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DUI TIPS & TRICKS IN DUI STOPS

 

DUI Lawyer, Attorney in Indio, CA

Too many people get convicted of DUI without realizing the right DUI lawyer can make that liklihood significantly less. That's where Barry G. Sands comes in for you. Protect your rights, know your options.

 

DUI

In California, being charged with a DUI (driving under the influence) or DWI (driving while intoxicated) is a criminal offense. Many motorists have difficulty accepting the reality that a conviction for drunk driving comes with harsh penalties, including a California criminal record, stiff fines, loss of driving privileges, increased insurance rates, possible jail time and possible loss of your professional license.

As heard on KCLB 93.7 FM,  U-92.7 FM, FOX SPORTS. AM1270 Radio...

 

TIPS AND TRICKS FOR HANDLING A DUI STOP

Indio is crawling with law enforcement officers looking to make a DUI arrest. In fact, now there are even task forces exclusively dedicated to catching drunk drivers. Whether at a DUI checkpoint or a routine traffic stop, if you are stopped by law enforcement, you need to know how to conduct yourself.

There are countless reasons a police officer might stop your vehicle. Maybe you were driving over the speed limit, maybe you were tired and began drifting out of your lane, or maybe your registration was expired. Law enforcement can stop your vehicle for any suspected traffic violation. As long as there is reasonable suspicion, or it is at a lawful checkpoint, police can stop you.

If you are stopped, here's what you need to know:

  • Once you pull over, turn off your vehicle and place your hands on the steering wheel. If it is nighttime, you may even want to turn on your interior vehicle lights. This will help law enforcement know that you are not a threat, and can reinforce the idea that you are coherent and not inebriated.
  • Don't argue. You may not agree with the officer's reason for pulling you over, but arguing almost always makes your situation worse.
  • Only speak when spoken to. You may have the urge to explain yourself or justify your actions to the officer, but this has a better chance of annoying the officer than helping your case. Also, anything you say could be used to justify an arrest or criminal charge.
  • Avoid any admission of guilt. You are not required to admit any wrongdoing to the police officer. In fact, doing so could give the officer reason enough to issue you a ticket or administer field sobriety tests.

If the officer asks you to step out of your vehicle for field sobriety testing:

  • If the police officer has enough reasonable suspicion to believe you may be under the influence of drugs or alcohol, they can ask you to step out of your vehicle for field sobriety testing.
  • At this point, you are not yet under arrest. You also are not required by law to submit to these tests. Refusing to take the field sobriety tests may result in your arrest, but some people prefer this option so that they can "fast forward" to the chemical tests (breath or blood tests) and avoid giving law enforcement additional evidence to support a DUI charge.

When is it lawful for police to search your car?

  • If you are stopped for suspected drunk or drugged driving, when is it lawful for police to search your vehicle? Law enforcement does not need a search warrant for a traffic stop, but they must have probable cause.
  • A hunch is not enough. Law enforcement must be able to back up their search with observable evidence.
  • You have the right to refuse consent to a police search of your person as well as your vehicle. While you can verbally express that you do not consent, avoid physically refusing consent. This can be taken as a sign of aggression and could even lead to a charge of assault on a police officer.

What You Must Know Now About Police Procedure


Why were you stopped?
Police must establish that they had reasonable suspicion to detain you in the first place. They must establish that you committed a violation of the Vehicle Code justifying the stop. The National Highway Traffic Administration has published a Guide For Law Enforcement For Observations Of Vehicles In Motion.
Checkpoints
If you were stopped at a checkpoint, the police must establish that they complied with Supreme Court guidelines for checkpoints. Click link below to review Mr. Simons' Brief filed in the latest checkpoint case to be reviewed by the United States Supreme Court in Illinois v. Lidster.
Refusal To Take Chemical Test
If you Refused to take a test or failed to compete a test, you face a ONE to THREE YEAR SUSPENSION from the DMV. If you are convicted of DUI and the allegation that you willfully refused to take a test is found to be true, there is a mandatory JAIL SENTENCE, you will be required to attend a 9 month alcohol program and may be compelled to have an ignition interlock device on your vehicle. Some Police Departments will force you to take a blood test even if you refuse and then use the results against you in Court. This is the worst of all possible scenarios since you will be subject to penalties for refusals and the results of the blood test still comes in at your trial. There are many successful ways to defend a Refusal Case. The officer is required to properly advise you of the consequences if you refuse - many officers fail to give the required admonition correctly or confuse a driver. Officers will also improperly deny a driver the right to take and complete a breath test. Our office established that a driver has the Constitutional Right to take a breath test and not be compelled to take a blood test in the landmark case of Nelson v Irvine. Because of the many serious consequences that flow from a charge of willful refusal, drivers are advised to seek the aid of a DUI Specialist even for a 1st offense.

HORIZONTAL GAZE NYSTAGMUS (HGN) 1. CONDITIONS WHICH MAY INTERFERE WITH SUSPECT’S PERFORMANCE ON HGN.

A. Wind, dust, etc., irritating the suspect’s eyes (P. VIII.-16).

B. Visual or other distractions (always face the suspect away from rotating lights, strobe lights and traffic passing in close proximity) (P. VIII.-16).

