|
|
|
Frequently Asked Questions
1.) I heard that Ventura County is very tough on DUI.
How does Ventura County differ from other jurisdictions?
Ventura County is one of the toughest jurisdictions for DUI and
differs significantly from other counties such as Los Angeles and
Santa Barbara. Ventura County has unique policies and procedures for
DUI cases that many attorneys, particularly those from other
counties, are not familiar with. Unlike Los Angeles County,
Ventura does not offer reduced charges such as wet reckless offenses
to people charged with DUI. That does not mean that DUI cases
cannot be won in Ventura County or that dismissals or reductions in
penalties can not be obtained.
Ventura County is unique
with respect to the penalties imposed for persons convicted of DUI. These penalties differ from those imposed in neighboring counties
such as Los Angeles and Santa Barbara. You can view a general
summary of Ventura County’s DUI penalties by clicking on the “Ventura
DUI Penalties” box on the left hand side of this page.
2.) What is the first thing I
should do after being arrested for DUI?
The first three things you should consider doing after being
arrested for a DUI are retaining an attorney, requesting a DMV
hearing, and preserving any evidence that you may use to fight the
charges. When a person is arrested for a DUI, they end up with two
cases, one with the court and one with DMV. When someone is arrested
for a DUI, the officer typically issues them a temporary license
which is good for thirty days. In fine print on that temporary
license, it states that if the person wants to fight the suspension
of his or her license, he or she must request a DMV hearing within
ten days of the arrest. If a hearing is not requested within ten
days, you will lose the opportunity to fight the suspension and
your suspension will automatically go into effect thirty days after
you were arrested. As such, it is important that a hearing be
requested within ten days of your arrest. If you call the Law
Offices of Farley & Cassy at (805) 644-8363, and are considering
retaining us, we will schedule your hearing free of charge.
3.) Could you explain the various stages of the court and
DMV process?
The sequence of events following a DUI arrest are as follows. First,
you would schedule your DMV hearing within ten days of your arrest. Second, you or your attorney would make the first court appearance
which is called the arraignment. As long as you are charged with a
misdemeanor DUI offense your attorney can appear for you and you do
not need to go to court. The police reports are typically not
released until your first court date and for this reason your
attorney will appear and continue the case for a few weeks so that
he can go over the reports with you. After meeting with you and
going over the reports, it will be determined whether there are any
potential defenses to the charges, whether additional discovery is
needed, etc. Your case may be continued again in the arraignment
court or set for trial or motion if warranted by the evidence. Your
DMV hearing will typically occur two to three months after you were
arrested. As long as a timely request for a hearing was made, the
suspension of your license will be stayed pending the outcome of
your hearing.
4.) Do I have to appear in court?
One of the benefits of hiring an attorney in a misdemeanor DUI case
is that your attorney can appear for you on your court date. As long
as your attorney appears on your court date, you do not need to
attend court unless your case goes to trial or your testimony is
needed in a hearing on a motion. Typically, clients do not appear in
court at their first appearance on a misdemeanor DUI charge. Since
all of the police reports are not made available until the first
court appearance, your attorney typically appears for his/her
client, obtains the discovery from the DA, and continues or delays
the case for a few weeks so that he can meet with the client and go
over the reports with him/her. If the DUI charge is a felony then
the client must appear in court. A DUI case would be a felony charge
if the person has three or more prior DUI convictions within seven
years, a prior felony DUI conviction within ten years, or if someone
other than the defendant was injured in the pending DUI incident. A
first, second, or third DUI offense involving no injuries is a
misdemeanor charge for which your attorney can appear without you
having to attend court.
5.) I was never read my rights. What effect does this
have on my case?
Contrary to how criminal cases are portrayed on T.V. shows, a person
does not need to be advised of their Miranda rights prior to being
taken into custody, i.e., arrested. After you are in custody, i.e.,
under arrest, the police are only obligated to advise you of your
Miranda rights if they interrogate you about the offense. Most
of the relevant questions in a DUI case are asked out in the field
prior to the accused being taken into custody and a person need not be advised of their rights at
that time. However, if you were asked questions about the offense
(i.e. how much you drank, etc.), after you were arrested and without
waiving your Miranda rights, these statements may not be admissible
in court against you.
6.) Why am I charged with two offenses: (Vehicle Code
sections 23152(a) driving under the influence, and 23152(b) driving
while .08% or greater)?
In California, as in most states, there are two separate ways by
which a person can be convicted of drunk driving. The first is
by establishing a violation of Vehicle Code section 23152 (a), i.e., driving under the
influence of alcohol or drugs. To convict a person of driving under
the influence it must be proven that they were physically or
mentally impaired by alcohol or drugs at the time of driving. The
second way by which a person can be convicted of drunk driving is
pursuant to Vehicle Code section 23152 (b). To establish a violation
of this law it must be proven that the person had a blood/breath
alcohol level of .08% or greater at the time of driving. To
determine whether a person was driving under the influence, 23152
(b), the state primarily looks to the driving pattern and field
sobriety tests to see if there is evidence of impairment. To
determine whether a person was .08 or higher at the time of driving
the focus is on your test results, how close they were taken to the
time of driving, when you finished drinking, last ate, and other
factors that can help determine what your blood alcohol level was at
the time of driving.
7.) Why am I charged with driving under the influence of
alcohol or drugs?
After reviewing the complaint in their case, many people mistakenly
think that they are being charged with driving under the influence
of drugs because of the way a DUI complaint is alleged. The
complaint is computer generated and alleges driving under the
influence of alcohol or drugs even in cases where no drugs are
involved. If no drugs were involved in your case, when your case is
resolved, the record will indicate that the charge was based solely
on alcohol.
8.) How many points is a DUI on my record and when do I
lose my license for having too many points?
Being arrested for a DUI triggers a potential license suspension for
driving above the legal limit. Being convicted of a DUI can cause
you to lose your license for having too many points. A misdemeanor
DUI conviction for a violation of Vehicle Code section 23152
constitutes two points on your DMV driving record. The DMV will
presume that you are a negligent operator and issue a suspension
notice if you obtain four or more points in 12 months, six or more
points in 24 months, or eight or more points in 36 months. When you
receive this notice, you will typically be given ten days in which
to request a hearing to fight the suspension. The Law Offices of
Farley & Cassy has conducted a number of these hearings and has
been successful in preventing clients’ licenses from being suspended
even when they have exceeded the point counts set forth above.*
Most moving violations
such as speeding, running a stop sign or red light, etc., are
infractions which constitute one point on your DMV record. The
following violations constitute two points on your DMV record: DUI (Veh.
Code § 23152), hit and run (Veh. Code § 2001/2002), reckless driving
(Veh. Code § 23103), driving over 100 mph (Veh. Code § 22348(b)),
evading the police (Veh. Code § 2800.2/2800.3), exhibition of speed
(Veh. Code § 23109), driving on a suspended license (Veh. Code §
14601/14601.1/14601.2/14601.3/14601.5), and violations of Vehicle
Code section 23140. (If you are a commercial driver or someone
holding a class A or B license, different rules than those set forth
above apply and you should consult the Law Offices of Farley & Cassy.)
* This does not guarantee, warranty, or predict the outcome of your
case.
|