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Archive for the ‘DUI Law’ Category

Should I Take the Test, and If So, Which One?

Monday, September 28th, 2009

California drivers faced with a request form a police officer to summit to an alcohol chemical test must submit to a test, or be faced with the almost always certainty of a mandatory one year license suspension.   While there are various defenses that may be available for a refusal to summit to the mandatory testing requirement, this writer always recommends taking the test, thereby avoiding the potential for long term license suspension.

What test?

There are usually two tests available.  The standard breath test consists of a suspect blowing into a testing device.  Alternatively, one may submit to a blood test which consists of a simple blood draw.

Hands down, this writer recommends the breath test.  Breath testing requires conversion of a breath sample to derive a blood alcohol percentage.  The conversion factor is known as a partition ratio, and issues surrounding such ratios give rise to successful attacks on the reliability of breath test results.  Partition ratios vary widely in the general population and within individuals.  Moreover, patrition ratios in the general population are higher than the standard used in breath test machines, giving suspects taking such tests a potential benefit.

There are other reasons breath test machines lend themselves to an attack on the reliability of their results.  Machines often do not function properly.  Breath testing machines have a margin of error of 0.02%.  Further, breath test results in some machines are truncated.  The third decimal in the result is not included.  Thus, a test result of .099% will read out .09%, giving a suspect an added benefit.  In some situations a suspect may be able to avoid providing enough deep breath to register all of the alcohol present in his system.  Finally, the breath test machine scale in some machines is set .003% below the start line giving the suspect a further added benefit.

Should you or a loved one have the misfortune of a DUI arrest and/or be faced with other issues concerning your driving privilege contact San Jose DUI Lawyer Bernard P. Bray.

Can I Really Lose My License? (Part II)

Monday, July 6th, 2009

In a recent blog entry I wrote about license suspension pursuant to the California Administrative Per Se suspension rule.  In California drunk driving is not the only offense that can put your driving privilege at risk.  There is a virtual laundry list of offenses that have the potential of resulting in a driver’s license suspension.  These offenses include, but are not limited to, drunk driving, domestic violence, reckless driving, vandalism, hit and run, disorderly conduct, almost all drug offenses, including simple possession where a car is involved, and that is only a partial listing.  Other circumstances that put your driving privilege at risk are medical conditions such as epilepsy, age, a record of accidents, involvement in an accident resulting in a death, a record of tickets, missed or late payments on civil court ordered judgments or family support obligations, and the list goes on.

Driving in California on a license that has been suspended for any one of the above reasons is serious.  It is a misdemeanor crime.  Conviction of a misdemeanor crime in California comes with any number of potential direct and collateral consequences, including Jail time, and immigration problems for the non-citizen.

If you have questions regarding driving on a suspended license or any other criminal justice issues contact  San Jose DUI Lawyers at the Law Offices of Bernard P. Bray.

Can I really lose my license?

Thursday, June 25th, 2009

As a practicing criminal defense attorney in California I hear that question more than a few times a month from persons calling the office after having been arrested for driving under the influence. Anyone arrested for driving under the influence in California will face license suspension if they provide an alcohol screening test result that comes back with a result of .08% blood alcohol or higher, or if they refuse to take a test.

The threshold is much lower for persons under the age of 21. Anyone under age 21 arrested for driving under the influence in California will face license suspension if they provide an alcohol screening test result that comes back with a result of .01% blood alcohol or higher, or if they refuse to take a test.

The above rule is known as the Administrative Per Se Suspension Rule. Notice of the Administrative Per Se Suspension is provided by the arresting police officer or police agency. The actual suspension is administered by the California Department of Motor Vehicles. There is no pre-suspension imposition right to court review of an Administrative Per Se suspension. If one wishes to contest an Administrative Per Se suspension with a view toward avoiding license suspension, one only has 10 days within which to request a hearing to challenge the suspension, and request a stay of the suspension until the time of a hearing. If one takes no action, their license will be suspended 30 days after arrest.

The period of suspension will be for four months for over age 21 first time offenders that take a test. A restricted license may be available after 30 days of suspension. The suspension will be one year for persons refusing a test and for under age 21 offenders. Multiple offenders are looking at much longer periods of suspension.

If you, or any you know has been arrested for DUI and has questions contact the best San Jose DUI Lawyers at the Law Offices of Bernard P. Bray at: (408) 292-9700.

30 Days for DUI Manslaughter: Could it Happen in California?

Tuesday, June 23rd, 2009

Sacramento California raised Dante Stallworth, who was most recently employed as a receiver for the Cleveland Brown’s, after stints with the New England Patriots, the Philadelphia Eagles, and the New Orleans Saints was sentenced in Florida to 30 days in jail for DUI manslaughter.  Was this result at variance from the public’s expectations in such situations?  You bet it was!

While the outcome could have been the result of great lawyering, Stallworth’s celebrity status, or most appropriately extenuating facts and circumstances of the case, this writer strongly suspects that it was most probably the influence of the victims’ family who reportedly received a substantial confidential settlement from Stallworth.

The reported facts of the case are not mitigated.  Apparently, Stallworth drove his Bentley around a stopped car to beat a red light and struck 59 year old Mario Reyes, who was walking to a bus stop form work as an overnight crane operator.  While Stallworth cooperated with the authorities, he is alleged to have provided a blood alcohol breath test  result of .126%.  The legal limit in California is .08%.

The case did not go to trial, and resolved at a very early stage of the proceedings, and consequently did not provide much opportunity for courtroom lawyering.  To pin the result on Stallworth’s status as a sports celebrity would be a stretch for even the most cynical of observers.

Could such a result be possible in law and order California, the home of the nation’s first three strikes law?  Sure, and this fact should arguably not be shocking, or even out of line, when considering current state law concerning the rights of victims to influence the outcome in criminal cases.  Florida, like California, has its own Crime Victim’s Bill of Rights, and it appears on first read not even to be as expansive as the bill that the California voters passed on November 4, 2008 in the form of Proposition 9, also known as Marsy’s Law and the Victims’ Rights and Protection Act of 2008.  Proposition 9 extended the victim’s right to be heard, to a right to be involved substantively in the criminal justice process.  California victims are now constitutionally entitled to safeguards fully protecting all of their rights, including the right to reasonably confer with prosecuting agencies even before any pretrial disposition of a criminal case.

Perhaps in an ironic tweak of law, Florida’s Crime Victims’ Bill of Rights arguably set up vulnerable crime victims to unnecessarily infringe upon the power of the state in its search for justice for the people of the state of Florida, and certainly in the case of Dante Stallworth, set up his victims to be his most powerful allies in the courthouse.

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

If one is Convicted for Driving Under the Influence will They Loose Their License?

Thursday, April 16th, 2009

The short answer is yes. For first time offenders the suspension is for six months. However, the DMV will grant a restricted license, a license that allows one to drive to and from work and school, once one has shown proof of enrollment in a driving under the influence program, proof of insurance, and pays all required reissue and reinstatement fees.

If you have been arrested for driving under the influence in Santa Clara county then contact Bernard P. Bray, a DUI lawyer in San Jose.

Call Now: (408) 292-9700

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