2. ADMINISTRATIVE PROCEDURES.

A. Eyeglasses—have suspect remove eyeglasses (P. VIII.-6).

B. Verbal Instructions (P. VIII.-7).
1. “I am going to check your eyes.”
2. “Keep your head still and follow this stimulus with your eyes only.”
3. “Keep following the stimulus with your eyes until I tell you to stop.”

C. Position stimulus 12 to 15 inches from suspect’s nose and slightly above eye level.

D. Check for Equal Tracking—move stimulus smoothly across suspect’s entire field of vision. If eyes don’t track together (one lags behind the other), possible medical disorder, injury, or blindness.

E. Check for Equal Pupil Size—if pupils are not the same size, may indicate head injury.

F. Check for lack of smooth pursuit (high speed). (P. VIII.-7).
1. The nose is the starting point.
2. Check subject’s LEFT EYE, then RIGHT EYE
3. Stimulus must be moved steadily.
4. Speed/Timing: For each eye check, 2 seconds out, 2 seconds back.
5. Tester must conduct at least 2 passes for each eye. NOTE: minimum total time to perform this check on both eyes & to repeat is 16 seconds.
6. If eyes cannot follow a moving object smoothly, count this clue.

G. CHECK FOR DISTINCT NYSTAGMUS AT MAXIMUM DEVIATION (slow speed) (P. VIII.-7).

1. The nose is the starting point.
2. Check subject’s LEFT EYE, then RIGHT EYE.
3. Move stimulus until subject’s eye has gone as far as possible eye to the side (No white should be showing in the corner of subject’s eye).
4. Speed/Timing: Hold the subject’s eye in that extreme position (max deviation) for at least 4 seconds.
5. Tester must conduct at least 2 passes for each eye NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds.
6. Jerkiness must be distinct at maximum deviation to score this clue.

H. CHECK ONSET OF NYSTAGMUS PRIOR TO 45 DEGREES (P. VIII.-8).
1. The nose is the starting point.
2. Check subject’s LEFT EYE, then RIGHT EYE.
3. Speed/Timing: Should take 4 seconds to move stimulus from subject’s nose to shoulder (45 degrees is presumed to line up with every test subject’s shoulder).
4. When you first observe eye jerking, stop and verify that this jerking continues. NOTE: When tester first observes subject’s eye jerking, check to ensure that some white of the eye is still showing closest to ear. If no white is showing, the tester has probably gone past the 45 degree mark.
5. Tester must conduct at least 2 passes for each eye. NOTE: minimum total time to perform this check on both eyes & to repeat is 20 seconds.
6. If nystagmus is observed prior to 45 degrees, score this as a clue.


3. TOTAL THE CLUES (P. VIII.-8).

A. Total of 6 clues; 3 for each eye.

B. 4 or more clues equals a 77% likelihood that subject is over .10% BAC.


4. VERTICAL NYSTAGMUS—Used to detect impairment due to drugs like PCP, CNS depressants, etc. (P. VIII.-9).
1. Position stimulus horizontally (parallel to the ground) about 12 to 15 inches in front of the subject nose.
2. Instruct subject to hold his head still, and follow the stimulus with his eyes only.
3. Raise the stimulus until the suspect’s eyes are elevated as far as possible.
4. Hold for approximately 4 seconds.
5. Watch closely for evidence of the eyes jerking.

WALK & TURN (WAT) (Heel-to-Toe)
1. TEST CONDITIONS.

A. Test requires a designated straight line.
NOTE: this criterion is in conflict with (2)(A)(1) immediately below (P. VIII.-12).

B. Test should be conducted on a reasonably dry, hard, level, non-slippery surface (P. VIII.-12).

C. Subjects over 65 years old, or persons with back, leg or middle ear problems have difficulty performing this test (P. VIII.-12).

D. Subjects wearing shoes with heels more than 2 inches high should be given the opportunity to remove them prior to testing (P. VIII.-12).

E. Tester should limit his movement which may distract the suspect during the test (P. VIII.-12).

F. Conditions which may interfere with suspect’s performance on WAT include wind/weather conditions, suspect’s age, weight, and suspect’s footwear (P. VIII.-18).
2. ADMINISTRATIVE PROCEDURES (Begins at P. VIII.-9).

A. INSTRUCTION PHASE: Give the test subject following verbal instructions.
1. “Place your left foot on the line.” (real or imaginary) (Demonstrate)
2. “Place your right foot on the line ahead of the left foot, with heel of right foot against toe of left foot.” (Demonstrate)
3. “Place your arms down at your sides.” (Demonstrate)
4. “Keep this position until I tell you to begin. Do not start to walk until told to do so.” (P. VIII.-10)
5. “Do you understand the instructions so far?” Make sure the suspect indicates understanding.
6. “When I tell you to start, take nine heel-to-toe steps, turn, and take nine heel-to-toe steps back.” (Demonstrate 3 heel-to-toe steps.)
7. “When you turn, keep the front foot on the line, and turn by taking a series of small steps with the other foot, like this.” (Demonstrate)
8. “While you are walking, keep your arms at your sides, watch your feet at all times, and count your steps out loud.”
9. “Once you start walking, don’t stop until you have completed the test.”
10. “Do you understand the instructions?” Make sure suspect understands.
11. “Begin, and count your first step from the heel-to-toe position as ‘One.’”

