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Archive for the ‘Criminal Law’ Category

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.

Should California Decriminalize the Use and Possession of Marijuana?

Monday, July 19th, 2010

This coming November California voters will be presented with a Proposition that will decriminalize and tax the use and possession of marijuana if enacted.  Proponents, of what is otherwise known as Proposition 19, argue the fact the initiative will generate millions of dollars in tax revenues in support of the measure.  Opponents argue quite forcefully and logically: why would any one support a measure that essentially supports people getting high?

This writer certainly shares the measure’s opponents concerns about recreational drug use and abuse, and opposes same, but as a practicing criminal defense attorney, I also know that there is a terrible disparity in society’s enforcement of its drug laws along racial and ethnic lines.  And, our society has spent billions of dollars, has ruined perhaps an many as millions of lives, and has the highest incarceration rate in the world, because of our so called war on drugs.

Our scheme of drug laws in archaic, doesn’t work, and is to expensive to enforce in our current economic times.  Along with its predecessors, Proposition 215, the 1996 initiative allowing for the medicinal use of marijuana, and Proposition 36, the 2000 initiative allowing an opportunity for first and second time drug possession offenders to be placed in treatment, rather than incarcerated, Proposition 19 appears to be another step in the right direction.

If you or someone you know has been arrested for a drug crime in Santa Clara County, contact the San Jose drug lawyers at the Law Offices of Bernard P. Bray.

It Must Be the Economy!

Wednesday, April 14th, 2010

As I recently commented, statistics for domestic violence in Santa Clara County for 2009 were staggering.  I was initially taken back by the increase in domestic violence related deaths, and opined that perhaps one reason for the jump was the downturn in the economy. 

Statistics also show that the general jump cuts across all socio-economic lines.  Even in high end Los Gatos – Monte Sereno there was a year over year, 2008 to 2009, increase in domestic violence related case arrests of 32 percent. 

Unquestionably, the economic stress associated with the recession has pushed some families to the economic brink, and the consequences can be sometimes awful.  But any arrest, let alone one for domestic violence, can ruin a life, and even an entire family.  

Domestic violence is a serious social problem with awful consequences for everyone.  Attorney Bernard P. Bray has many years of experience successfully dealing with domestic violence issues, and assisting clients and their families in minimizing the impact of an arrest for a domestic violence related offense.    Should you have questions regarding domestic violence, or should you or a loved one need effective representation because of a domestic violence related arrest please call San Jose Criminal Defense Lawyer Bernard P. Bray at (408) 292-9700.

Why Blood Alcohol Concentrations of .15% Matter?

Monday, March 22nd, 2010

Pursuant to California Vehicle Code section 23578, persons convicted of driving under the influence in California can expect enhanced penalties in sentencing when they admit to having driven with a blood alcohol concentration of .15% or higher.

The reason for this enhancement is justified by statistics.  Most drivers who have consumed alcohol have low blood alcohol concentrations, and few of these drivers are involved in fatal crashes.  On the hand, while only a relatively few number of drivers have blood alcohol concentrations higher than .15%, a much higher proportion of those drivers have fatal crashes.

If you have questions regarding California DUI law, or should you or a loved have had the misfortune of a DUI arrest, protect yourself to the fullest extent possible, call San Jose DUI Lawyer Bernard P. Bray.

DUI Checkpoints, A Potential Gold Mine For Cash Strapped Local Governments?

Wednesday, February 17th, 2010

DUI checkpoints are a direct method of clearing our roads of drunken drivers, but they are also providing a much needed unintended source of cash for local governments.  Pursuant to California Vehicle Code Section 14602.6 Police Officers may on the spot seize cars driven by unlicensed motorists, and subject them to a 30 day impoundment.  Interestingly, more cars were seized from unlicensed California drivers in 2009 at DUI checkpoints, than suspected drunken drivers that were arrested.

An Investigative Reporting Program at the University of California Berkeley recently reported that California DUI check points generated an estimated $40 million in towing costs and administrative fees from seizing cars from unlicensed drivers in 2009, money that was shared by local governments and towing firms.

The law provides that responsibility for paying storage, towing and administrative charges is the responsibility of all registered owners of the cars that are seized as the result of having been driven by unlicensed drivers.  The administrative charges assessed by local governments significantly run up the bill.  And, all Cities, Counties, and the State, are all entitled to access these fees pursuant to California Vehicle Code section 22850.5.

Currently sobriety checkpoints that the California Highway Patrol operates do not result in administrative fees being accessed on seized vehicles that are driven by unlicensed drivers, but it appears only to be a matter of time before the State of California gets on board, and edges in on the extra income generating scheme.

If you have questions regarding California DUI sobriety check points, or should you or a loved have had the misfortune of a DUI arrest, protect yourself to the fullest extent possible, call San Jose DUI Lawyer Bernard P. Bray.

Call Now: (408) 292-9700

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