.COM already knows, the world’s oldest profession is very alive and well in San Jose and Santa Clara County. 

Santa Clara County Sheriff’s Department Deputy Mike Paresa reported to the San Jose Mercury News last week that an investigation that lasted eight months, and involved more than thirty officers, netted two people that oversaw an alleged prostitution ring headquartered in Santa Clara County.  The ring employed mainly Chinese women that were making $12,000.00 a month.  Sheriff’s Department Lieutenant Joe Walldherr commented that “The way the economy is and how lucrative this is, it’s very common.  We’ll shut one down and there will be 10 of them opening up.  They’re all over.”

Notwithstanding the huge investment of manpower and resources, the Sheriff’s office justified the investigation, in part, because prostitutes can be vulnerable to robberies and sometimes held in the industry against their wishes. 

San Jose Criminal Defense Lawyer Bernard P. Bray has extensive experience handling prostitution cases. He has been successful in asserting defenses based on many theories, including double jeopardy and outrageous police misconduct in attacking prostitution charges on technical grounds, and has an excellent track record with prostitution cases in front of juries.

Prostitution allegations should not be taken lightly. When faced with prostitution charges call San Jose Criminal Attorney Bernard P. Bray at: (408) 292-9700. Chinese, Vietnamese, and Korean interpreters are available on request.

Why Were Labor Day Weekend 2010 DUI Arrests Down?

September 13th, 2010

Labor Day Weekend 2010 DUI arrests were down across California this year.  According to the California Highway Patrol there were 900 DUI related arrests statewide over the long three day weekend as compared with 923 arrests for the same period last year.

Could the flat statistics be a result of the recession?  In other words, could the decrease in arrests be a reflection of statewide police layoffs and cutbacks?  In Santa Clara County the facts would indicate otherwise.  From Friday August 20, 2010, through Saturday September 4, 2010, DUI patrols and sobriety check points were increased as part of a summer DUI crackdown campaign.  Notwithstanding the added enforcement efforts, there were only 343 driving under the influence arrests compared with 363 arrests for the same period a year ago.

 Although the above statistics may reflect a year over year decrease in California DUI related arrests, penalties for a DUI conviction are still potentially quite severe including license suspension, jail time, probation, fines, court fees, alcohol classes, increased insurance premiums, and a criminal record.

 If you or a loved one have been arrested for driving under the influence or should you have questions regarding California DUI law please call San Jose DUI Attorney Bernard P. Bray: (408) 292-9700.

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