B. PERFORMANCE/GRADING THE WALK & TURN (P. VIII.-11).
1. Suspect Cannot Keep His Balance While Listening To The Instructions.
i. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart).
ii. Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position.
2. Suspect Starts Before Instructions Are Finished.
3. Suspect Stops While Walking.
i. Record this clue if suspect pauses for several seconds.
ii. Do not record this clue if the suspect is merely walking slowly.
4. Suspect Does Not Touch Heel-to-Toe—gap between heel and toe must be more than ½ inch.
5. Suspect Steps Off The Line—at least one foot of the suspect must be entirely off the line.
6. Suspect Uses Arms To Balance—arm(s) must be raised more than 6 inches from sides for this clue.
7. Suspect Makes Improper Turn.
i. Suspect removes front foot from the line while turning.
ii. Suspect does not follow directions as demonstrated (i.e., spins or pivots around).
8. Suspect Uses Incorrect Number of Steps—either more or fewer steps in either direction.

NOTE: If suspect has difficulty at some point performing this test, continue the test from that particular point on, not from the beginning of the test (P. VIII.-12).
NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-18).
NOTE: If suspect cannot do test, record as if all eight clues were observed (P. VIII.-11).

3. TOTAL THE CLUES (P. VIII.-12).
1. Total of 8 clues.
2. The presence of 2 or more clues equals a 68% likelihood that subject is over .10% BAC.


ONE-LEG STAND (OLS)
1. TEST CONDITIONS.

A. Tester should remain as motionless as possible during the test so as not to interfere with suspect’s performance (P. VIII.-14).

B. Test should be conducted on a reasonably dry, hard, level, non-slippery surface (P. VIII.-14).

C. Suspects over 65 years old, or 50 pounds or more overweight or with back, leg or middle ear problems have difficulty performing this test (P. VIII.-14).

D. Suspects wearing shoes with heels more than 2 inches high should be given the opportunity to remove their shoes prior to testing (P. VIII.-14).

NOTE: Nothing is mentioned about conditions and factors that may interfere with suspect’s performance.


2. ADMINISTRATIVE PROCEDURES.

A. INSTRUCTION PHASE—INITIAL POSITIONING & VERBAL INSTRUCTIONS (P. VIII.-12).
1. “Please stand with your feet together and your arms down at the sides, like this.” (Demonstrate).
2. “Do not start to perform the test until I tell you to do so.”
3. “Do you understand the instructions so far?” Make sure the suspect indicates understanding. (P. VIII.-13)
4. “When I tell you to start, raise one leg, either leg, approximately six inches off the ground, foot pointed out.” (Demonstrate one leg stance.)
5. “You must keep both legs straight, arms at your side.”
6. “While holding that position, count out loud in the following manner: ‘one thousand and one, one thousand and two, one thousand and three, until told to stop.” (Demonstrate and count as follows: “one thousand and one, one thousand and two, one thousand and three, etc.”)
7. “Keep your arms at your sides at all times and keep watching the raised foot.”
8. “Go ahead and perform the test.”

NOTE: The tester should always time the 30 seconds. (P. VIII.-13) The test should be discontinued after 30 seconds regardless of what number the suspect is still counting at. (P. VIII.-13 & 14)


B. PERFORMANCE/GRADING THE OLS TEST (P. VIII.-13).
1. Suspect Sways While Balancing—side-to-side or back-and-forth motion while in one-leg stand position.
2. Suspect Uses Arms To Balance—arms must be raised more than 6 inches from sides to count this clue. (P. VIII.-14)
3. Suspect Hopping (to maintain balance)—resorts to hopping in order to maintain balance.
4. Suspect Puts Foot Down—not able to maintain one-leg position, but puts foot down one or more times during 30 second count.

NOTE: If suspect puts his foot down, instruct suspect to pick his foot back up and to continue counting from the point at which the foot touched the ground (P. VIII.-13 & 14).
NOTE: Each clue may appear several times, but still only constitutes one clue (P. VIII.-19).
NOTE: If suspect cannot do test, or puts his foot down more than 3 times, record as if all four clues were observed (P. VIII.-14 & 19).

3. TOTAL THE CLUES (P. VIII.-14).

A. Total of 4 clues—The presence of 2 or more clues equals a 65% likelihood that subject is over .10% BAC.


DMV APS HEARINGS & PROCEDURES
THE ADMINISTRATIVE PER SE (APS) SUSPENSION ACTION
Often referred to as the “stop and snatch” law, the Administrative Per Se (APS) Suspension law is intended to promptly remove drunk drivers from the road.
The 30-day temporary license that accompanies every Order (discussed below) obviously defeats this legislative goal, but it is necessary to avoid due process challenges to the summary taking of one’s driving privilege without the opportunity to contest the action.

