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Archive for January, 2011

What is The Typical First Offender DUI Sentence in California?

Saturday, 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?

Saturday, 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.

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