Grounds for Issuance of an APS Order There are several possible grounds for a person to be served with an Administrative Per Se Suspension (APS) Order:
Drives with a 0.01% or higher BAC while under 21 years of age. CVC §13353.2(a)(2).
Drives with a 0.01% or higher BAC while on DUI Probation. CVC §§23154 and 13353.2(a)(4).
Drives with a 0.04% or higher in a commercial vehicle. CVC §§13557(b)(2)(C)(iv) and 13353.2(a)(3).
Drives with a 0.08% or higher BAC. CVC §13353.2(a)(1).
Refuses to submit to and complete a chemical test, CVC §13353, or P.A.S. test if under 21 or on DUI probation.
See: CVC §13353.1.

California DMV APS Suspension Periods
APS suspension periods are governed by CVC §§13353, 13353.1, and 13353.3.
Prior APS suspensions and/or prior convictions will enhance some of the suspension periods. “Conviction” includes a juvenile court finding, infraction, misdemeanor, or felony for any of the following:
CVC §23103, but only where person sentenced pursuant to CVC §23103.5 (alcohol related reckless driving, commonly referred to as a “wet reckless”).
CVC §23140
CVC §23152
CVC §23153
Pen. C. §191.5
Pen. C. §192(c)(3)

Out-of-state conviction for any offense which, if committed in the State of California, would be a violation of any one of the above referenced statutes.
California DMV APS Hearing Discovery
Both the licensee and the DMV are entitled to discovery in preparation for the APS hearing. The scope of mutual discovery is set forth under Government Code §11507.6 (it covers the type of discovery set forth under Pen. C. §1054.3 for criminal actions)
California DMV APS Requests for Discovery
Discovery requests are governed by Cal. Code of Regulations, Title 13, section 115.05, which reads as follows:
Notwithstanding the provisions of Section 11507.6 of the Government Code and, in order to conform to the time constraints for hearings under Chapters 2 and 3 of Division 6 of the Vehicle Code:
(a) A party’s request for discovery may, with the approval of the department, be made by telephone or in person.
(b) A request for discovery must be made at least 10 days prior to the date set for commencement of the hearing to receive discovery prior to the hearing.
(c) A request for discovery may be grounds for a continuance; however, it shall not stay the action by the department.

Excessive BAC DMV APS Hearings (0.08% Or Higher)
Summary of the Issues

The DMV must prove the following three issues at an over-21 excessive BAC hearing:
(a) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23152 or 23153;
(b) That the person was arrested;
(c) That the person was driving a motor vehicle with a .08 or higher blood-alcohol level.
CVC §§13558(c)(2) and 13557(b)(2).

If the department determines that any of those facts were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, provided that the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to CVC §13551. If the DMV intends to aggravate the length of the suspension order based on a prior conviction or administrative action with offense dates within ten years, then the existence of the prior conviction or administrative action must also be proven by the DMV. CVC §13353.3.

Excessive BAC DMV APS Hearings (0.04% Or Higher—Commercial Drivers)

CVC §13353.2(a)(3) provides that the DMV shall immediately suspend the privilege of a person to operate a motor vehicle if the person was driving a vehicle that requires a commercial driver’s license when the person had 0.04 percent or more, by weight, of alcohol in his or her blood.
A driver may contest this suspension pursuant to CVC §13558(c)(2), which states that the only issues at the hearing are those contained in §13557(b)(2).
The problem is that although the Legislature has amended this statute to include a 0.04 percent limit for persons driving a commercial vehicle, CVC §13557(b)(2)(C)(iv), it failed to modify any of the other issues pertaining to the APS hearing for these cases (e.g., the statute requires a showing that the officer had reasonable suspicion to believe the driver was .08 or higher).
However, Rehman v. Department of Motor Vehicles (2009), addressed this issue and held that it would be absurd to require that showing and that it contravened the legislative intent. Thus, the issues are basically the same as they are in a zero-tolerance case, except that the limit is .04 instead of .01 percent. Hence, the DMV must establish the following by a preponderance of the evidence:
(a) That the peace officer had reasonable cause to believe that the person had been driving a commercial vehicle with a .04 percent or higher alcohol level;
(b) That the person was placed under arrest or was lawfully detained; and
(c) That the person was driving a commercial vehicle with a .04 percent or higher BAC.

Excessive BAC DMV APS Hearings (0.01% Or Higher—Under 21)
Summary of Issues

The DMV must prove the following issues at a .01% or higher excessive BAC hearing:
(a) That the peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §23136, 23140, 23152, or 23153;
(b) That the person was placed under arrest or, if the alleged violation was of 23136, that the person was lawfully detained;
(c) That the person was driving a motor vehicle under any of the following circumstances:
•When the person had a 0.08 percent or higher BAC.
•When the person was under 21 and had a 0.05 percent or higher BAC.
•When the person was under 21 and had a 0.01 percent or higher BAC, as measured by a preliminary alcohol screening test, or other chemical test.
CVC §13558(c)(2) and 13557(b)(2).

Chemical Test Refusal DMV APS Hearings
Summary of Issues
The DMV must prove the following issues at a chemical test refusal hearing:
(a) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of CVC §§23136, 23140, 23154 (effective 1/1/09), 23152, or 23153;
(b) The person was placed under arrest or, if the alleged violation was of CVC §§23136, 23140, or 23154 (effective 1/1/09), the person was lawfully detained;
(c) The person was advised that a refusal would result in a suspension or revocation of the driving privilege; and
(d) The person refused or failed to complete the chemical test or tests after being requested to do so by a peace officer.

See: CVC §13558(c)(1)
Hearing Officer’s Decision: Findings and Conclusions
Decision Announced at Conclusion of Hearing
It is rare that a hearing officer will announce an unfavorable ruling on the spot, particularly with an in-person hearing and with the driver present.
Sometimes, however, the hearing officer will announce a “set aside” of the suspension order on the spot.
Decision Sent by Mail
The most common method for notifying the driver of the APS decision is by mail, with a copy of the order mailed to counsel of record.

Findings and Conclusions
Sometimes the Order will include the hearing officer’s findings and conclusions, whereas other times the Order will simply indicate that these are available upon request.
Either way, the findings should establish sufficient legal support for the hearing officer’s conclusions.
A common tactic employed by some DMV hearing officers is to reject or disregard testimonial evidence presented by the driver, including opinions from his expert, with the naked finding that the witness or witnesses lacked credibility. Any such finding must “identify any specific evidence of the observed demeanor, manner, or attitude of the witness that supports the determination.” Gov. Code §11425.50(b).


PRIOR CONVICTIONS AND DUI DEFENSES
MOTIONS TO STRIKE PRIOR CONVICTIONS
Prosecutors used to argue, mistakenly, that criminal defendants in drunk driving cases did not have the right to strike prior drunk driving conviction sentence enhancement allegations on any grounds other than denial of the right to counsel.
They placed reliance on a series of decisions which they misinterpreted.
In 1999, the California Supreme Court finally put the whole issue to rest with its decision in People v. Allen. In this case, the court reaffirmed the non-statutory right to make a motion to strike a prior conviction when it is alleged as a sentence enhancement in a later case.
Once again, the court has buried its holding in an exhaustive treatise on the subject, but a careful reading reveals that, with one exception, nothing really has changed.
The one exception referred to above is footnote 3, which says: “Even if the defendant can prove he did not waive his constitutional rights before pleading guilty, he must also plead and prove he was actually unaware of his rights, and that he would not have pled guilty had he known his rights. (People v. Tassell (1984), overruled on another ground in People v. Ewoldt (1994); People v. Cooper (1992)”
It is helpful to an understanding of the law related to motions to strike prior convictions for unconstitutionality to know that such law is divided into three categories:
Law related to the procedures that must be followed in the taking of guilty pleas;
Law related to the type of records that must be kept to indicate that the procedures were followed; and,
Law related to the procedures to follow for the motion itself.
CVC §§ 23624 (previously CVC § 23209) and CVC § 41403, set forth the procedural scheme for a motion to strike a drunk driving prior conviction sentence enhancement allegation on the ground that the underlying conviction is unconstitutional.
Both §§ 23624 and 41403 are discussed below in detail where appropriate.
A series of forms useable for most motions to strike a prior conviction allegation and a description of the procedures for the motion is also below.
CVC § 23624: General Rule—One Challenge Per Conviction
CVC § 23209 was renumbered to CVC § 23624, operative July 1, 1999, by Stats. 1998, Chap. 118, § 69, it expressly provides that there is only one challenge permitted against each conviction, except that “a subsequent statute or appellate decision having retroactive application affords any new basis to challenge the constitutionality of the conviction.”
It further provides that a conviction found unconstitutional may not be used in any other judicial or administrative proceeding and the DMV must strike it from their records.
Trial courts are mandated to report to the DMV any determination upholding or striking a prior conviction on constitutional grounds. CVC § 1803.
Section 23624 states that it applies only to convictions of §§ 23152, 23153, 14601 and 14601.2. But actually, because of the language of CVC § 23620, it also applies to convictions under Harb. & Nav. C. §§ 655(b), (c), (d), (e) and (f) (drunk boating) and PC §§ 191.5 and 192(c)(3) (vehicular manslaughter intoxicated).
CVC § 41403: Procedure for Motion to Strike Unconstitutional Conviction
CVC § 41403 lays out the pleading requirements and hearing procedure for a motion to strike an unconstitutional conviction.
The statute, by its own terms, applies to those offenses that CVC § 23624 applies to and which are listed above.
In addition, it also applies to CVC § 14601.1 and CVC § 23103, as specified in CVC § 23103.5 (wet reckless).
CVC § 23620 is limited to “this division [11.5], section 13352, and Chapter 12 (commencing with Section 23100) of Division 11.”
Thus, the CVC § 41403 procedure is not applicable to drunk boating and manslaughter prior convictions.
Burden of Proof on Defendant
CVC § 41403 puts the by-a-preponderance burden of proof on the defendant.
Placing the burden of proof on the defendant is permissible under the U.S. Constitution (Parke v. Raley (1992).

Consider Pros and Cons
Consider your chance of winning before deciding to do a motion to strike a prior conviction allegation in a drunk driving case.
The defendant only gets one shot at each conviction (see discussion above). That means if you lose, the conviction cannot be challenged again without new authority. But if you win, you not only get the enhancement allegation removed from the complaint.

Not a Trial Motion
It is not uncommon for attorneys to confuse the issue of the trial on the fact of the enhancement allegation with the separate issue of the right to strike an unconstitutional one. Constitutional validity is not at issue in the trial on the fact of the enhancement conviction.
Do not wait until a jury trial or trial to challenge the constitutionality of a prior conviction alleged as a sentence enhancement. See People v. Vallejo (1991)
You should file a noticed motion prior to trial, but if you do not, file it to be heard at the sentencing hearing. See: CVC § 41403(c).

Advice to Aliens
Misdemeanor drunk driving convictions usually do not involve moral turpitude and usually don’t involve drugs. They don’t generally result in deportation, but there may be a situation where the alien defendant would not have entered the plea if he had been advised of the deportation possibility.
PC § 1016.5 requires a court taking a plea to provide the accused with three admonishments as to immigration consequences, and the failure to do so can be a basis for vacating the plea

DUI CHECKPOINTS



DECISION-MAKING AT SUPERVISORY LEVEL AND LIMITS ON THE DISCRETION OF FIELD
OFFICERS
One of the most commonly used challenges to a DUI Checkpoint and/or
Roadblock is to demonstrate a lack of uniformity in the operation of the
checkpoint.

Regarding the issue concerning the required limits on the discretion of
field officers, the California Supreme Court in Ingersoll v. Palmer, noted
the following:


A related concern is that motorist should not be subject to the unbridled
discretion of the officer in the field as to who is to be stopped.
Instead, a neutral formula such as every driver or every third, fifth or tenth
driver, should be employed. To permit an officer to determine to stop any
particular driver or car when there is no legitimate basis for the
determination would be to sanction the kind of unconstrained and standardless
discretion which the United State Supreme Court sought to circumcise in its
decision in Prouse, [citations omitted]. In all the checkpoint programs at issue
here, neutral mathematical selection criteria were used.

Id., at 1342 (emphasis added)


Post checkpoint records, available through discovery, will demonstrate the
pattern of detentions. Every car or every third car is neutral. A change
in patterns to adjust for traffic flow is also neutral so long as there is a
formula for the change. What is prohibited is an unjustified deviation
from the pattern which negates the neutral mathematical formula. If the
pattern suddenly changes randomly, an inference of non-neutrality arises making
the checkpoint potentially unconstitutional.

DUI DEFENSES

COMMON DUI DEFENSES

There are numerous defenses to a DUI charge; however, the defense must be reasonable if you expect it to be reasonable doubt. These are a few of the most commonly pursued defenses used in Courts to defend those charged with DUI in  Southern California.
 
The defenses set forth below and the accompanying links demonstrate the need for those charged with DUI in the County of Riverside to obtain the very best DUI defense Lawyer. The Riverside County DUI Defense Lawyers of the Riverside County's Recognized Leaders in DUI Defense. Contact one of the DUI Defense Lawyers  to see whether any of the defenses listed below apply to your Riverside  County DUI case.

THE RISING BLOOD ALCOHOL DEFENSE

Probably the most common Riverside County DUI Defense is the "rising blood alcohol" defense.  It is based, correctly so, on the fact that a person's blood alcohol level starts at zero, rises and then reaches a peak.  It thereafter begins to decline.  Because the blood or breath alcohol level at the time of driving is at issue, if it can be shown that the person was actually below a 0.08% at the time of driving, the person is not guilty of the CVC § 23152(b) charge.  

If the person was not at or above a 0.08% at the time of driving, he/she may also not have been impaired, or under the influence.  If the person was not impaired at the time of driving either, then he/she is not guilty of the crime of driving under the influence (CVC § 23152(a)) either.
 
This defense requires an experienced Riverside County DUI Attorney who has specialized knowledge in the science of driving under the influence.  The Riverside County DUI Attorney must have experience in cross-examining the DA's expert witnesses: forensic scientists from the Riverside County Crime Laboratory, who will almost always be of the opinion that the person charged was at or above a 0.08% or more at the time of driving and was thus impaired.  With the right approach, an experienced Riverside County DUI Attorney can show the jury that the person was likely below a 0.08% at the time of driving, and thus, not impaired.  Accordingly, that person cannot be guilty of the DUI charge.

THE BREATH TEMPERATURE DEFENSE & BREATH TEST VARIABILITY

Breath testing is an "indirect measurement" of the person's true blood alcohol level.  Because it is just an estimate, it is subject to a certain amount of variability.  In some cases, the amount of variability can be quite substantial and result in an over-reporting of the true blood alcohol level.  Many experts have opined that a breath testing device can over-report a person's true blood alcohol level by as much as 40-to-100% depending on the circumstances.  Therefore, one breath test subject can have a breath test result of 0.11%, but his/her true blood alcohol level could actually be only a 0.06%-to-0.09% at the time of the breath test, which was taken 15-to-45 minutes after the time of driving.  Thus, the person's true blood alcohol level at the time of driving may have been even lower than that reported at the time of the breath test.
 
Riverside County Law Enforcement agencies use a portable evidentiary breath testing (PEBT) device.  It looks just like a preliminary alcohol screening (PAS) test, but it's hooked up to a fancy computer that prints out the DUI suspect's breath test results immediately at the scene.  The device is, for all intents and purposes, no more accurate than the PAS test device, which have been known to be inherently unreliable; but because of some hard lobbying by the manufacturers of these breath test devices, they are now being used for evidentiary purposes.
 
These portable evidentiary breath testing devices are not equipped with mouth alcohol detectors and are not ethanol or alcohol specific; thus, the opportunity for false positive and/or falsely elevated readings is not uncommon.
 
A Riverside County DUI Attorney can thoroughly examine the evidence relating to the device used to test your breath on the night of your DUI arrest to determine whether any legal and/or factual defenses exist that could result in a dismissal of the DUI charges.


DUI MEDICAL DEFENSES

 
Gastric Reflux Disease, or GERD, is another commonly used defense to a DUI charge.  The viability of this defense often hinges on one being able to show that they had GERD prior to the date of the offense.  GERD has a tendency to cause errors in breath testing based on the fact that GERD causes one to bring up alcohol from the stomach, which is then pushed through the breath test device causing an elevated breath test reading.
 
With the assistance of your treating physician, an Riverside County DUI Attorney can determine whether your GERD may have had an impact on your breath test results.
 
 
Another commonly used defense is the presence of what is often-called "mouth alcohol" based on problems with one's gums (periodontal disease) or pockets in one's mouth, like those brought about by problems with one's dentures or faulty bridge work or some other periodontal issue. 

With the assistance of your treating physician, an Riverside  County DUI Defense Attorney can can determine if your periodontal disease may have had an impact on your breath test results.
 
 
Diabetes, and the issues that arise as a result of diabetes, are another common defense to a DUI charge.  The viability of the defense depends on a variety of factors.  A diabetic with low blood sugar may exhibit symptoms that mimic that a person under the influence and a diabetic with high blood sugar may cause a breath test to over-report that person's true blood alcohol level.  Diabetes is a complicated disease and the defenses associated with it are equally complicated.
 
With the assistance of your treating physician, a Riverside County DUI Attorney can determine if your diabetes may have had an impact on your breath test results.
 
 
Inner ear infections, and/or other medical issues that may have an affect on a person's equilibrium, are yet another example of commonly used DUI defenses.  When a person has an inner ear infection, or some other condition that may affect the person's ability to balance, such as vertigo, it may make a DUI suspect appear as though he/she is impaired when he/she may not be.
 
With the assistance of your treating physician, a Riverside  County DUI Lawyer can determine whether your inner ear infection or vertigo may have had an impact on your ability to perform the field sobriety tests.
 
 
Problems with a DUI suspect's back, legs and/or hips, may cause the suspect to appear as though he/she is impaired when he/she may not be.  The National Highway Traffic Safety Administration has indicated in several of its official publications that such medical conditions may affect a DUI suspect's ability to properly perform the field sobriety tests and could lead to false arrests.
 
A Riverside County DUI Defense Attorney can determine whether your injuries may have had an impact on your ability to perform the field sobriety tests.


DUI GENDER DEFENSES: DUI ISSUES FOR WOMEN

Another medical defense that often arises concerns women and the issues associated with menstrual periods.  During these times, or when a women is menopausal, women may have elevated temperatures, which may result in an over-reported breath test result.
 
Women also metabolize alcohol differently than men.  It is not uncommon for women to achieve higher blood alcohol levels as a result.  Not surprisingly, field sobriety tests and breath testing devices are predicated on male physiology.  These physiological differences between men and women may cause differences in a woman's ability to perform the field sobriety tests and may also cause breath alcohol test readings.

ANONYMOUS DUI TIPSTERS

The issue of the constitutionality of a detention based on a tip to the police by an “anonymous tipsters” has become an issue of great debate after the California State Supreme Court decision in People v. Wells and even more so after the United States' Supreme Court ruling in Navarette, especially when the officer observed no signs of impaired driving.

THE LAW BEHIND "ANONYMOUS DUI TIPSTERS" FROM THE AUTHORS OF CALIFORNIA DRUNK DRIVING LAW

In evaluating the constitutionality of a detention based on a tip to the police, note the distinction between “anonymous tipsters” (folks who telephone the police about a crime, but do not identify themselves and are not known to the police), “government agents” (informants working for the constable) and “citizen informants” (chance witnesses or crime victims who expose their identity). With regard to “anonymous tipsters” and “government agents,” there is no presumption of reliability attached to their tips. However, Navarette v. California ___ U.S. ___ (Docket No. 12-9490) (2014) held that “under appropriate circumstances, an anonymous tip can demonstrate ‘sufficient indicia of reliability to provide reasonable suspicion to make [an] investigatory stop’” [quoting Alabama v. White 496 U.S. 325, 327 (1990)].Navarette involved a dispatcher’s radio communication of a 911 report [treated by SCOTUS as anonymous] of a specifically described vehicle and license plate number that had run the caller off the road approximately five minutes ago. About 13 minutes later a CHP officer spotted the vehicle and followed it for about five minutes without observing any vehicle code violation. Employing the “totality of circumstances” test, the court found the report “bore adequate indicia of reliability” to support an enforcement stop based on the following factors:

•       The caller necessarily claimed eyewitness knowledge of the alleged dangerous driving (cf. Florida v. J.L., 529 U.S. 266 (2000), where tipster did not explain the basis of his knowledge that a young black man had a gun);

•       In spotting the truck 19 miles from the reported mile marker just 18 minutes after the call, the report was contemporaneous with the incident;

•       With it being common knowledge that 911 calls can be traced even with blocked caller ID, the tipster’s use of the 911 system provided an additional safeguard against the re-port being false (the court was careful to state that this is just one factor, and that 911 calls are not reliable per se).

After finding the tip to be sufficiently reliable, the Navarette Court then held the enforcement stop was constitutional even though the officer did not see a vehicle code violation during the five-minute observation. “Extended observation of an allegedly drunk driver might eventually dispel a reasonable suspicion of intoxication, but the five-minute period in this case hardly sufficed in that regard.” Id.Furthermore, the court rejected any contention that an officer is required to observe the manner of driving before acting on a reliable tip.

While declaring that “not all [reported] traffic infractions imply intoxication [thus allowing an enforcement stop],” it cited the following descriptions as examples of what is sufficient to reasonably suspect impairment and stop a motorist:

•       Weaving all over the roadway;

•       Crossing over the center line;

•       Almost causing several head-on collisions

•       Driving all over the road;

•       Weaving back and forth;

•       Driving in the median.

The court concluded:

The 911 caller in this case reported more than a minor traffic infraction and more than a conclusory allegation of drunk or reckless driving. Instead, she alleged a specific and dangerous result of the driver’s conduct: running another car off the highway ... As a result, we cannot say that the officer acted unreasonably under these circumstances in stopping a driver whose alleged conduct was a significant indicator of drunk driving.

Navarette followed the California Supreme Court’s decision in People v. Wells (2006) 38 Cal.App.4th 1078. In Wells, the dispatcher broadcasted “a possibly intoxicated driver ‘weaving all over the roadway,’” and described the vehicle as an “80s model blue van traveling northbound on Highway 99 at Airport Drive.” The officer, who was heading southbound 3 to 4 miles away from that location when he got the call, positioned himself on the shoulder of northbound Highway 99. “Two or three minutes” later he saw a blue van traveling approximately 50 miles per hour. He made an enforcement stop without independently observing any unusual, suspicious, or illegal driving. Citing “the grave risks posed by an intoxicated highway driver,” Wellsheld that a brief, investigatory stop was justified under the circumstances even though the tip was treated as anonymous. While approving a lower court ruling inLowry v. Gutierrez (2005) 129 Cal.App.4th 926, and following a non-binding federal opinion in United States v. Wheat (8th Cir. 2001), 278 F.3d 722, the court declared that “there is a sound and logical distinction between the vehicle stop in the present case and the frisk found unconstitutional in [Florida v. J.L. (2000) 529 U.S. 266 (anonymous tip reporting a young, African American man in a plaid shirt, standing at a particular bus stop and carrying a gun)]. Seizing on J.L.’s statement that there may be “circumstances under which the danger alleged in an anonymous tip might be so great as to justify a search even without a showing of reliability...[such as a report] of a person carrying a bomb...,” J.L., at 273-274, the Wells Court found that a “drunk driver is not at all unlike a bomb, and a mobile one at that [citing the Vermont Supreme Court in State v. Boyea (2000) 765 A.2d 862, 867-868].” As in Wheat, the court further found that the tip’s lack of “predictive information” was not critical to determining its reliability. It also cited Michigan Department of State Police v. Sitz(1990) 496 U.S. 444, 455, for the proposition that the high court has sanctioned the “stopping of all drivers to investigate possible drunk driving despite any articulable facts indicating an immediate risk of harm.”

The Wells Court set forth three requirements that must be met for an anonymous tip to provide reasonable suspicion to justify a DUI traffic stop, and they closely parallel the factors found sufficient in Navarette:

1.     First, the tipster must furnish sufficient identifying information regarding the vehicle and its location, so the officer and reviewing courts may be reasonably sure the vehicle stopped is the one identified by the caller.

2.     Second, the tip should indicate the caller had actually witnessed a contemporaneous traf-fic violation that compels an immediate stop, rather than merely speculating or surmising unlawful activity.

3.     Third, at least the “innocent details” of the tip must be corroborated by the officers. Wells, at 1085-1086.

CONCLUDING REMARKS

The prosecution bears the burden of proof when it comes to a warrantless detention, and that the constitutionality of a detention is determined by what the officer knew at the time he made the stop. It is often wise to not ask a question in a Pen. C. §1538.5 motion to suppress hearing where the evidence has not yet proven a particular point. Also, be mindful that Navarette was a 5-4 decision which the majority labeled “a close call” (thus, evidence falling short of what took place inNavaratte can change the outcome).

 

Contact the topINDIO DUI lawyer now if you were charged with a DUI or any other type of criminal offense.

 


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